How do the courts decide whether or not to grant bail?

What is bail?

If a defendant is granted bail it means they are allowed back into the public while they await trial or further police investigations, instead of being remanded in custody (ie, locked up).

A person can be released on bail at any point from the moment they have been arrested. This may be granted in the police station after interview or the court after the preliminary hearing. Discretion for granting bail lies with the authorities in charge.

Police powers to grant bail

If the police custody officer releases the defendant on bail, this is usually on condition that they return to the named police station at a certain date or turn up at court for a preliminary hearing.

The custody officer may refuse bail if:

  • the defendants name and address cannot be obtained or;
  • if there is any doubt that the details given are incorrect or false.

What happens if a defendant fails to return?

If a defendant released on bail fails to either return to the police station at a specified time, or turn up to court on the given date (depending on what conditions were set with the bail), the police have the power to order the arrest of that person for breach of their bail conditions.

Conditional bail

Under the Criminal Justice and Public Order Act 1994, the police have the power to impose conditions on granting bail. These include:

  • suspect has to surrender his passport;
  • report to the police station at regular intervals set by the custody officer;
  • have another person stand as surety for his surrender.

These conditions are imposed to ensure the defendant follows the stipulations of his/her bail, does not commit another offence while on bail and does not interfere with any witnesses during his/her release.

If police bail is refused

If the custody officer decides to refuse bail, the defendant must be taken in front of the magistrates’ court at the first possible opportunity.

If the magistrates’ court cannot deal with the whole case at first instance, it will set a date for a future hearing and decide whether or not to grant of bail until then.

The Bail Act 1976

When assessing whether to grant bail, courts must – under the Bail Act 1976 (BA 1976) – start with the presumption that an accused should be granted bail, unless there is a justified reason to refuse it.

The court will consider:

  • the nature and seriousness of the crime;
  • the character of the defendant, his/ her past criminal record, associations and ties with the community;
  • the defendant’s previous record of abiding by his/ her bail conditions;
  • the strength of the evidence against the defendant.

If a defendant is charged with a crime not punishable with a prison sentence, bail can only be refused if the defendant has failed to surrender to bail in the past and there are grounds for reasonably believing the defendant is likely to do the same thing again.

What is surety?

The court and/or the police can require a person to act as surety for the defendant before granting bail. A surety is where another person who is prepared to promise to pay the court a certain sum of money should the defendant breach any of his bail conditions, such as failing to attend court. No money has to be paid unless the defendant breaches bail.

Restrictions on bail


Where a murder case is to be sent to the Crown Court, magistrates have no jurisdiction to consider bail. Under the Coroners and Justice Act 2009, bail may not be granted to someone charged with murder by the Crown Court unless it is satisfied that there is no significant risk that, if released on bail, that person would commit an offence that would be likely to cause physical or mental injury to another person.

Repeat serious offenders

Where a person is charged with attempted murder, manslaughter, rape or a serious sexual offence and they have already served a custodial sentence for a similar offence, they will only have a right to bail where there are exceptional circumstances.

Offences committed while on bail

If a person aged 18 or over, is on bail when s/he committed an offence, s/he will not be granted bail unless the courts are satisfied that there is no chance that the offender will re-offend while on bail again.

Drugs offences

Where the defendant is charged with a Class A drug-use related offence, s/he need not be granted bail unless the court is of the opinion that there is no significant risk of his committing offences on bail (paras 6A-6C pt 1 sch 1 of BA 1976).

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Article written by...
Lucy Trevelyan LLB
Lucy Trevelyan LLB

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Lucy graduated in law from the University of Greenwich, and is also an NCTJ trained journalist. A legal writer and editor with over 20 years' experience writing about the law.