Describe how it is decided whether or not to grant bail to a person awaiting trial.

If bail is not awarded the freedom and liberty of the accused is taken from them. If bail is awarded the public need to be assured that there is no risk to them.

Grade: A-C | £0.00.

Describe how it is decided whether or not to grant bail to a person awaiting trial.


This is probably the best area of the law to illustrate the balancing act that sometimes occurs between an individual's rights and those of the public. The question of whether the defendant is entitled to remain at large or if he should be remanded in custody treads a very thin line. The matter is now the subject of statutory provision in the form of the Bail Act 1976 as amended by the Bail (Amendment) Act 1993 and the Crime and Disorder Act 1998 and the Criminal Justice Act 2003.


Bail, if granted, entitles the defendant to remain free until the next stage of the case against him. At the next court hearing the defendant is expected to appear as required.  It is an important decision and the decision made must be seen to be justified and unbiased. Consideration to the factors specified in the Police and Criminal Evidence Act 1984 and the European Convention on Human Rights (as enacted in the Human Rights Act 1998) must be given. 


The starting point is that there is a presumption of bail. This means that the police and courts must grant bail and release the prisoner unless there are good reasons not to do so. In the event that the defendant is not granted bail he will be kept in custody. There are some exceptional circumstances when this right to bail does not apply e.g. in some extradition proceedings and usually after conviction.


It is important to remember that both the police and magistrates can grant bail and, in both cases, conditions may be attached to bail. In the case of police bail typical conditions might be to report back to the police station, to obey a curfew, not to re-offend, to stay away from certain people or places, or to appear at a court at a later date. The police may ask for a financial guarantee to ensure that the suspect returns to attend court.

The police may also release a suspect on bail without charge as long as they inform the suspect of the offence which is alleged against them.  The
Police (Detention and Bail) Act 2010 has now re-defined the way in which the the limit of 96 hours on the period someone may be detained by the police before they must be either charged or released.  The previous method of calculation by the police had been challenged in a high court ruling.


The Criminal Justice Act 2003 made alterations to provisions relating to the charging of offenders at the police enquiry stage. Ordinarily a suspect would be the responsibility of the custody officer under the provisions of PACE (the Police and Criminal Evidence Act 1984). The 2003 Act recognises that the Crown Prosecution Service is now often a participant in the charging process in that they often advise on the nature of the charge and the adequacy of the evidence.


This means that if, at any time whilst the defendant is in detention, the Crown Prosecution Service takes the view that there is sufficient evidence to bring charges, they will advise the police accordingly. In addition, if the custody officer is of the opinion that the suspect should be charged or cautioned, but is awaiting a charging decision by the Crown Prosecution Service, then the police will usually grant bail providing there are no reasons why bail should not be granted. The 2003 Act has in effect made practical amendments to meet the operational requirements of the police and CPS.


The custody officer can refuse to grant bail if the suspect's name and address cannot be ascertained or if there are doubts regarding the authenticity of the suspect's name and address. The police can also refuse to grant bail if they are concerned about the safety of the suspect or other people involved in the case. The police may have concerns that the suspect will not attend court or that he may approach possible witnesses and in these circumstances bail may also be denied.


If the custody officer does not grant bail the defendant should be referred to the magistrates' court at the earliest opportunity


Should it not be possible to deal with the case at first instance the court will make a decision regarding bail until the trial date, which they will set.


Magistrates can grant bail with or without conditions. This is usually granted on the basis that time will be needed to get the case ready for hearing to the plea stage. Magistrates may refuse bail and order the defendant to be held on remand (custody). Any appeal hearing is going to be important in the sense that it can have a profound effect on how the matter proceeds. It is no small matter to take away an individual's right to freedom at this stage. Therefore considerable care is taken to ensure that the Magistrates have the necessary information to help them make a decision. The Magistrates will hear representations from both sides. If bail is granted the prosecution are able to appeal if the offence is punishable by at least 5 years imprisonment.

The Legal Aid, Sentencing and Punishment of Offenders Act 2012 now allows prosecutors to appeal against crown court bail rulings.  This measure was introduced as an amendment to the Bill following a campaign by the family of Jane Clough who was stabbed by her boyfriend who was on bail at the time accused of raping her.


If bail is refused reasons must be given and these need to be substantial. Such reasons might be the failure to surrender to bail (failure to appear), that further offences have been committed or that witnesses have been interfered with. The fact that bail has been refused does not prevent subsequent applications for bail from being made but there is no inherent right to apply.


The grounds for refusing bail are set out in Schedule 1 to the Bail Act 1976. The legislation makes it clear that there are some factors which are only right to be taken into account. These factors include the nature and seriousness of the offence, a previous record, a previous bail record and the strength of the case against the defendant. This means that the Magistrates must give consideration to these factors as part of their decision making.


If a suspect is charged with an offence for which there is no sentence of imprisonment it would be rare for the court to refuse bail unless there is a history of the suspect not attending court in the past. The court has to inform the suspect why certain conditions are imposed or why bail has been refused.

There are clearly some cases which are so serious as to override the presumption of bail. This includes murder, attempted murder, manslaughter or rape or attempted rape and where the defendant has a prior conviction for such an offence. In such cases and in the unlikely event that the court does grant bail they must state the reasons for doing so.


There have been incidents of individuals who have gone on to commit serious offences when they are on bail. The Criminal Justice Act 2003 has deliberately tried to reduce the risk of such problems by making it clear that there will be a presumption against bail 'to a defendant aged 18 or over unless the court is satisfied that there is no significant risk of his re-offending on bail.'


It is now well known that there is a relationship between drug use and offending and the Criminal justice Act 2003 places restrictions on adult drug users being granted bail in some situations.


If a decision is made that the suspect is not granted bail there are custody time limits which will be applied. After the custody time limit has run out the court will have to release the subject on bail or the prosecution will have to get an extension from the court. The custody time limits vary from 56 days for trial in the Magistrates' Court to 70 days for committal to the Crown Court and 112 days from committal to Crown Court trial.


Bail: Legal Guidance: The Crown Prosecution Service

CPS Legal Guidance

BBC News - Jane Clough campaign: Bail law loophole closed

'Police Bail' Bill and three private Members' Bills receive Royal Assent

Being charged with a crime - GOV.UK

Criminals on bail commit one in seven murders: Suspects released



The essay explains that the starting point is that there is a presumption of bail, that the police as well as the courts can grant bail and that conditions may be attached to bail.

The relevant statutory provisions are mentioned - Bail Act 1976 as amended by the Bail (Amendment) Act 1993 and the Crime and Disorder Act 1998 and the Criminal justice Act 2003.

Examples of reasons for refusal of bail are given. Factors which need to be taken into account are also explained as well as serious cases which override the presumption of bail and that restrictions are placed on adult drug users in some situations.

The essay could be easily adapted to add emphasis to particular aspects if required.

Word Count 1351


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