Define: Bail

Quick Summary of Bail

The money paid to the court, usually at arraignment or shortly thereafter, to ensure that an arrested person who is released from jail will show up at all required court appearances. The amount of bail is determined by the local bail schedule, which is based on the seriousness of the offence. The judge can increase the bail if the prosecutor convinces him that the defendant is likely to flee (for example, if he has failed to show up in court in the past), or he can decrease it if the defence attorney shows that the defendant is unlikely to run (for example, he has strong ties to the community by way of a steady job and a family).

Bail is money or bond which is given to the court temporarily and allows for the accused to leave jail. The bail or bond, as it is often called, provides assurance to the court that the accused party will return for his or her court appearances.

This is an extremely important pre-trial matter which needs to be considered in every case. A person can be released on bail at any point after being arrested by the police; sometimes, sometimes however, it is felt necessary to keep the suspect/defendant in custody until their trial.

Police Bail

The police can release a suspect on bail while they make further inquiries. This means that the suspect is released from custody on condition that they return to the police station on a specified date in the future.

The police can also give bail to a suspect who has been charged with an offence. In this situation, the defendant is given bail on condition that they appear at the Magistrates’ Court on a specified date.

The decision whether or not to grant bail is made by the custody officer under s. 38 of the Police And Criminal Evidence Act 1984 (PACE) (as amended by the Criminal Justice and Public Order Act 1994) The custody officer can refuse to grant bail if:

• the suspect’s name and address cannot be ascertained
• there are doubts about whether the suspect’s name and address are genuine

If any person fails to surrender to police bail on the date specified, then the police have the right to arrest them.

Conditions On Police Bail

The Criminal Justice and Public Order Act 1994 gave the police the power to impose certain conditions on a grant of bail.

These include;

• asking the suspect to surrender their passport and report regularly to the police station
• getting another person to stand surety for them

These conditions can be imposed in order to:

• make sure the suspect surrenders to bail
• does not commit an offence whilst on bail
• does not interfere with witnesses
• does not interfere in any other way with the course of justice When the Police Refuse to Grant Bail

If the police charge a suspect with an offence and are not willing to grant them bail, they must bring the defendant before the Magistrates’ Court at the first possible opportunity.

It is not usually possible for the Magistrates to deal with the case there and then they must make the decision whether the defendant is granted bail or remanded in custody. It is only in a very small percentage of cases that the police refuse bail. The main statute relating to whether a defendant should be granted bail by the Magistrates’ Court is the Bail Act 1976

The Bail Act 1976

There is an assumption under the Bail Act 1976 that an accused person should be granted bail.

Section 4 of the Bail Act 1976 gives a general right to bail; however, the Court need not grant a defendant bail if it is satisfied that there are substantial grounds for believing that the defendant, if released on bail, would:

• fail to surrender to custody
• commit an offence whilst on bail
• interfere with witnesses or otherwise obstruct the course of justice
• needs to be kept in custody for their own protection

When deciding whether to grant bail to the defendant, the court will consider various factors, including:

• The nature and seriousness of the offence
• The character, antecedents (a past record), associations and community ties of the defendant
• The defendant’s previous record when granted bail
• The strength of the evidence against the defendant

The court can also set conditions to a grant of bail, similar to the ones which may be made by the police and can also make a condition of bail that the defendant must reside, while on bail, at a certain address or even in a bail hostel.

A defendant can appeal against the refusal of the Magistrates’ Court to grant bail. This appeal is to a judge in the Crown Court. Where a defendant has been sent to the Crown Court for trial (indictable and some triable either-way offences), the defendant can apply for bail there.

Restrictions On The Right To Bail

In certain cases, there is a restriction on the right to bail.

Repeat serious offenders

Where the current offence was committed whilst already on bail

Adult drug users

Where an adult offender has tested positive for certain Class A drugs, Section 19 of the Criminal Justice Act 2003 places restrictions on the granting of bail, Where the offender is either charged with possession or possession with intent to supply a Class A drug, the court is satisfied that there are substantial grounds for believing that the misuse of a Class A drug caused or contributed to the offence The offender has refused to agree to an assessment regarding their dependency upon certain Class A drugs Prosecution Appeals

The Bail (Amendment) Act 1993 gives the prosecution the right to appeal to a judge in the Crown Court against the granting of bail. This applies to any offence which is punishable with imprisonment.

Comment

According to Home Office Statistics, 12% of those bailed to appear at court fail to do so and nearly 25% of defendants commit an offence whilst on bail.

However, it is also argued that far too many people are refused bail, i.e. remanded into custody. Around 14,000 people are currently in British prisons awaiting trial, which is about 20% of the prison population. Of these people, some will be found not guilty at their trial and will not receive any compensation for the time they have spent on remand. (This can sometimes amount to many months.) Of those on remand who are found guilty at their trial, statistics show around 60% are given non-custodial sentences!

The US

Under the Eighth Amendment to the United States, Constitution bail amounts cannot be excessive. For instance, the state is not allowed to use bail to raise money for the state or as a punishment for the alleged criminal. Bail is also not to be used to allow the police more time to gather evidence. The primary goal for establishing the bail amount is for the court to find a reasonable amount of bail which deters the suspect from leaving the jurisdiction and not reappearing in court.

Disclaimer

This site contains general legal information but does not constitute professional legal advice for your particular situation. Persuing this glossary does not create an attorney-client or legal adviser relationship. If you have specific questions, please consult a qualified attorney licensed in your jurisdiction.

This glossary post was last updated: 9th April, 2024.