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Bail

SFO OPERATIONAL HANDBOOK

The SFO Operational Handbook is for internal guidance only and is published on the SFO’s website solely in the interests of transparency. It is not published for the purpose of providing legal advice and should not therefore be relied on as the basis for any legal advice or decision. Some of the content of this document may have been redacted.

For the purpose of this chapter the following terms and abbreviations are used:

ABP – Applicable Bail Period

BA 1976 – Bail Act 1976

Bail Return Date – the date on which a suspect who is released on pre-charge bail is due to return to the police station.

Bail Start Date – the day after the day on which the person was arrested for the relevant offence

CTL – Custody time limits

PACE – Police and Criminal Evidence Act 1984

RIC – Remand in custody

Introduction

A grant of bail is the release of a suspect/accused subject to a duty to attend at an appointed place and at a given time (‘surrender to custody’). It may be granted by a police officer following arrest, by a custody officer on release from a police station whether before or after charge or by a court following charge (including where a written requisition has been issued).

Bail in SFO cases

There will be occasions in an SFO investigation when early arrest and interview are sought but it is not likely, or indeed practicable, that the SFO will be in a position to charge.

Pre-charge bail before 3 April 2017

Before 3 April 2017 the decision as to whether a suspect was released on bail before charge was a matter for the arresting officer or, once a suspect had been taken to a police station, a matter for the custody officer.

No statutory time limit was set for bail imposed on suspects who were arrested before 3 April 2017.

Bail could be imposed by a custody officer under PACE s.37(2) if it was anticipated, for example, that a suspect would have to be interviewed or further interviewed under caution when he answered bail. In limited circumstances a custody officer could attach conditions to bail granted under s.37(2).

If, however, at any time during a suspect’s detention the custody officer became aware that the grounds to detain the suspect had ceased to apply and there were no other grounds to justify his detention it was the custody officer’s duty to release the suspect from custody (PACE s.34(2)).

Pre-charge bail post 3 April 2017

The provisions relating to bail contained in PACE have been amended by the Policing and Crime Act 2017 insofar as they apply to suspects arrested on or after 3 April 2017.

Only members of the SFO who have received the Applying for Pre-Charge Bail training, may make applications for pre-charge bail under the new provisions.

As a result of these changes, bail may only be imposed on a suspect who has been arrested and held in police custody if certain “pre-conditions” for bail (set out below) exist.

The presumption now is that suspects will be released without bail unless pre-conditions for pre-charge bail are met

Any release on bail after 3 April 2017 will also be subject to a time limitation referred to as the Applicable Bail Period (“ABP”).

There are specific provisions in PACE addressing the ABP in SFO confirmed cases.

The text which follows refers to the position as it is post 3 April 2017.

Bail at the Police station

When a suspect is arrested for an offence, and he is not granted bail by the arresting officer under PACE s.30A, then, if he is not already at a designated police station, he must be taken to one ‘as soon as practicable after his arrest’. (PACE s.30).

Once a suspect has been taken to a police station, if it appears to a constable that the suspect would, if he were released, be liable to be arrested for some other offence he should be arrested for that other offence as well. (PACE s.31).

The custody officer now has power to impose bail under PACE s.37(2) and s.34(5). The distinction is no longer important insofar as conditions may be attached to bail when it is imposed under either provision and in either case the bail it is likely that it will be referred to as ‘bail under Part IV of PACE.’ It is important, however, to understand the procedural distinction between the s.37(2) and s.34(5).

PACE Section 37(2)

When the suspect arrives at a police station it is the duty of the custody officer to determine, ‘as soon as practicable’, whether there is sufficient evidence to charge him with the offence for which he was arrested (PACE s.37 ss. (1) & 10).

If the custody officer determines that he does not have sufficient evidence to charge the suspect he must:

  1. Release the suspect without bail; or
  2. If the pre-bail conditions are satisfied, on bail (PACE s.37(2))

However, if he believes ‘on reasonable grounds’ that the suspect’s detention is necessary to secure or preserve evidence relating to the offence, or to obtain such evidence by questioning, may order the suspect to be detained (PACE s.37(3)).

The pre-conditions for bail, which apply for all purposes in Part IV PACE are:

  1. That the custody officer is satisfied that releasing the person on bail is necessary and proportionate in all the circumstances (having regard, in particular, to any conditions of bail which would be imposed), and
  2. That an officer of the rank of inspector or above authorises the release on bail (having considered any representations made by the person or the person’s legal representative (PACE s.50A).

A release on bail under Part IV of PACE shall be a release on bail granted in accordance with ss. 3, 3A, 5 and 5A of the Bail Act 1976 (PACE s47(1)).

Bail ‘granted’ in these circumstances imposes a duty on the suspect to attend at a named police station at the time appointed by the custody officer. (PACE s.47(3)(c)).

When the suspect returns to a police station to answer bail granted under Part IV of PACE (i.e. including under s.37(2) or s.34((5) he is to be treated as arrested for an offence in respect of which he was granted bail (PACE s.34(7)).

When the suspect attends a police station to answer his bail the custody officer must again determine whether there is sufficient evidence to charge him.

If the custody officer determines that he does not have sufficient evidence to charge the suspect he must:

  1. Release the suspect without bail; or
  2. If the pre-bail conditions are satisfied, on bail. (PACE s.37(2)).

However, if he believes ‘on reasonable grounds’ that the suspect’s detention is necessary to secure or preserve evidence relating to the offence, or to obtain such evidence by questioning, he may order the suspect to be detained (PACE s.37(3)).

PACE Section 34(5)

If at any time the custody officer becomes aware, in relation to the suspect who is detained, that the grounds for the detention have ceased to apply: that is to say that his detention is no longer necessary to secure or preserve evidence or obtain evidence by questioning, and there are no other grounds to detain the suspect, it is the duty of the custody officer to order the arrested person’s immediate release from custody (PACE s.34(2)).

A person who is released under this provision shall be released without bail unless it appears to the custody officer:

  1. That there is a need for further investigation of any matter in connection with which he was detained at any time during that period of his detention (PACE s.34 (5A); and
  2. That the custody officer is satisfied that releasing the person on bail is necessary and proportionate in all the circumstances (having regard, in particular, to any conditions of bail which would be imposed) (PACE s.50A(a)); and
  3. That an officer of the rank of inspector or above authorises the release on bail (having considered any representations made by the person or the person’s legal representative) (PACE s.50A(b)).

When a person is released on bail under s.34 PACE the custody officer now has power, as he does under s.37(2), to impose bail conditions. (PACE s.47 (1A)).

Pre-charge bail conditions

Custody officers have the power to put limited conditions on pre-charge bail and the SFO should make any representations they have as to suitable bail conditions to the custody officer. These representations should be set out on the initial application form for pre-charge bail. See the [Initial Application for Pre-Charge Bail Form, held in Operational Stock Forms].

According to s.47(1A) of PACE, custody officers have the “normal powers” to impose bail conditions where a person is released on pre-charge bail pursuant to Part IV PACE.

Sections 3 and 3A of the Bail Act 1976 (“BA 1976”) explain that “normal powers” means that conditions can only be imposed if the custody officer considers them necessary to prevent the suspect from:

  • failing to surrender,
  • committing an offence while on bail, or
  • interfering with witnesses or otherwise obstructing the course of justice.

The custody officer has the power to vary any conditions imposed on pre-charge bail (Ss.3(8) and 3A(4) BA 1976). Any application by a suspect to vary those conditions has first be made to the custody officer. A magistrates’ court also has the power to vary these conditions (s.47(1E) PACE).

The SFO does not have the power to amend bail conditions. This must be done by the custody officer or the magistrates’ court.

Any release on bail after 3 April 2017 will also be subject to a time limitation referred to as the Applicable Bail Period (“ABP”). In most cases, this will be for a period of 28 days.

SFO Confirmed Cases

Section 47ZB(c) defines an “SFO case” as a case in which

  1. the relevant offence in relation to the person is being investigated by the Director of the Serious Fraud Office, and
  2. a senior officer confirms that sub-paragraph (i) applies.

“Senior officer” means a police officer with the rank of superintendent or above.

If a superintendent does not confirm that the SFO is investigating a case then for the purposes of s.47PACE, it is not an SFO case.

In an SFO case, if the pre-conditions for bail are met, a suspect may be released on bail with an ABP of 3 calendar months from the Bail Start Date. In all other cases, the initial ABP is for a period of 28 days.

The Bail Start Date is the day after the person was arrested for the relevant offence.

It is the custody officer that makes the decision about whether bail and any conditions are imposed. The custody officer must ask for representations from the suspect or their legal advisor. As above, an inspector will then need to approve the imposition of bail.

It is very important to ensure that a superintendent confirms that a case is an SFO case at the earliest possibility, otherwise the suspects’ initial ABP will be limited to 28 days. It is not possible to confirm that a case is an SFO case retrospectively once the suspect has been released from police custody.

SFO Exceptionally Complex Cases

If an SFO case is designated as ‘exceptionally complex’ a member of the SCS at the SFO (an operational HoD, Chief Investigator or General Counsel) can extend the ABP in relation to a suspect, to 6 months from the ABP start date.

Section 47ZE Exceptionally Complex/Designated cases

A “designated case” as defined in the legislation, is when a qualifying prosecutor designates a suspect’s case (rather than the case as a whole) as “exceptionally complex”.

A “qualifying prosecutor” in the SFO is a lawyer designated under s.1(7)CJA 1987.

See the Designations Chapter for a definition of s.1(7) Designation.

SFO Exceptionally Complex case extension of the ABP

In an ‘SFO case’ that has been designated ‘exceptionally complex’, a member of the SCS at the SFO may extend a suspect’s ABP to 6 months from the Bail Start Date if they are satisfied that conditions A to D are met (PACE s47ZD).

Section 47ZC Applicable bail period: conditions A to D in sections 47ZD to 47ZG

  • Condition A is that the decision-maker has reasonable grounds for suspecting the person in question to be guilty of the relevant offence.
  • Condition B is that the decision-maker has reasonable grounds for believing
  1. that further time is needed for making a decision as to whether to charge the suspect, or
  2. that further investigation is needed of any matter in connection with the relevant offence.
  • Condition C is that the decision-maker has reasonable grounds for believing—
  1. that the decision as to whether to charge the suspect is being made diligently and expeditiously, or
  2. that the investigation is being conducted diligently and expeditiously.
  • Condition D is that the decision-maker has reasonable grounds for believing that the release on bail of the person in question is necessary and proportionate in all the circumstances (having regard, in particular, to any conditions of bail which are, or are to be, imposed).

Note that for Condition A, suspicion is required, whereas for Conditions B to D, it is the higher standard of “belief”.

Section 47ZF – Application to the Magistrates’ Court

Before the expiry of the ABP authorised by the SFO (pursuant to s.47ZE), if bail is still necessary and proportionate then the SFO will need to make an application to the magistrates’ court to extend the ABP (pursuant to s.47ZF).

To grant the application, the court will need to be convinced that conditions B to D are satisfied (see above).

  • If the court is also convinced that the further investigation is expected to last more than 3 months then they may grant an extension to 12 months from the Bail Start Date.
  • But if the court is not satisfied that the investigation will take more than 3 months then the Court will only extend the bail date to 9 months from the Bail Start Date.

Section 47ZG – Further Applications to the Magistrates’ Court

If bail is still necessary and proportionate at the end of any ABP extension granted by the magistrates’ court under s.47ZF, the SFO may make a further application to the magistrates’ court.

The court will need to be convinced that conditions B to D are satisfied (see above).

  • If the court is also satisfied that the further investigation is expected to last more than 3 months then the court may grant an extension of 6 months from the end of the previous ABP.
  • But if the court is not satisfied that the investigation is expected to last more than 3 months then it may extend the ABP to a period of 3 months from the end of the previous ABP.

The SFO can make applications under this section until a charging decision is made so long as all the criteria remain fulfilled. If the criteria for bail are no longer fulfilled or the application for extension is not made within time, then the imposition of bail ceases and the suspect must be informed.

SFO Non-exceptionally complex cases

Section 47ZF Application to the Magistrates’ Courts

For cases which:

  1. Have been confirmed as an SFO case by a superintendent and bail initially was granted on that basis;
  2. Have not been not designated as Exceptionally Complex by a qualifying prosecutor;
  3. The end of the original ABP (3 months from the Bail Start Date) is due; and
  4. Bail is still necessary and proportionate.

then an application may be made to the magistrates’ court to extend the ABP.

To grant the application, the court will need to be convinced that conditions B to D are satisfied (see above).

  • If the court is also convinced that the further investigation is expected to last more than 3 months then they may grant an extension to 9 months from the Bail Start Date.
  • But if the court is not satisfied that the investigation will take more than 3 months then the Court will only extend the bail date to 6 months from the Bail Start Date.

Section 47ZG Application to the Magistrates’ Courts

Any further application for an extension of the ABP need to be made under s.47ZG (see above).

Non-SFO Cases

The ABP time periods for a case which has not been confirmed as an SFO case by a superintendent are different to an SFO case.

Section 47ZB Initial ABP following release from custody

In the event that a custody officer and an inspector agree that bail (including conditions) is necessary and proportionate then a suspect may be released on bail with an ABP of 28 days from the Bail Start Date.

Section 47ZD Superintendent extension of the ABP

A superintendent can extend the ABP to 3 months after the release date if they are convinced that the conditions in A to D are satisfied (see above).

‘Exceptionally complex’ cases

If a suspect’s case has been “designated” as “exceptionally complex” (see above) an assistant chief constable or commander may extend the ABP to 6 months from the Bail Start Date if conditions A to D are met under s47ZE.

Court extensions:

Further applications for extension of time to the ABP should be requested by application to the Magistrates’ Court under s47ZF and then s47ZG of PACE.

Bail following charge

When a person is arrested and charged at the police station, the custody officer must decide whether to keep him in custody, or release on him on bail, with or without conditions (s.38 PACE).

In making that decision the custody officer will consider any concerns raised by the investigating officer that the accused will abscond, commit further offences or interfere with the course of justice. The custody officer will either:

  1. grant unconditional bail – where the accused is simply required to attend court at a given time and date;
  2. grant conditional bail – as above, but in addition the accused must comply with conditions attached to his bail; or
  3. refuse bail – where the accused will remain in police custody to be taken to the Magistrates’ Court at the next court sitting.

As a rule, conditions should only be attached to bail if deemed necessary to prevent the accused from absconding, committing an offence, interfering with witnesses or otherwise obstructing the course of justice, or for his own protection.

If conditions are attached to police bail the Custody Officer must give reasons.

Live Link – Custody and bail

There are now opportunities to use live link in appropriate circumstances.

Bail at Court (post charge)

The magistrates’ and Crown Court must consider the issue of bail on each occasion that the accused is brought before the court, whether or not the accused makes an application for bail, Part IIA Schedule 1 Bail Act 1976.

When considering bail following charge both courts will have regard to the same factors.

Factors determining bail

The court must grant bail to the accused, rather than remand him in custody, unless one of the exceptions listed at Schedule 1 BA 1976 applies. Therefore, where unconditional bail is opposed, the prosecution must inform the court of the reasons why it considers one or more of the exceptions apply.

Main exception to the ‘right to bail’

Where the accused is charged with an imprisonable offence, the court may refuse bail where one or more of the exceptions apply. The most common grounds are that:

the court is satisfied that there are substantial grounds to believe that the accused, if released on bail, whether subject to conditions or not, would:

  • fail to surrender to custody; and/or
  • commit an offence while on bail; and/or
  • interfere with witnesses or otherwise obstruct the course of justice, whether in relation to himself or some other person. (BA 1976, Schedule 1, paragraph 2)

For other exceptions see Part 1 Schedule 1 BA 1976.The case controller will consider the exceptions to bail when making the decision whether the prosecution should oppose bail. In addition to the exceptions and representations from the prosecution and defence, the court should also have regard to the following factors when determining the issue of bail:

  • the nature and seriousness of the offence – The serious nature of an offence is relevant because the accused will know that if convicted he will receive a lengthy custodial sentence, and this could increase the likelihood he would abscond rather than risk such a sentence.
  • the character, previous convictions and community ties of the accused – The court will consider these factors to determine how easily the accused could disappear and start a new life elsewhere.
  • whether the accused has complied with previous grants of bail
  • the strength of the evidence against the accused – an accused is considered to be more likely to answer bail if there is a strong chance of acquittal, R. v Slough JJ, ex p Duncan (1982) 75 Cr App R 384.

Points to note in regard to Remanded in Custody (“RIC”)

If an accused is “remanded in custody”, he will be subject to custody time limits (CTL) [See “Custody Time Limits”]. A RIC cannot take place until after charge. There is a requirement to put the accused before a court and for the court to consider bail as soon as possible after RIC at the police station. Therefore in SFO cases a RIC will be rare and only occur when the case is charge-ready and sending papers – even in a very basic form – can be prepared within 28 days; for example following a successful extradition from another jurisdiction. As soon as a person is RIC the CTL applies; any time spent in custody, regardless of whether bail is subsequently granted, must be counted towards the custody time limits if bail is subsequently revoked for any reason. Time spent under arrest/at the police station before charge and formal RIC does not count towards the CTL.

Grant of bail

Unconditional bail

When the court or police grant unconditional bail, the accused is simply under a duty to ‘surrender to custody’, namely to attend court/the police station at the given time. The court must supply a copy of the bail notice to the prosecution in cases where bail was opposed, and this should be retained with the case papers.

Conditional bail

Where the court accepts there are substantial grounds to believe that the accused would either fail to surrender, commit further offences or interfere with witnesses, or the court believes that, inter alia, they are necessary for the protection of the accused, it can grant bail with conditions, s.3 BA 1976, if they are appropriate to prevent the future risk, namely:

  • Bail with a surety/sureties; and/or
  • Bail with a security; and/or
  • Bail with other conditions.

Bail with Surety (BA 1976 s.3(4))

A surety is a common bail condition, designed to prevent the accused absconding.

A surety is a person who undertakes to pay the court a specified sum of money (known as a ‘recognisance’), in the event the accused fails to surrender to custody as required. More than one person can be asked to stand as a surety in relation to a single grant of bail.

A surety is only obliged to ensure the accused attends Court when required; he is not expected to prevent the commission of further offences or interference with witnesses. However, the role of a surety is a serious commitment. A surety is duty bound to stay in touch with the accused, and to remain information of the bail conditions. There is no requirement for the court to communicate bail variations to the surety (R v Wells Street Magistrates’ Court, ex p Albanese [1981] 3 All ER 769).

If the accused absconds, the surety may be ordered to pay all or part of the sum in which they stood by the court, known as ‘forfeiting or estreating the recognisance’. If the surety is ordered to repay the sum, but fails to do so, he could be sent to prison. Sureties should therefore be advised to seek their own legal advice, independent from the accused, as to their commitment.

If the surety is present in court, he may give his undertaking before the Court. As part of the procedure the Court may ask the surety questions concerning financial resources, previous criminal convictions, relationship to the accused, and examine financial evidence to determine whether he is suitable to assume the responsibility (s.8(2) BA 1976).

A surety does not have to be taken in front of a Court but can be taken before a number of different persons, although the Court will specify the person before whom the surety should be taken. Until the surety shows that he is able to stand surety in the stated sums either at a police station or to the Court, the accused will remain in custody (s.8(4) BA 1976).

The surety is normally taken in the magistrates’ court, which may sit in private. In SFO cases when the accused surrenders at the Crown Court following sending, any previous bail arrangements will end. The Crown Court will have sole discretion as to whether the accused should remain on conditional bail or not. Therefore the case controller should ensure that:

  • the magistrates’ court makes the surety continuous to the sending hearing. The surety therefore agrees to forfeit the specified sum if the accused fails to attend any of the required hearings. The surety will have to enter a new recognisance at, or soon after sending; and
  • the surety is re-taken at the first preparatory hearing at the Crown Court, R v CCC ex p Guney [1996] 2 WLR 675

Bail with a Security

A security is another bail condition, designed to prevent the accused absconding where the accused, or somebody on his behalf, deposits money or property with the Court which may be fully or partially forfeited if the accused absconds.

The courts may impose a security condition where they believe it to be appropriate in the circumstances (s.3(5) BA 1976).

Other bail conditions

The court has the power to impose other bail conditions to ensure that the accused answers bail (s.3(6) BA 1976)

Examples of bail conditions

These are examples of bail conditions that could be attached where exceptions to the grant of bail apply:

  • surety
  • security;
  • residence at a named address;
  • surrender of passport/ restriction from applying for travel documents – to prevent the accused leaving the country.
  • Notification of international travel
  • reporting – to attend a named police station on specific days and sign a register to confirm attendance;
  • report any change of address.

To ensure bail is answered, other conditions can be applied to prevent the commission of further offences and interference with witnesses.

Appeals regarding Post-Charge Bail

Defence Appeals

Where bail is refused by the magistrates’ court, the accused may apply to the Crown Court for bail. CrimPR 14.7 sets out the procedure for defence appeals and further information is provided in Section D7 of Blackstone’s Criminal Practice.

If the Crown Court confirms the refusal of bail, the accused may be able to challenge that decision by way of judicial review.

Prosecution Appeals

From Magistrates’ Court to Crown Court

S.1 Bail (Amendment) 1993 (BAA 1993) contains the law regarding prosecution appeals against the grant of bail. Crim PR 14.9 sets out the procedure and further information is provided in Section D7 of Blackstone’s Criminal Practice.

By s.1(1) BAA 1993, the prosecution may appeal to the Crown Court against a grant of bail by the magistrates’ court where the accused is charged with (or convicted of) an imprisonable offence. In addition, such an appeal may be made only if the prosecution made representations that bail should not be granted prior to the grant of bail.

In order to exercise the right of appeal, there are strict procedural requirements with which the prosecution must comply:

  1. Oral notice of appeal must be given at the conclusion of the proceedings in which bail was granted and before the accused is released on bail.
  2. Thereafter, written notice of appeal must be served on the magistrates’ court and accused within two hours of the conclusion of the proceedings.

In accordance with CrimPR 14.9(6) the appeal notice must specify:

  1. each offence with which the defendant is charged;
  2. the decision under appeal;
  3. the reasons given for the grant of bail; and
  4. the grounds of appeal.

If the prosecution fails to serve the appeal notice within two hours, the appeal is deemed to have been disposed of and the accused will be released.

Where the appeal notice is served in time, the Crown Court is required to hear the appeal within 48 hours of oral notice being given to the magistrates’ court (excluding weekends and public holidays).

The prosecution may abandon the appeal at any time before the appeal by serving a signed notice on the accused, the Crown Court and the magistrates’ court.

The appeal is by way of rehearing and the judge at the Crown Court may remand in custody, or grant bail with or without conditions as he thinks fit.

From the Crown Court to the High Court

As indicated above, s.1 BAA 1993 contains the law regarding prosecution appeals against the grant of bail. Crim PR 14.9 sets out the procedure in the Crown Court and further information is provided in Section D.7 of Blackstone’s Criminal Practice.

By s.1(1B) BAA 1993, the prosecution may appeal to the High Court against a grant of bail by the Crown Court. In addition, such an appeal may be made only if the prosecution made representations that bail should not be granted prior to the grant of bail. The right of appeal does not arise where Crown Court upholds a decision to grant bail in a prosecution appeal from the magistrates’ court.

The initial procedural requirements with which the prosecution must comply mirror those for appeals from the magistrates’ court to the Crown Court i.e. oral notice of appeal must be given at the conclusion of the proceedings at which bail was granted; written notice must be served on the Crown Court within two hours of the conclusion of proceedings; the appeal notice must specify the information listed at CrimPR 14.9; and if the prosecution fails to serve the appeal notice within two hours, the appeal is deemed to have been disposed of.

The procedure in the High Court is governed by Schedule 1 to the Civil Procedure Rules (and RSC Order 49, Rule 9) and the Practice Direction which accompanies that Order. Rule 9(15)(a) provides that the appeal proceedings are commenced by the prosecutor filing a copy of the appeal notice at the High Court (this is a reference to the appeal notice served by the prosecutor on the Crown Court and accused under CrimPR 14.9(4)). Paragraph 8 of the Practice Direction clarifies that the document should be filed at the Queen’s Bench Listing Office in London.

Paragraphs 9 of the Practice Direction lists further documents which the prosecutor should file with the Queen’s Bench List Office including:

  1. a copy of the notice of the decision to grant bail served by the Crown Court on the prosecutor under CrimPR 14.4(2);
  2. a copy of the charge sheet, requisition or indictment (as appropriate);
  3. a case summary;
  4. a copy of any other relevant material which was provided to the Crown Court in relation to the application for bail;
  5. notice of the next date of hearing at the Crown Court.

The High Court is required to hear the appeal within 48 hours of oral notice being given to the Crown Court (excluding weekends and public holidays).

The appeal is by way of rehearing the judge at the High Court may remand in custody or grant bail with or without conditions as he thinks fit.

Given the short time limits for giving notice of appeal, it is preferable for prosecution to consider whether a grant of bail will be appealed prior to the hearing at which the bail application is heard. The prosecutors will then know whether to give oral notice as soon as a decision to grant bail is announced.

From the Magistrates’ Court to the High Court

By s.1(1A), the prosecution appeal to the High Court against a grant of bail by the magistrates’ court in extradition proceedings. The procedure is almost identical to appeals from the Crown Court to the High Court. The main difference is that the relevant documents should be filed at the Administrative Court Office in London rather than the Queen’s Bench List Office (see paragraph 2 of the Practice Direction which accompanies RCS Order 79, rule 9).

Failure to Surrender & Breach of Bail

Offence of Failure to Surrender to Bail

Section 6 BA 1976 creates two offences:

  1. Section 6(1)BA 1976 – makes it an offence for an accused released on bail in criminal proceedings to fail to surrender to custody without reasonable cause.
  2. Section 6(2) BA 1976 – makes it an alternative offence for an accused who had a reasonable cause for failing to surrender to custody, to fail to surrender thereafter as soon as reasonably practicable.

In both cases the burden will be on the accused to prove on the balance of probabilities that he had a reasonable cause for his failure to surrender.

Failure to surrender to police station

If the accused fails to surrender to a police station when required, the police have the power to arrest them without a warrant under s.46A PACE 1984.

Where the accused is granted bail from the police station to appear at Court or a police station but fails to do so, he may have committed an offence under s6. Any proceedings must be commenced within six months following the accused’s subsequent arrest or surrender to custody, see The Criminal Practice Directions.

Failure to surrender to Court

Where the Court grants bail and the accused subsequently fails to surrender to custody, this can be treated as an offence under the Bail Act or as a contempt of court [See “Contempt of Court”]. The six-month time limit for instituting proceedings does not apply where bail was granted by the court.

Breach of bail conditions

Breach of conditions of bail is not a Bail Act offence, nor is it a contempt of court unless there is some additional feature.

Pre charge

The police have a power of arrest where conditions imposed on pre-charge bail have been breached (s.46A PACE). Where a person has been re-arrested the police have the power to release again without charge, either on bail or without bail. However, the statute (s.37C(4) PACE) explicitly states that if a person is re-bailed he shall be subject to the same conditions applied before the arrest.

Post charge

A police officer can arrest the accused without a warrant where:

  • he has reasonable grounds to believe the accused will fail to surrender to custody; or
  • he reasonably suspects the accused has broken or will break a condition attached to his bail; or
  • the accused is released with a surety condition and the police officer is informed by the surety that the accused is unlikely to surrender and wishes to be removed from the obligation to continue as a surety, s.7(3) BA 1976.

If arrested in these circumstances the accused must be brought before a local magistrates’ court within 24 hours of arrest.

If the court accepts bail conditions have been breached or the accused would have failed to surrender to custody when required, the accused may be released on bail with more stringent conditions or have bail revoked, s.7(5) BA 1976.

R v Liverpool City Justices ex p DPP [1993] QB 233 – established five factors in relation to s 7(5) BA 1976:

  • The arresting officer may give hearsay evidence;
  • The accused should be given an opportunity to respond;
  • The court has no power to adjourn and must consider the material before them;
  • If not satisfied as to a breach the court must release the accused on bail on the same terms originally imposed;
  • If the accused is remanded in custody he can still make a bail application to the magistrates’ court or Crown Court.

Estreating a surety’s recognisance

Where bail is granted with a surety condition and the accused absconds, the court shall declare forfeiture of the sum in which the surety stood (i.e. estreating the recognisance) and issue a summons for the surety to attend court to show good reason why he should not forfeit the sum. If the surety fails to attend on that date, but the court is satisfied the summons was received, the court can proceed in his absence, (MCA 1980 s.120(1) and (1A) and the CrimPR).

When considering whether to order forfeiture, the court has a discretion to enforce the whole sum or part of the sum. When exercising this discretion, the court can only consider the surety’s assets at that time.

The fact that the surety is blameless is not necessarily good reason for not forfeiting the recognisance; but the amount forfeited may be reduced where a culpable surety has made very considerable efforts to carry out his or her undertaking: R v Stipendiary Magistrates for Leicestershire, ex p Kaur [2000] COD 109.

Bail and Human Rights

Article 5 ECHR

Article 5(1) European Convention on Human Rights (ECHR) states each individual has the right to liberty and should not be deprived of his liberty except in certain circumstances prescribed by the law. All bail decisions must therefore be compatible with the ECHR and the Human Rights Act 1998.

European case law states that in English Courts where detention is made on the basis that there are substantial grounds to believe that the accused would fail to surrender, commit offences on bail, interfere with witnesses or obstruct the course of justice, it will be compatible with the ECHR.

Technical Bail

“Technical bail” is the name given where an accused would be granted bail, notwithstanding the fact that there were substantial grounds to remand them in Custody. This would mostly frequently occur where the accused was already remanded in custody for other matters or was serving a custodial sentence. An accused granted unconditional bail in these circumstances was said to be on “technical bail” as they would remain in custody for other reasons. Such technical bail would avoid the need to bring the accused back before the court for remand hearings and could avoid the need to deal with more than one set of custody time limits.

However, there are risks associated with this approach. Should the accused be granted bail in the other proceedings, if the other proceedings are discontinued or if he is released from his custodial sentence, he could then be released without any conditions.

In these circumstances, where there are substantial grounds for believing that one or more of the grounds for withholding bail has been made out, it may be more correct to object to bail being granted in the normal way. If this situation is likely to occur, it should be discussed with the case controller and counsel before a hearing at which bail will be considered.

The law in relation to bail is contained within the following legislation:

  • Bail (Amendment) Act 1993
  • Bail Act 1976 (BA 1976);
  • Schedule 1 to the Civil Procedure Rules (RSC Order 79, rule 9) and the Practice Direction which accompanies that Order
  • Crime And Disorder Act 1998;
  • Criminal Justice Act 2003 and 1967;
  • Criminal Justice and Public Order Act 1994 (CJPOA);
  • Criminal Practice Directions
  • Criminal Procedure Rules
  • Human Rights Act 1998
  • Magistrates’ Court Act 1980 (MCA 1980);
  • Police and Criminal Evidence Act 1984 (PACE).

Guidance can be found at Blackstone’s Criminal Practice Sections D1 and D7 and Archbold Chapter 3.

Bail

For the purpose of this chapter the following terms and abbreviations are used:

ABP – Applicable Bail Period

BA 1976 – Bail Act 1976

Bail Return Date – the date on which a suspect who is released on pre-charge bail is due to return to the police station.

Bail Start Date – the day after the day on which the person was arrested for the relevant offence

CTL – Custody time limits

PACE – Police and Criminal Evidence Act 1984

RIC – Remand in custody

Introduction

A grant of bail is the release of a suspect/accused subject to a duty to attend at an appointed place and at a given time (‘surrender to custody’). It may be granted by a police officer following arrest, by a custody officer on release from a police station whether before or after charge or by a court following charge (including where a written requisition has been issued).

Bail in SFO cases

There will be occasions in an SFO investigation when early arrest and interview are sought but it is not likely, or indeed practicable, that the SFO will be in a position to charge.

Pre-charge bail before 3 April 2017

Before 3 April 2017 the decision as to whether a suspect was released on bail before charge was a matter for the arresting officer or, once a suspect had been taken to a police station, a matter for the custody officer.

No statutory time limit was set for bail imposed on suspects who were arrested before 3 April 2017.

Bail could be imposed by a custody officer under PACE s.37(2) if it was anticipated, for example, that a suspect would have to be interviewed or further interviewed under caution when he answered bail. In limited circumstances a custody officer could attach conditions to bail granted under s.37(2).

If, however, at any time during a suspect’s detention the custody officer became aware that the grounds to detain the suspect had ceased to apply and there were no other grounds to justify his detention it was the custody officer’s duty to release the suspect from custody (PACE s.34(2)).

Pre-charge bail post 3 April 2017

The provisions relating to bail contained in PACE have been amended by the Policing and Crime Act 2017 insofar as they apply to suspects arrested on or after 3 April 2017.

Only members of the SFO who have received the Applying for Pre-Charge Bail training, may make applications for pre-charge bail under the new provisions.

As a result of these changes, bail may only be imposed on a suspect who has been arrested and held in police custody if certain “pre-conditions” for bail (set out below) exist.

The presumption now is that suspects will be released without bail unless pre-conditions for pre-charge bail are met

Any release on bail after 3 April 2017 will also be subject to a time limitation referred to as the Applicable Bail Period (“ABP”).

There are specific provisions in PACE addressing the ABP in SFO confirmed cases.

The text which follows refers to the position as it is post 3 April 2017.

Bail at the Police station

When a suspect is arrested for an offence, and he is not granted bail by the arresting officer under PACE s.30A, then, if he is not already at a designated police station, he must be taken to one ‘as soon as practicable after his arrest’. (PACE s.30).

Once a suspect has been taken to a police station, if it appears to a constable that the suspect would, if he were released, be liable to be arrested for some other offence he should be arrested for that other offence as well. (PACE s.31).

The custody officer now has power to impose bail under PACE s.37(2) and s.34(5). The distinction is no longer important insofar as conditions may be attached to bail when it is imposed under either provision and in either case the bail it is likely that it will be referred to as ‘bail under Part IV of PACE.’ It is important, however, to understand the procedural distinction between the s.37(2) and s.34(5).

PACE Section 37(2)

When the suspect arrives at a police station it is the duty of the custody officer to determine, ‘as soon as practicable’, whether there is sufficient evidence to charge him with the offence for which he was arrested (PACE s.37 ss. (1) & 10).

If the custody officer determines that he does not have sufficient evidence to charge the suspect he must:

  1. Release the suspect without bail; or
  2. If the pre-bail conditions are satisfied, on bail (PACE s.37(2))

However, if he believes ‘on reasonable grounds’ that the suspect’s detention is necessary to secure or preserve evidence relating to the offence, or to obtain such evidence by questioning, may order the suspect to be detained (PACE s.37(3)).

The pre-conditions for bail, which apply for all purposes in Part IV PACE are:

  1. That the custody officer is satisfied that releasing the person on bail is necessary and proportionate in all the circumstances (having regard, in particular, to any conditions of bail which would be imposed), and
  2. That an officer of the rank of inspector or above authorises the release on bail (having considered any representations made by the person or the person’s legal representative (PACE s.50A).

A release on bail under Part IV of PACE shall be a release on bail granted in accordance with ss. 3, 3A, 5 and 5A of the Bail Act 1976 (PACE s47(1)).

Bail ‘granted’ in these circumstances imposes a duty on the suspect to attend at a named police station at the time appointed by the custody officer. (PACE s.47(3)(c)).

When the suspect returns to a police station to answer bail granted under Part IV of PACE (i.e. including under s.37(2) or s.34((5) he is to be treated as arrested for an offence in respect of which he was granted bail (PACE s.34(7)).

When the suspect attends a police station to answer his bail the custody officer must again determine whether there is sufficient evidence to charge him.

If the custody officer determines that he does not have sufficient evidence to charge the suspect he must:

  1. Release the suspect without bail; or
  2. If the pre-bail conditions are satisfied, on bail. (PACE s.37(2)).

However, if he believes ‘on reasonable grounds’ that the suspect’s detention is necessary to secure or preserve evidence relating to the offence, or to obtain such evidence by questioning, he may order the suspect to be detained (PACE s.37(3)).

PACE Section 34(5)

If at any time the custody officer becomes aware, in relation to the suspect who is detained, that the grounds for the detention have ceased to apply: that is to say that his detention is no longer necessary to secure or preserve evidence or obtain evidence by questioning, and there are no other grounds to detain the suspect, it is the duty of the custody officer to order the arrested person’s immediate release from custody (PACE s.34(2)).

A person who is released under this provision shall be released without bail unless it appears to the custody officer:

  1. That there is a need for further investigation of any matter in connection with which he was detained at any time during that period of his detention (PACE s.34 (5A); and
  2. That the custody officer is satisfied that releasing the person on bail is necessary and proportionate in all the circumstances (having regard, in particular, to any conditions of bail which would be imposed) (PACE s.50A(a)); and
  3. That an officer of the rank of inspector or above authorises the release on bail (having considered any representations made by the person or the person’s legal representative) (PACE s.50A(b)).

When a person is released on bail under s.34 PACE the custody officer now has power, as he does under s.37(2), to impose bail conditions. (PACE s.47 (1A)).

Pre-charge bail conditions

Custody officers have the power to put limited conditions on pre-charge bail and the SFO should make any representations they have as to suitable bail conditions to the custody officer. These representations should be set out on the initial application form for pre-charge bail. See the [Initial Application for Pre-Charge Bail Form, held in Operational Stock Forms].

According to s.47(1A) of PACE, custody officers have the “normal powers” to impose bail conditions where a person is released on pre-charge bail pursuant to Part IV PACE.

Sections 3 and 3A of the Bail Act 1976 (“BA 1976”) explain that “normal powers” means that conditions can only be imposed if the custody officer considers them necessary to prevent the suspect from:

  • failing to surrender,
  • committing an offence while on bail, or
  • interfering with witnesses or otherwise obstructing the course of justice.

The custody officer has the power to vary any conditions imposed on pre-charge bail (Ss.3(8) and 3A(4) BA 1976). Any application by a suspect to vary those conditions has first be made to the custody officer. A magistrates’ court also has the power to vary these conditions (s.47(1E) PACE).

The SFO does not have the power to amend bail conditions. This must be done by the custody officer or the magistrates’ court.

Any release on bail after 3 April 2017 will also be subject to a time limitation referred to as the Applicable Bail Period (“ABP”). In most cases, this will be for a period of 28 days.

SFO Confirmed Cases

Section 47ZB(c) defines an “SFO case” as a case in which

  1. the relevant offence in relation to the person is being investigated by the Director of the Serious Fraud Office, and
  2. a senior officer confirms that sub-paragraph (i) applies.

“Senior officer” means a police officer with the rank of superintendent or above.

If a superintendent does not confirm that the SFO is investigating a case then for the purposes of s.47PACE, it is not an SFO case.

In an SFO case, if the pre-conditions for bail are met, a suspect may be released on bail with an ABP of 3 calendar months from the Bail Start Date. In all other cases, the initial ABP is for a period of 28 days.

The Bail Start Date is the day after the person was arrested for the relevant offence.

It is the custody officer that makes the decision about whether bail and any conditions are imposed. The custody officer must ask for representations from the suspect or their legal advisor. As above, an inspector will then need to approve the imposition of bail.

It is very important to ensure that a superintendent confirms that a case is an SFO case at the earliest possibility, otherwise the suspects’ initial ABP will be limited to 28 days. It is not possible to confirm that a case is an SFO case retrospectively once the suspect has been released from police custody.

SFO Exceptionally Complex Cases

If an SFO case is designated as ‘exceptionally complex’ a member of the SCS at the SFO (an operational HoD, Chief Investigator or General Counsel) can extend the ABP in relation to a suspect, to 6 months from the ABP start date.

Section 47ZE Exceptionally Complex/Designated cases

A “designated case” as defined in the legislation, is when a qualifying prosecutor designates a suspect’s case (rather than the case as a whole) as “exceptionally complex”.

A “qualifying prosecutor” in the SFO is a lawyer designated under s.1(7)CJA 1987.

See the Designations Chapter for a definition of s.1(7) Designation.

SFO Exceptionally Complex case extension of the ABP

In an ‘SFO case’ that has been designated ‘exceptionally complex’, a member of the SCS at the SFO may extend a suspect’s ABP to 6 months from the Bail Start Date if they are satisfied that conditions A to D are met (PACE s47ZD).

Section 47ZC Applicable bail period: conditions A to D in sections 47ZD to 47ZG

  • Condition A is that the decision-maker has reasonable grounds for suspecting the person in question to be guilty of the relevant offence.
  • Condition B is that the decision-maker has reasonable grounds for believing
  1. that further time is needed for making a decision as to whether to charge the suspect, or
  2. that further investigation is needed of any matter in connection with the relevant offence.
  • Condition C is that the decision-maker has reasonable grounds for believing—
  1. that the decision as to whether to charge the suspect is being made diligently and expeditiously, or
  2. that the investigation is being conducted diligently and expeditiously.
  • Condition D is that the decision-maker has reasonable grounds for believing that the release on bail of the person in question is necessary and proportionate in all the circumstances (having regard, in particular, to any conditions of bail which are, or are to be, imposed).

Note that for Condition A, suspicion is required, whereas for Conditions B to D, it is the higher standard of “belief”.

Section 47ZF – Application to the Magistrates’ Court

Before the expiry of the ABP authorised by the SFO (pursuant to s.47ZE), if bail is still necessary and proportionate then the SFO will need to make an application to the magistrates’ court to extend the ABP (pursuant to s.47ZF).

To grant the application, the court will need to be convinced that conditions B to D are satisfied (see above).

  • If the court is also convinced that the further investigation is expected to last more than 3 months then they may grant an extension to 12 months from the Bail Start Date.
  • But if the court is not satisfied that the investigation will take more than 3 months then the Court will only extend the bail date to 9 months from the Bail Start Date.

Section 47ZG – Further Applications to the Magistrates’ Court

If bail is still necessary and proportionate at the end of any ABP extension granted by the magistrates’ court under s.47ZF, the SFO may make a further application to the magistrates’ court.

The court will need to be convinced that conditions B to D are satisfied (see above).

  • If the court is also satisfied that the further investigation is expected to last more than 3 months then the court may grant an extension of 6 months from the end of the previous ABP.
  • But if the court is not satisfied that the investigation is expected to last more than 3 months then it may extend the ABP to a period of 3 months from the end of the previous ABP.

The SFO can make applications under this section until a charging decision is made so long as all the criteria remain fulfilled. If the criteria for bail are no longer fulfilled or the application for extension is not made within time, then the imposition of bail ceases and the suspect must be informed.

SFO Non-exceptionally complex cases

Section 47ZF Application to the Magistrates’ Courts

For cases which:

  1. Have been confirmed as an SFO case by a superintendent and bail initially was granted on that basis;
  2. Have not been not designated as Exceptionally Complex by a qualifying prosecutor;
  3. The end of the original ABP (3 months from the Bail Start Date) is due; and
  4. Bail is still necessary and proportionate.

then an application may be made to the magistrates’ court to extend the ABP.

To grant the application, the court will need to be convinced that conditions B to D are satisfied (see above).

  • If the court is also convinced that the further investigation is expected to last more than 3 months then they may grant an extension to 9 months from the Bail Start Date.
  • But if the court is not satisfied that the investigation will take more than 3 months then the Court will only extend the bail date to 6 months from the Bail Start Date.

Section 47ZG Application to the Magistrates’ Courts

Any further application for an extension of the ABP need to be made under s.47ZG (see above).

Non-SFO Cases

The ABP time periods for a case which has not been confirmed as an SFO case by a superintendent are different to an SFO case.

Section 47ZB Initial ABP following release from custody

In the event that a custody officer and an inspector agree that bail (including conditions) is necessary and proportionate then a suspect may be released on bail with an ABP of 28 days from the Bail Start Date.

Section 47ZD Superintendent extension of the ABP

A superintendent can extend the ABP to 3 months after the release date if they are convinced that the conditions in A to D are satisfied (see above).

‘Exceptionally complex’ case

If a suspect’s case has been “designated” as “exceptionally complex” (see above) an assistant chief constable or commander may extend the ABP to 6 months from the Bail Start Date if conditions A to D are met under s47ZE.

Court extensions:

Further applications for extension of time to the ABP should be requested by application to the Magistrates’ Court under s47ZF and then s47ZG of PACE.

Bail following charge

When a person is arrested and charged at the police station, the custody officer must decide whether to keep him in custody, or release on him on bail, with or without conditions (s.38 PACE).

In making that decision the custody officer will consider any concerns raised by the investigating officer that the accused will abscond, commit further offences or interfere with the course of justice. The custody officer will either:

  1. grant unconditional bail – where the accused is simply required to attend court at a given time and date;
  2. grant conditional bail – as above, but in addition the accused must comply with conditions attached to his bail; or
  3. refuse bail – where the accused will remain in police custody to be taken to the Magistrates’ Court at the next court sitting.

As a rule, conditions should only be attached to bail if deemed necessary to prevent the accused from absconding, committing an offence, interfering with witnesses or otherwise obstructing the course of justice, or for his own protection.

If conditions are attached to police bail the Custody Officer must give reasons.

Live Link – Custody and bail

There are now opportunities to use live link in appropriate circumstances.

Bail at Court (post charge)

The magistrates’ and Crown Court must consider the issue of bail on each occasion that the accused is brought before the court, whether or not the accused makes an application for bail, Part IIA Schedule 1 Bail Act 1976.

When considering bail following charge both courts will have regard to the same factors.

Factors determining bail

The court must grant bail to the accused, rather than remand him in custody, unless one of the exceptions listed at Schedule 1 BA 1976 applies. Therefore, where unconditional bail is opposed, the prosecution must inform the court of the reasons why it considers one or more of the exceptions apply.

Main exception to the ‘right to bail’

Where the accused is charged with an imprisonable offence, the court may refuse bail where one or more of the exceptions apply. The most common grounds are that:

the court is satisfied that there are substantial grounds to believe that the accused, if released on bail, whether subject to conditions or not, would

  • fail to surrender to custody; and/or
  • commit an offence while on bail; and/or
  • interfere with witnesses or otherwise obstruct the course of justice, whether in relation to himself or some other person. (BA 1976, Schedule 1, paragraph 2)

For other exceptions see Part 1 Schedule 1 BA 1976.The case controller will consider the exceptions to bail when making the decision whether the prosecution should oppose bail. In addition to the exceptions and representations from the prosecution and defence, the court should also have regard to the following factors when determining the issue of bail:

  • the nature and seriousness of the offence – The serious nature of an offence is relevant because the accused will know that if convicted he will receive a lengthy custodial sentence, and this could increase the likelihood he would abscond rather than risk such a sentence.
  • the character, previous convictions and community ties of the accused – The court will consider these factors to determine how easily the accused could disappear and start a new life elsewhere.
  • whether the accused has complied with previous grants of bail
  • the strength of the evidence against the accused – an accused is considered to be more likely to answer bail if there is a strong chance of acquittal, R. v Slough JJ, ex p Duncan (1982) 75 Cr App R 384.

Points to note in regard to Remanded in Custody (“RIC”)

If an accused is “remanded in custody”, he will be subject to custody time limits (CTL) [See “Custody Time Limits”]. A RIC cannot take place until after charge. There is a requirement to put the accused before a court and for the court to consider bail as soon as possible after RIC at the police station. Therefore in SFO cases a RIC will be rare and only occur when the case is charge-ready and sending papers – even in a very basic form – can be prepared within 28 days; for example following a successful extradition from another jurisdiction. As soon as a person is RIC the CTL applies; any time spent in custody, regardless of whether bail is subsequently granted, must be counted towards the custody time limits if bail is subsequently revoked for any reason. Time spent under arrest/at the police station before charge and formal RIC does not count towards the CTL.

Grant of bail

Unconditional bail

When the court or police grant unconditional bail, the accused is simply under a duty to ‘surrender to custody’, namely to attend court/the police station at the given time. The court must supply a copy of the bail notice to the prosecution in cases where bail was opposed, and this should be retained with the case papers.

Conditional bail

Where the court accepts there are substantial grounds to believe that the accused would either fail to surrender, commit further offences or interfere with witnesses, or the court believes that, inter alia, they are necessary for the protection of the accused, it can grant bail with conditions, s.3 BA 1976, if they are appropriate to prevent the future risk, namely:

  • Bail with a surety/sureties; and/or
  • Bail with a security; and/or
  • Bail with other conditions.

Bail with Surety (BA 1976 s.3(4))

A surety is a common bail condition, designed to prevent the accused absconding.

A surety is a person who undertakes to pay the court a specified sum of money (known as a ‘recognisance’), in the event the accused fails to surrender to custody as required. More than one person can be asked to stand as a surety in relation to a single grant of bail.

A surety is only obliged to ensure the accused attends Court when required; he is not expected to prevent the commission of further offences or interference with witnesses. However, the role of a surety is a serious commitment. A surety is duty bound to stay in touch with the accused, and to remain information of the bail conditions. There is no requirement for the court to communicate bail variations to the surety (R v Wells Street Magistrates’ Court, ex p Albanese [1981] 3 All ER 769).

If the accused absconds, the surety may be ordered to pay all or part of the sum in which they stood by the court, known as ‘forfeiting or estreating the recognisance’. If the surety is ordered to repay the sum, but fails to do so, he could be sent to prison. Sureties should therefore be advised to seek their own legal advice, independent from the accused, as to their commitment.

If the surety is present in court, he may give his undertaking before the Court. As part of the procedure the Court may ask the surety questions concerning financial resources, previous criminal convictions, relationship to the accused, and examine financial evidence to determine whether he is suitable to assume the responsibility (s.8(2) BA 1976).

A surety does not have to be taken in front of a Court but can be taken before a number of different persons, although the Court will specify the person before whom the surety should be taken. Until the surety shows that he is able to stand surety in the stated sums either at a police station or to the Court, the accused will remain in custody (s.8(4) BA 1976).

The surety is normally taken in the magistrates’ court, which may sit in private. In SFO cases when the accused surrenders at the Crown Court following sending, any previous bail arrangements will end. The Crown Court will have sole discretion as to whether the accused should remain on conditional bail or not. Therefore the case controller should ensure that:

  • the magistrates’ court makes the surety continuous to the sending hearing. The surety therefore agrees to forfeit the specified sum if the accused fails to attend any of the required hearings. The surety will have to enter a new recognisance at, or soon after sending; and
  • the surety is re-taken at the first preparatory hearing at the Crown Court, R v CCC ex p Guney [1996] 2 WLR 675

Bail with a Security

A security is another bail condition, designed to prevent the accused absconding where the accused, or somebody on his behalf, deposits money or property with the Court which may be fully or partially forfeited if the accused absconds.

The courts may impose a security condition where they believe it to be appropriate in the circumstances (s.3(5) BA 1976).

Other bail conditions

The court has the power to impose other bail conditions to ensure that the accused answers bail (s.3(6) BA 1976)

Examples of bail conditions

These are examples of bail conditions that could be attached where exceptions to the grant of bail apply:

  • surety
  • security;
  • residence at a named address;
  • surrender of passport/ restriction from applying for travel documents – to prevent the accused leaving the country.
  • Notification of international travel
  • reporting – to attend a named police station on specific days and sign a register to confirm attendance;
  • report any change of address.

To ensure bail is answered, other conditions can be applied to prevent the commission of further offences and interference with witnesses.

Appeals regarding Post-Charge Bail

Defence Appeals

Where bail is refused by the magistrates’ court, the accused may apply to the Crown Court for bail. CrimPR 14.7 sets out the procedure for defence appeals and further information is provided in Section D7 of Blackstone’s Criminal Practice.

If the Crown Court confirms the refusal of bail, the accused may be able to challenge that decision by way of judicial review.

Prosecution Appeals

From Magistrates’ Court to Crown Court

S.1 Bail (Amendment) 1993 (BAA 1993) contains the law regarding prosecution appeals against the grant of bail. Crim PR 14.9 sets out the procedure and further information is provided in Section D7 of Blackstone’s Criminal Practice.

By s.1(1) BAA 1993, the prosecution may appeal to the Crown Court against a grant of bail by the magistrates’ court where the accused is charged with (or convicted of) an imprisonable offence. In addition, such an appeal may be made only if the prosecution made representations that bail should not be granted prior to the grant of bail.

In order to exercise the right of appeal, there are strict procedural requirements with which the prosecution must comply:

  1. Oral notice of appeal must be given at the conclusion of the proceedings in which bail was granted and before the accused is released on bail.
  2. Thereafter, written notice of appeal must be served on the magistrates’ court and accused within two hours of the conclusion of the proceedings.

In accordance with CrimPR 14.9(6) the appeal notice must specify:

  1. each offence with which the defendant is charged;
  2. the decision under appeal;
  3. the reasons given for the grant of bail; and
  4. the grounds of appeal.

If the prosecution fails to serve the appeal notice within two hours, the appeal is deemed to have been disposed of and the accused will be released.

Where the appeal notice is served in time, the Crown Court is required to hear the appeal within 48 hours of oral notice being given to the magistrates’ court (excluding weekends and public holidays).

The prosecution may abandon the appeal at any time before the appeal by serving a signed notice on the accused, the Crown Court and the magistrates’ court.

The appeal is by way of rehearing and the judge at the Crown Court may remand in custody, or grant bail with or without conditions as he thinks fit.

From the Crown Court to the High Court

As indicated above, s.1 BAA 1993 contains the law regarding prosecution appeals against the grant of bail. Crim PR 14.9 sets out the procedure in the Crown Court and further information is provided in Section D.7 of Blackstone’s Criminal Practice.

By s.1(1B) BAA 1993, the prosecution may appeal to the High Court against a grant of bail by the Crown Court. In addition, such an appeal may be made only if the prosecution made representations that bail should not be granted prior to the grant of bail. The right of appeal does not arise where Crown Court upholds a decision to grant bail in a prosecution appeal from the magistrates’ court.

The initial procedural requirements with which the prosecution must comply mirror those for appeals from the magistrates’ court to the Crown Court i.e. oral notice of appeal must be given at the conclusion of the proceedings at which bail was granted; written notice must be served on the Crown Court within two hours of the conclusion of proceedings; the appeal notice must specify the information listed at CrimPR 14.9; and if the prosecution fails to serve the appeal notice within two hours, the appeal is deemed to have been disposed of.

The procedure in the High Court is governed by Schedule 1 to the Civil Procedure Rules (and RSC Order 49, Rule 9) and the Practice Direction which accompanies that Order. Rule 9(15)(a) provides that the appeal proceedings are commenced by the prosecutor filing a copy of the appeal notice at the High Court (this is a reference to the appeal notice served by the prosecutor on the Crown Court and accused under CrimPR 14.9(4)). Paragraph 8 of the Practice Direction clarifies that the document should be filed at the Queen’s Bench Listing Office in London.

Paragraphs 9 of the Practice Direction lists further documents which the prosecutor should file with the Queen’s Bench List Office including:

  1. a copy of the notice of the decision to grant bail served by the Crown Court on the prosecutor under CrimPR 14.4(2);
  2. a copy of the charge sheet, requisition or indictment (as appropriate);
  3. a case summary;
  4. a copy of any other relevant material which was provided to the Crown Court in relation to the application for bail;
  5. notice of the next date of hearing at the Crown Court.

The High Court is required to hear the appeal within 48 hours of oral notice being given to the Crown Court (excluding weekends and public holidays).

The appeal is by way of rehearing the judge at the High Court may remand in custody or grant bail with or without conditions as he thinks fit.

Given the short time limits for giving notice of appeal, it is preferable for prosecution to consider whether a grant of bail will be appealed prior to the hearing at which the bail application is heard. The prosecutors will then know whether to give oral notice as soon as a decision to grant bail is announced.

From the Magistrates’ Court to the High Court

By s.1(1A), the prosecution appeal to the High Court against a grant of bail by the magistrates’ court in extradition proceedings. The procedure is almost identical to appeals from the Crown Court to the High Court. The main difference is that the relevant documents should be filed at the Administrative Court Office in London rather than the Queen’s Bench List Office (see paragraph 2 of the Practice Direction which accompanies RCS Order 79, rule 9).

Failure to Surrender & Breach of Bail

Offence of Failure to Surrender to Bail

Section 6 BA 1976 creates two offences:

  1. Section 6(1)BA 1976 – makes it an offence for an accused released on bail in criminal proceedings to fail to surrender to custody without reasonable cause.
  2. Section 6(2) BA 1976 – makes it an alternative offence for an accused who had a reasonable cause for failing to surrender to custody, to fail to surrender thereafter as soon as reasonably practicable.

In both cases the burden will be on the accused to prove on the balance of probabilities that he had a reasonable cause for his failure to surrender.

Failure to surrender to police station

If the accused fails to surrender to a police station when required, the police have the power to arrest them without a warrant under s.46A PACE 1984.

Where the accused is granted bail from the police station to appear at Court or a police station but fails to do so, he may have committed an offence under s6. Any proceedings must be commenced within six months following the accused’s subsequent arrest or surrender to custody, see The Criminal Practice Directions.

Failure to surrender to Court

Where the Court grants bail and the accused subsequently fails to surrender to custody, this can be treated as an offence under the Bail Act or as a contempt of court [See “Contempt of Court”]. The six-month time limit for instituting proceedings does not apply where bail was granted by the court.

Breach of bail conditions

Breach of conditions of bail is not a Bail Act offence, nor is it a contempt of court unless there is some additional feature.

Pre charge

The police have a power of arrest where conditions imposed on pre-charge bail have been breached (s.46A PACE). Where a person has been re-arrested the police have the power to release again without charge, either on bail or without bail. However, the statute (s.37C(4) PACE) explicitly states that if a person is re-bailed he shall be subject to the same conditions applied before the arrest.

Post charge

A police officer can arrest the accused without a warrant where

  • he has reasonable grounds to believe the accused will fail to surrender to custody; or
  • he reasonably suspects the accused has broken or will break a condition attached to his bail; or
  • the accused is released with a surety condition and the police officer is informed by the surety that the accused is unlikely to surrender and wishes to be removed from the obligation to continue as a surety, s.7(3) BA 1976

If arrested in these circumstances the accused must be brought before a local magistrates’ court within 24 hours of arrest.

If the court accepts bail conditions have been breached or the accused would have failed to surrender to custody when required, the accused may be released on bail with more stringent conditions or have bail revoked, s.7(5) BA 1976.

R v Liverpool City Justices ex p DPP [1993] QB 233 – established five factors in relation to s 7(5) BA 1976

  • The arresting officer may give hearsay evidence;
  • The accused should be given an opportunity to respond;
  • The court has no power to adjourn and must consider the material before them;
  • If not satisfied as to a breach the court must release the accused on bail on the same terms originally imposed;
  • If the accused is remanded in custody he can still make a bail application to the magistrates’ court or Crown Court.

Estreating a surety’s recognisance

Where bail is granted with a surety condition and the accused absconds, the court shall declare forfeiture of the sum in which the surety stood (i.e. estreating the recognisance) and issue a summons for the surety to attend court to show good reason why he should not forfeit the sum. If the surety fails to attend on that date, but the court is satisfied the summons was received, the court can proceed in his absence, (MCA 1980 s.120(1) and (1A) and the CrimPR)

When considering whether to order forfeiture, the court has a discretion to enforce the whole sum or part of the sum. When exercising this discretion, the court can only consider the surety’s assets at that time.

The fact that the surety is blameless is not necessarily good reason for not forfeiting the recognisance; but the amount forfeited may be reduced where a culpable surety has made very considerable efforts to carry out his or her undertaking: R v Stipendiary Magistrates for Leicestershire, ex p Kaur [2000] COD 109.

Bail and Human Rights

Article 5 ECHR

Article 5(1) European Convention on Human Rights (ECHR) states each individual has the right to liberty and should not be deprived of his liberty except in certain circumstances prescribed by the law. All bail decisions must therefore be compatible with the ECHR and the Human Rights Act 1998.

European case law states that in English Courts where detention is made on the basis that there are substantial grounds to believe that the accused would fail to surrender, commit offences on bail, interfere with witnesses or obstruct the course of justice, it will be compatible with the ECHR.

Technical Bail

“Technical bail” is the name given where an accused would be granted bail, notwithstanding the fact that there were substantial grounds to remand them in Custody. This would mostly frequently occur where the accused was already remanded in custody for other matters or was serving a custodial sentence. An accused granted unconditional bail in these circumstances was said to be on “technical bail” as they would remain in custody for other reasons. Such technical bail would avoid the need to bring the accused back before the court for remand hearings and could avoid the need to deal with more than one set of custody time limits.

However, there are risks associated with this approach. Should the accused be granted bail in the other proceedings, if the other proceedings are discontinued or if he is released from his custodial sentence, he could then be released without any conditions.

In these circumstances, where there are substantial grounds for believing that one or more of the grounds for withholding bail has been made out, it may be more correct to object to bail being granted in the normal way. If this situation is likely to occur, it should be discussed with the case controller and counsel before a hearing at which bail will be considered.

The law in relation to bail is contained within the following legislation:

  • Bail (Amendment) Act 1993
  • Bail Act 1976 (BA 1976);
  • Schedule 1 to the Civil Procedure Rules (RSC Order 79, rule 9) and the Practice Direction which accompanies that Order
  • Crime And Disorder Act 1998;
  • Criminal Justice Act 2003 and 1967;
  • Criminal Justice and Public Order Act 1994 (CJPOA);
  • Criminal Practice Directions
  • Criminal Procedure Rules
  • Human Rights Act 1998
  • Magistrates’ Court Act 1980 (MCA 1980);
  • Police and Criminal Evidence Act 1984 (PACE).

Guidance can be found at Blackstone’s Criminal Practice Sections D1 and D7 and Archbold Chapter 3.

Version OGW 1, Published November 2017 © Crown Copyright, 2020.

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