This is a pre-trial matter that determines where a suspect should remain in custody or released pending trial. A suspect may be released on bail:
- After their arrest
- Prior to the trial after receiving a charge
- During the trial process particularly if there is an adjournment.
Bail upholds Article 5 ECHR, that a suspect has right to liberty and subsequently retaining the principle that the suspect is innocent until proven guilty.
The decision for giving bail resides with the custody officer, with this power being given to them by S38 Police and Criminal Evidence Act 1984. However, bail can be refused:
- the suspect's name and address can't be obtained
- detention is necessary for the protection of the suspect or someone else
- there is reasonable suspicion that a suspect will fail to attend court, or interfere with the administration of justice.
Bail is granted in the majority of cases and S37 PACE allows a suspect to be bailed even when they have not been charged on the agreement that they will return to the police station on a given date i.e. Joanna Yeates murder case, Chris Jeffries was released on bail.
Under the Criminal Justice and Public Order Act 1994 the police can impose conditions on bail:
- suspect surrenders their passport
- report regularly to the police station
- remain under curfew
If bail cannot be granted then the suspect must appear at the Magistrates' Court ASAP.
The Court's powers for granting bail are contained within The Bail Act 1976, where s4 stipulates a presumption in favour of the granting of bail. Nonetheless, if the court has substantial grounds for believing a suspect may:
- Commit another sentence while on bail
- fail to surrender to bail
- interfere with witnesses or obstruct justice
- the suspect should remain in custody for their own protection.
Schedule 1, paragraph 9 of the Bail Act 1976 outlines what needs to be considered when deciding whether to grant bail:
- Nature and seriousness of the offence
- character, past record and associations of the defendant
- a defendant's previous record of surrendering to bail
- the strength of the evidence
Restrictions on Bail
There have been several amendments to the Bail Act 1976 over the concerns that bail was given too freely, or the likelihood of suspects committing further offences while on bail.
- Criminal Justice Act 2003: s14 states that bail is refused if a defendant was on bail at the date of an offence. s18 states that the prosecution has a right to appeal against the granting of bail for any imprisonable offence. s19 states that bail is denied for an imprisonable offence where the defendant had tested positive for Class A drug use.
- s25 Criminal Justice nd Public Order Act 1994 & s56 Crime and Disorder Act 1998: does not allow bail to be granted in cases of murder, manslaughter and **** where the defendant has served a previous custodial sentence.
- s115 Coroners and Justice Act 2009: when charged with murder, bail can only be granted by a Crown Court Judge.
- Police (Detention and Bail) Act 2011: as a result of R and Salford Magistrates' Court v Hookway, this emergency piece of legislation was passed. The law amends PACE 1984 to stipulate that a suspect cannot be released on bail without charge for longer than 96 hours.
Advantages and Disadvantages of Bail
- Defendant can maintain employment and spend time with family
- Defendant can remain in contact with their legal representative allowing them sufficient time in which to prepare for their trial
- Economic, since there are fewer defendants on remand. The Home Office suggests that up to 20% of defendants on remand actually go on to be found innocent or are given non-custodial sentences.
- There is a risk that the defendant will obstruct the course of justice. In the case of Shannon Matthews, if the suspects were to be granted bail this would have given them an opportunity to further sabotage the investigation
- Courts interpret the Bail Act 1976 differently
- Home Office statistics illustrate that 12% of bailed defendants fail to appear at trial
- Approximately 1/3 of burglaries are committed by bailed suspects.