Bail - Court and Police bail. Problems of detention prior to trial.
(b) Do you consider the system to be effective? (13)
Comment upon the issues that the court would have to consider if John's solicitor applies for bail. (15)
Discuss the view that recent changes in the law in this area have altered the balance too far in favour of the prosecution. (15)
The bail law was set down in the Bail Act 1976, but the law has been changed many times since. An effectively complete (disregarding the Habeas Corpus Act 1679, etc.) knowledge of the law of bail requires access to the Bail Act 1976, Supreme Court Act 1980, Magistrates' Courts Act 1980 (s. 26(3), s. 8), Mental Health (Amendment) Act 1982, Criminal Justice Act 1982, Police and Criminal Evidence Act 1984, Criminal Justice Act 1988, Bail (Amendment) Act 1993, Criminal Justice and Public Order Act 1994, and Crime and Disorder Act 1998.
1. There are around 50,000 remands in custody every year (1992) and one in five people in prison are on remand, although this is partly due to delay, a figure that rises every year, despite the likelihood of being granted bail rising every year.
2. There is a duty to surrender to custody under section 3(1) of the Bail Act, and failing to do so without reasonable cause is an offence under s. 6(1).
Having failed to surrender to custody, a warrant may be issued for a suspect's arrest(s. 7(1)), or he may be arrested (s. 7(3)) if a constable has reasonable grounds for believing that he is "not likely to surrender", or are "likely to break conditions or has broken conditions". After arrest with or without warrant, under section 7(5), if a Justice of the Peace believes that the suspect is not likely to surrender, has failed to surrender, has broken or is likely to break a condition of bail, he may be remanded or committed in custody, or conditions varied on his bail. If not of that opinion the suspect must be released on the same conditons.
3. A Home Office Research and Statistics Direcorate Research Findings document (No. 72) showed that approximately 13% of all persons granted bail committed offences.
1. There is a constant desire on the part of governments to reduce the number of people remanded in custody. This desire is tempered by the problem of people released on bail committing offences (and, far more importantly, the desire to appear as if it is not facilitating it or allowing it to happen). This has led to the great rise in the use of conditional bail, which may be totally ineffective, but the appearance is that rather than just letting people out on the streets to do their dastardly deeds, there is some kind of restraint - it appeals to those who object to massive expenditure on remand prisoners, to those who think that it is unfair to lock people up unnecessarily, and to those who are frightened of criminals being left to roam free.
According to the Home Office document, 30% of juveniles and 7% of adults were known to have breached the police's bail conditions:
"The figures for offending on bail provide some suppport for custody officers' views that specific conditions are effective in certain kinds of cases (e.g. curfews in burglary cases); but, generally, use of conditions was not related to lower rates of offending.
The police were empowered by the Criminal Justice and Public Order Act 1994 to impose conditions on bail after charge and to refuse bail (in imprisonable offences) specifically to prevent reoffending. Data ... suggest[s] that adult offending has been checked, or even reduced. However, offending on bail among juveniles ... appears to have escalated - of those charged in 1995-96, 51% were on bail for other offences, compared with 30% in 1993-94."
The use of conditions was "most in cases of violence, where the reoffending risk is often low."
2. Breach of a bail condition is an arrestable offence (Bail Act, section 7(3)).
3. There has been an enormous increase in the use of conditions - they were imposed on 8% of defendants in 1967, and by 1988 this had reached 38%.
4. There are an average of 2 conditions imposed on each person released on conditional bail.
5. Conditions may only be imposed (if conditions are imposed or varied, reasons must be given to facilitate an appeal (s. 5(3)) to the extent necessary to prevent (and if bail could otherwise be refused) (under section 3(6) of the Bail Act):
Those are the aims of conditional bail, but there is considerable evidence that it is achieving none of its apparently laudable aims, and that conditional bail is simply being granted by magistrates to people who would previously have been granted unconditional bail, in which case the justification that conditional bail at least must be better than prison (and that it allows people to continue with their normal life and work, which conditions may prevent) cannot be said to apply.
In addition, some conditions can be punitive (sometimes more so than those imposed as sentences), and may actually be intended by magistrates to be a punishment (or at least by the prosecution/the police, for whom the magistrate often imposes conditions in an attempt at appeasement).
Bail conditions are often severe breaches of civil rights, a problem exarcebated by delay meaning that conditions are in force for long periods of time (delays are, understandably, longer for people released on bail than those remanded in custody).
Exarcebating this is the fact that imposing more conditions will increase the likelihood of their breach, resulting in an increase in the prison population.
As well as this, defence solicitors often suggest the imposition of irrelevant conditions in an effort to get bail for their clients. Many will either not be enforced (through police apathy, or lack of resources) or are unenforceable.
In order to reduce delay, the government has increased the use of securities by the Crime and Disorder Act 1998,
"thereby providing a stronger incentive for defendants to surrender to the custody of the court. At present, the court may require the deposit of a security only if a person granted bail is unlikely to remain in Great Britain. The taking of a security in more cases should serve as a stronger deterrent against failure to appear in court than the requirement to provide a surety, on which there is already no restriction.The second measure will allow the courts to require a defendant to attend an interview with a legal representative as a condition of bail. Failure to obtain legal advice or representation is one of the most common reasons for delay, resulting in ineffective first hearings and routine adjournments."
Finally, securities, previously only to be taken (they can be given by the suspect or on his behalf), under the Bail Act, section 3(5), where it appeared that the suspect was "unlikely" to remain in Great Britain until the time came to surrender to custody, may, under the Crime and Disorder Act 1998, section 54(1), be imposed as other bail conditions may be. It should be noted that a security need not be a sum of money, and that if the suspect fails to surrender to custody, up to (s. 5(8)) the full value of the security may be forfeited (s. 5(7))
Courts must give reasons (s 5(3)) for refusing bail.
About 20% of suspects are remanded in custody by the courts, twice the proportion remanded by the police, and 1993 Home Office statistics for 1992 showed that of those remanded by the courts in to custody, 39% received non-custodial sentences, and 21% were acquitted, thus meaning that the majority of bail decisions, with the benefit of hindsight, are wrong (although it is impossible to criticise this in respect of most of the 21%).
Bail 'applications' must be heard even if no application is made (i.e. if a person is arrested without warrant and not bailed by the police, he must have his bail considered).
Bail hearings by the courts has been criticised as being overly hasty, based on too limited a quantity of information, and decided for reasons other than those provided within the Bail Act.
It is further alleged that there is little consistency of decisions (for example, a study in 1984 showed that in one court the chance of having conditions attached to bail was 27%, whereas in another court it was 41%) and just as there are regional variations in sentencing, so too there are regional variations in the likelihood of being granted bail.
It is essential that such variations be ironed out, as it is unfair to those in areas where bail is less likely to be granted, but it seems highly unlikely that any initiative along the lines of the new Sentencing Board will be set up to ensure bail consitency.
1. Where there are "substantial grounds for believing" that the accused ("whether subject to conditions or not") would, if released on bail:
In considering the above, the court shall have regard to any of the factors below as appear to it to be relevant, "as well as to any others which appear to be relevant":
2. Where the court has insufficient information on the suspect to make a bail decision.
3. Where the case is to be adjourned for enquiries or a report and "it would be impracticable [note that impracticable (=not possible in practice) is not synonomous with impractical (=not practical)]" to do so without detention in custody (cf. s. 3 (6) (d), on bail conditions, above)
4. Where the offence is indictable or triable either way, and the defendant was on bail on the date of the commission of the offence (under the Criminal Justice and Public Order Act 1994, s. 36) (since so many people released on bail commit offences).
5. Where a suspect is suspected of a serious offence (under the Criminal Justice Act 1988) (serious offences are defined as murder, attempted murder, manslaughter, rape or attempted rape), the court must give reasons if it grants bail.
6. Under the Criminal Justice and Public Order Act 1994, a suspect previously convicted of a serious offence (and imprisoned, if the offence was manslaughter), charged with another serious offence, could not be granted bail by the police or courts.
This was designed to stop the public outcry at repeat murderers, etc., being released, and it applied to a tiny handful of bail applicants. The Crime and Disorder Act 1998 amends this so that bail may be granted if "there are exceptional circumstances which justify it".
1. Where it is believed that the defendant has failed to surrender to bail in the past and "whether subject to conditions or not" will fail to do so again.
1. Where the suspect should be kept in custody for his own protection, or (if he is 16 or under) for his own welfare.
2. Where the suspect is already serving a custodial sentence.
3. Where the defendant has been arrested under section 7 ((see above) failing to surrender to custody or breach of bail condition or reasonable belief that that is likely).
If bail is refused, then there is a right under the Magistrates' Court Act 1980 to have the bail decision reconsidered every 8 days, but (under the Criminal Justice Act 1988) the court "need not [although it may] hear arguments as to fact or law that it has heard previously". This essentially means that the court must hear new argument for the suspects' release, but need not hear old, since if the bail application was wrongfully decided then the correct course of action is to appeal (as a result of the principle of res judicita).
The case for granting bail need not be reheard for up to 28 days (under the Criminal Justice Act 1988) where the suspect has previously attended a bail hearing and the court has set a date for commencement of the full trial.
Effectively, if bail is turned down once, remand in custody is likely to be indefinite, the 8 day rule being a mere safeguard, since change in circumstances are unlikely.
If a suspect is remanded in custody by the magistrates' court, he may apply to the Crown Court (under the Criminal Justice Act 1982), as well as the rehearings in the magistrates' court.
As a pis aller, appeals can be made to the High Court under the Criminal Justice Act 1967 (or even a Habeas Corpus hearing), but there is no further appeal to "any other judge" (Supreme Court Act 1980). It was held (in R. v. Crown Court at Reading, ex parte Malik 1981) that this (by noscitur a sociis) only applies to High Court judges, so suspects can reapply to the magistrates' court.
Appeals to the High Court are rarely used because of the lack of legal aid.
Under the Bail (Amendment) Act 1993, the CPS (they were granted this power because it was unfair to those who were not granted bail, because 10% of people on bail committed offences, and because public confidence in the courts was undermined) may appeal against magistrates' courts' grant of bail to the Crown Court where:
The prosecution may apply to the court for the withholding of bail, or the imposition/variance of conditions following a bail decision by the court or police (Criminal Justice and Public Order Act 1994) where
Under the Bail Act, section 3(8), where a person has been released on bail, either conditional or unconditional, constables, bailed persons, or prosecutors can apply to have conditions varied, added or removed.
The Bail Act 1976 allowed the police (or the courts) to impose a security if "it appears that the person charged is unlikely to remain in Great Britain until the time appointed for him to surrender to custody".
Police bail may be granted before or after charge.
Conditions may be imposed by the custody officer (excluding residence in a bail hostel) under the Criminal Justice and Public Order Act 1994, provided he could otherwise refuse bail. The criteria for the imposition of conditions are as in the original Bail Act 1976.
The police must give reasons for imposing or varying bail conditions (under the 1994 Act), so as to facilitate appeals.
If the police do not grant bail then the accused may apply to the court for bail.
The police have the power to increase sureties on arrest warrants and to detain people on warrants backed for bail, and conversely may grant bail to persons arrested on arrest warrants not backed for bail.
If the police turn down a person as a surety, there is a right of appeal to the court.
A person may be released with or without bail. For it to be on bail, the custody officer must be satisfied that:
The police's powers not to grant bail are if the custody officer has reasonable grounds for believing that:
In 1994 of the 831000 people arrested and charged, 732000 were bailed and 99000 were remanded in custody (12%) (the 1998 data cited above suggests that the fear of absconsion the most common reason for not granting bail), and therefore to significantly reduce the proportion of people committing offences or absconding from the present 12% (although this may seem high, it is actually low, since we must assume that the majority of arrested persons are criminals and so are more likely to commit offences anyway) would require a disproportionately large increase in the number of detained persons - to eliminate offences committed on bail, it would be necessary to imprison all accused persons.