Bail=Being at liberty while the case is advancing to the next stage.
Remand= Being denied bail, being held in custody.
Every person has a right to ask for bail.
The Base of Bail
Bail Act 1976-sets out the rule of bail, the powers to grant bail and the framework for the important decisions in granting bail.
· Begins with presumption in favour of granting bail. In keeping with:
o Article 5: Right to Liberty
o Article 6: Right to fair trial-i.e innocent until proven guilty
Vass was on bail for ****** his girlfriend, Jane Clough.
Whilst bailed, he brutally murdered her.
The police initially refused bail in this case, but it was granted by the court.
Police Powers to Grant Bail
· Street Bail: At place of crime. Power is available under Criminal Justice Act 2003. Suspects do not have to be taken to the station, they come at a later date, so police time is spent more effectively.
· Bail Before Charge: The suspect is released while the police make further enquiries. Power under Bail Act 1976.
· Bail After Charge: The defendant is bailed after being charged with an offence. A date is set for them to appear at Magistrates’ Court. Power under Bail Act 1976.
They make the decision to grant bail in the police station. They have this power under S.38 of the Police and Criminal Evidence Act 1884, A.K.A PACE, as amended by the Criminal Justice and Public Order Act 1996.
Refusin Police Bail
Bail can be refused if:
· The suspect’s name/address cannot be discovered.
· There is doubt that the name/address given are genuine.
Police can arrest anyone who fails to surrender to bail.
Reforms to Police Bail
Police (Detention and Bail) Act 2011:
Paul Hookway Case: The Court ruled that it was unlawful to bail someone indefinitely while investigating a case. The court ruling put a time limit on police enquiries; they had to decide the charge or release within 96 hours. Police could no longer ‘stop the clock’: detain the suspect for 48 hours, release while they make enquiries, and then detain for another 48 hours. The government responded by passing emergency legislation to restore the police power to grant bail until their investigation is complete.
Court Powers to Grant Bail
The Magistrates’ Court step in where the police are not prepared to grant bail. Approximately 5 out of 6 people charged with crime are granted bail by the police. In the bail hearings, the Magistrates listen to arguments from the prosecution and defence on the defendant’s suitability for bail.
Bail Act 1976 is the key act. Presumption in favour of defendant being granted bail. S.4 of Bail Act 1976; general right to bail. Though, the court doesn’t have to grant bail if it is satisfied there are grounds enough to believe that the defendant would:
· Fail to surrender to custody
· Commit an offence while on bail
· Interfere with witnesses or otherwise obstruct the course of justice
· The defendant should be kept in custody for his own protection
Factors in Deciding to Grant Bail
Police and Courts must consider:
· Nature and Seriousness of offence: serious offences more likely to get prison sentences.
· Person’s character/past record/associations/community ties: Defendant with connections to the community such as family, job, is less likely to abscond.
· Previous Grants of Bail: Defendant’s behaviour on previous grants of bail taken into account, to determine if defendant will abscond/surrender to bail.
· Strength of the Evidence Against the Defendant: Strong evidence makes a conviction more likely. Weak evidence=likely acquitted, so bail more likely.
In an offence not punishable by imprisonment, bail can only be refused if defendant previously failed to surrender to bail.
Types of Bail
· Unconditional Bail: No conditions to bail beside returning to court when told to.
· Conditional Bail: Conditions make sure the defendant doesn’t abscond, ensure that they don’t reoffend or interfere with witnesses/victim.
Both the police and the courts have the power to attach conditions to bail. Courts can attach stricter conditions, such as living in a bail hostel. But conditions can only be attached to make sure:
· Suspect surrenders to bail
· Doesn’t reoffend while on bail
· Doesn’t interfere with witnesses, or course of justice in any way.
Police Bail Conditions
The power to attach conditions given to police under Criminal Justice and Public Order Act 1994.
Police can attach the following conditions:
· Report daily to a police station.
· their passport.
· Surrender Standing a surety= a relative paying a certain amount if the defendant absconds.
If the conditions are broken or the suspect fails to attend court without reasonable excuse then they are arrested and taken to the Magistrates’ Court who can take away their bail.
Court Attached Bail Conditions
The Court can make conditions for granting bail only if there are specific and justifiable reasons. They can attach conditions similar to the police, e.g defendant surrendering passport. Court can also impose other conditions:
· To live and sleep each night at a certain address.
· Not to come within a certain location except to see a solicitor by prior written appointment or to attend court.
· Not to apply for any travel documents.
· To observe a curfew between certain hours.
· Attend a drug rehabilitation programme
· Attend anger management programmes.
· Terrorist Suspect: Had to surrender all telephones, and could only use police monitored phone.
· Standing a surety.
Examples of Conditional Bail
Pete Doherty: Facing drink driving charges and admitted two drug possessions. Has curfew from 7 p.m til 7 a.m, except at gigs. He’s prohibited from travelling in the front seat of a vehicle, and fitted with a medical implant to prevent drug abuse. He’s prohibited from using illegal substances, must attend Narcotics Anonymous and manager Andrew Boyd stood surety of £50’000
Julian Assange: Wikileaks founder, wanted for **** in Sweden. Granted bail with restrictions on movements, plus two sureties totalling £40’000, with deposit of £20’000. Restricted to house owned by Vaughan Smith. Has to report to police daily, and wear a tag.
Disadvantages of Bail
· Reoffending whilst on bail: Bail allows for people who may be a danger to society to be out in the public. Bail Act 1976 states bail can be refused if there’s a risk of the suspect reoffending. In 2008, the Ministry of Justice reported that 1 in 10 murderers kill whilst on bail. Gary Newlove: beaten to death by a group of kids outside of his house in Warrington. One of the group, Adam Swellings, was out on bail conditional to staying away from the area.
· Absconding: Bail bandits=those who abscond or disappear whilst on bail. Bail Act states bail cannot be granted if there is a risk of the defendant absconding. In January 2005, the Government announced ‘Operation Turn-Up’. Attorney General; ‘My advice to those who have skipped bail is to surrender now rather than wait for the police to come and get you.’
More Disadvantages of Bail
· Bail Hostels: One of the conditions that can be imposed on bail. A communal house for people awaiting trial or prisoners on early release. Houses higher risk prisoners, drug users. They have been shown to be unable to cope with the offenders, greater control and supervision is needed. The hostels are also staffed with inexperienced people. Frank Porter: Convicted ********** and child murderer was released on license to a bail hostel, and under secret observation was found in the company of children, despite past record and risk.
· Prison Overcrowding: U.K prisons are too full. There are 2 types of prisoner, convicted offenders and people held on remand. Common opinion is that prison should be kept for people who have been found guilty beyond reasonable doubt. People on remand are yet to be found guilty, and remand population in prisons stands at 22%. So, judges are forced to grant bail even to suspects they don’t want to, because there is nowhere else for them to go.
Advantages of Bail
· Bail shows respect for human rights: Article 5, Article 6. Allowing people to be free until their trial shows the legal system respects human rights until there is a valid reason not to, e.g a guilty verdict.
· Bail allows people to get on with their lives: Without bail, defendants are imprisoned meaning possibly innocent people are forced to face undue jail time. Some remanded prisoners will not be found guilty, but also will not be compensated for time spent in remand. This could cause the defendant to lose their job, reputation. Bail allows them time with family and friends before possible imprisonment.
· Bail prevents suicide: High rates of suicide amongst remand prisoners. A significant amount of innocent defendants on remand attempt suicide.
· Bail eases prison overcrowding: Some argue that too many people are refused bail, as 22% of people in prison are on remand. These remanded people have not yet been found guilty. Detaining defendants who may be innocent takes up unnecessary space.
Restrictions/Reforms of Bail
There has to be a balance between the interests of the yet to be convicted defendant and the protection of society from potentially dangerous suspects and criminals. There were concerns that the Bail Act 1976 gave bail too freely.
· Repeat serious offence-S. 25 Criminal Justice and Public Order Act 1994: This act banned courts granting bail in cases of murder/attempted murder/manslaughter/****/attempted **** where defendant had already served a custodial sentence for a similar offence. This act was challenged as being in breach of ECHR. So in 1998 the Act was abolished.
· S. 56 Crime and Disorder Act 1998: Introduced rule that the defendant can only be granted bail in serious offences if the court is satisfied there are EXCEPTIONAL CIRCUMSTANCES.
· S.14 of Criminal Justice Act 2003: Where the defendant is aged 18 or over and on bail when the alleged offence was committed, this Act amends the Bail Act 1976 to read ‘he may not be granted bail unless the court is satisfied that there is no significant risk of his committing an offence on bail’.
· Coroners and Justice Act 2009: This Act underlines the need for a cautious approach where defendant poses a risk of harm. Provisions of Act focus primarily on bail for alleged murder
· Bail for murder cases can only be ordered by a Crown Court Judge.
· Defendant charged with murder may not be granted bail unless the court thinks there is no significant risk of him committing an offence likely to cause injury.
Bail Risks: An example
Gary Weddell: Well respected police officer murdered his wife during a jealous argument. He was granted bail under a surety of £200’000. Whilst on bail, he went on to murder his mother in law and then killed himself. Nothing to indicate his actions; clean record, respectable job, family ties to community.