The criminal procedure rules include the decision by the police or the magistrates who work within the Magistrates’ Court as to whether or not to grant bail. If


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NameThe criminal procedure rules include the decision by the police or the magistrates who work within the Magistrates’ Court as to whether or not to grant bail. If
A typeDecision
The criminal procedure rules include the decision by the police or the magistrates who work within the Magistrates’ Court as to whether or not to grant bail. If bail is granted then the accused offender is granted their freedom ‘liberty’ until the date of the trial if a prosecution is to take place. If bail is denied then the accused will be remanded into custody pending the trial. The basic rules on bail are contained within the Bail Act 1976. According to s.4 there is a general presumption in favour of bail which is based on two fundamental principles first that the accused is presumed to be innocent until proven guilty; and also that innocent people have the Right to Liberty as contained in Article 5 of the European Convention on Human Rights (ECHR), a right which was formally incorporated into our national law by virtue of the Human Rights Act 1998 (HRA). Remanding innocent people into custody must be justifiable as this interferes with the aforementioned rights. However, as well as the rights of the accused, the police and/or magistrates must take into account other competing interests, and consider the wider implications of granting bail such as the rights of the victim and the public who have a right to be protected from harm.

The police have the power to bail suspects before or after they are charged with a criminal offence, the decision to grant bail is taken by the Custody Officer under powers contained in s.38 Police and Criminal Evidence Act 1984. Bail is granted in the majority of cases and can be given to the suspect even if he has not been charged, on the agreement that he will return to the police station on a given date – this happened to Chris Jeffries, the first suspect to be arrested in the 2011 Joanna Yates murder case. If the police grant bail they can like the magistrates attach conditions with the exception of residing in a bail hostel (s.27 Criminal Justice and Public Order Act 1994)

The police can only refuse bail if: there is doubt about the suspect’s name or address; if detention is necessary to protect the suspect or somebody else; or it is reasonably believed that the suspect will fail to attend court or will interfere with witnesses or the administration of justice. Bail will not be granted for an imprisonable offence where the defendant has tested positive for a Class A drug and where the offence is one connected with Class A drugs (S.19 CJA 2003). Prior to the case of Cabellero v UK (2000) the courts could deny bail in cases of murder, manslaughter and rape where the defendant has already served a custodial sentence for such an offence on a previous occasion. However, this was held to be a breach of Article 5 ECHR (Right to Liberty and Security) now, in order to protect the rights of the accused a blanket ban on denial of bail is not permitted. However it can still be denied, the courts have reserved the right to only grant it in ‘exceptional circumstances’ (S.25 Criminal Justice and Public Order Act 1994 & S. 56 Crime and Disorder Act 1998). This helps to ensure the protection of society.

If the police feel that they cannot grant bail, the suspect will appear before Magistrates as soon as possible, so that they can make the decision in relation to bail. Where a person is charged with murder, bail can only be granted by a judge of the Crown Court, magistrates do not have the power to grant bail in such cases (S.115 Coroners and Justice Act 2009). The defendant must be brought before the Crown court judge within 48 hours beginning with the day after the defendant’s appearance at the Magistrates’ Court. Any conditions imposed by the Police can be varied by the Magistrates. Police powers to grant bail were introduced to reduce the number of those detained in police custody. Research has found that where the accused is bailed by the police the CPS is very unlikely to object to bail. Similarly where the police release the accused on bail they are unlikely to be remanded into custody by the courts.

Street Bail was introduced under s.4 Criminal Justice Act 2003, police officers can grant bail on the street for minor offences, this has the effect of freeing up police officers and maintaining a presence on the street. It would only be likely to be widely used if ID cards were introduced.

The court’s powers to grant bail is governed by the Bail Act 1976. Although there is a presumption in favour of bail it can be denied where imprisonment is a possible punishment such as theft or robbery, if there are substantial grounds for believing that the suspect would commit another offence whilst on bail; fail to surrender to bail; interfere with witnesses or obstruct the course of justice (tamper with evidence for example; or the suspect needs to be kept in custody for his own protection; bail can also be refused if the offender may commit an act involving domestic violence.

In deciding whether to grant bail a number of factors will be taken into consideration which are set out in the Bail Act, they include: the nature and seriousness of the offence, the more serious the offence the less likely bail will be granted; the character, past criminal record, associations and community ties of the accused and the strength of the evidence against him. S.14 CJA states that if the defendant was on bail for another offence at the date of the offence, bail will be refused unless the court is satisfied that there is no significant risk that the accused will commit another offence.

Bail can be granted with or without conditions attached, with unconditional bail there are no restrictions, the accused is released into the community and must return to the court at a specified date. Alternatively conditions can be imposed, although the accused can retains the right to their freedom this freedom is curtailed so there is still an impact on their right to liberty. The conditions are imposed to minimise the risk of the D committing another offence whilst on bail or to prevent him from interfering with the investigation and in some circumstances to protect the D from themselves or to protect witnesses, victims etc. The conditions are imposed in order to strengthen the control over defendant’s on bail and increase the credibility of bail.

The conditions can include: a curfew for example the defendant might have to stay indoors during night time hours or they may be restricted from entering a specific town or area of a town; electronic tags are used to monitor compliance with bail conditions, in particular curfews; surrender of passport in order to prevent the defendant from leaving the country, this is likely if the accused is a foreign national; reporting to police station at regular intervals; residence at a bail hostel; surety – this involves the defendant or their representatives to deposit a sum of money with the court before the defendant is released in order to ensure their attendance in court. If the defendant fails to attend the court at the agreed date/time the money is forfeited unless there is a reasonable cause. However, official figures show that around 12% of defendants do not answer bail, including Julian Assange who has failed to leave the Ecuador Embassy following his release on bail.

The criteria for granting or refusing bail is contained in the Bail Act 1976, however over recent years there have been a number of amendments in order to prevent bail being given too freely and to try to prevent those who are granted bail from committing further offences. Cases such as Gary Weddel who killed his mother in law and himself while on bail, and Jonathan Vass, who killed his ex-girlfriend while on bail, have been the cause of some recent reforms. S.18 CJA allows the prosecution to appeal against the granting of bail for any imprisonable offence. S. 24 Anti-Terrorism, Crime and Security Act 2001 states that all bail applications from suspected international terrorists should be made to the Special Immigration Appeals Commission. The Police (Detention and Bail) Act 2011 is an emergency piece of legislation that was passed through Parliament as a result of R (ex parte Chief Constable of Greater Manchester Police) and Salford Magistrates’ Court v Hookway (2011). This Act amends the Police and Criminal Evidence Act 1984 to stipulate that a suspect cannot be released on bail without charge for longer than 96 hours, which is the maximum detention limit.

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