The general right to bail
Courts will sometimes adjourn a criminal case before passing sentence on the defendant. This may be because they wish for more time to consider the sentence, so that reports on the defendant can be prepared or because new evidence has come to light during the case and further enquires are needed.
Under s 4 of the Bail Act 1976, each time a defendant is remanded after conviction for enquiries or a report, he must be granted bail without condition, if none of the exceptions to bail apply.
Conditions of bail may only be imposed where necessary to ensure the exceptions to bail are addressed. Only where conditions are not sufficient to address the exceptions to bail should a remand in custody be sought.
If the accused is charged with an offence punishable with imprisonment, bail need not be granted if the court is satisfied there are substantial grounds for believing that if the defendant was to be released on bail, they would:
- fail to surrender to custody;
- commit another offence while on bail;
- interfere or intimidate witnesses or otherwise obstruct the course of justice.
Under s 5 of the Bail Act 1976, the court or officer refusing bail or imposing conditions must give reasons for their decision.
Under s 25 of the Criminal Justice and Public Order Act 1994, a defendant cannot be granted bail if they have been convicted of murder, attempted murder, manslaughter, rape or attempted rape, or other specified offences under the Sexual Offences Act 2003 and he has been convicted of any of these offences, or culpable homicide, in the past, unless exceptional circumstances apply (where the previous conviction is for manslaughter, the restriction applies only if the defendant received a custodial sentence).
What is considered when applying for bail after conviction when there is a delay in passing sentence?
When the defendant applies for bail after their conviction due to a delay in passing sentence, the court must consider:
- the seriousness and nature of the offence;
- the character, antecedents, associations and community ties of the defendant;
- the defendant’s record in respect of answering bail in the past;
- the strength of any evidence against the defendant;
- the likelihood of the defendant committing an offence or causing physical or mental injury to another if released on bail.
Bail in the magistrates’ court
A defendant may apply for bail at the magistrates’ court when:
- they are brought before a magistrates’ court and the hearing is adjourned;
- they have been convicted summarily and the magistrates adjourn the proceedings to consider sentence.
The defendant can make two applications for bail before the magistrates, after these a new application does not need to be heard unless the defendant has a new argument to put forward.
Appeal to the Crown Court
Under s 81 of the Senior Courts Act 1981, a defendant may appeal a decision of a magistrates court to withhold bail, but only where he or she has obtained a certificate from the magistrates (under s 5(6A) of the Bail Act 1976) that they have heard full argument from the defendant before refusing his application.
Failure to surrender
If a defendant who has been released on bail fails without reasonable cause to surrender to custody they are guilty of an offence. It is punishable as a summary only offence (maximum penalty 3 months and/or a fine), or as a contempt of court. If sentenced in the Crown Court (whether dealt with as a contempt of court or committed to the Crown Court for sentencing) the maximum penalty is 12 months’ imprisonment and/or fine.