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You are here: BAILII >> Databases >> The Law Commission >> Bail and the Human Rights Act 1998 Appendix A [2001] EWLC 269(APPENDIX A) (20 June 2001) URL: http://www.bailii.org/ew/other/EWLC/2001/269(APPENDIX_A).html Cite as: [2001] EWLC 269(APPENDIX A)

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APPENDIX A

EXTRACTS FROM THE BAIL ACT 1976

Meaning of "bail in criminal proceedings"

Section 1

(1) In this Act "bail in criminal proceedings" means –

(a) bail grantable in or in connection with proceedings for an offence to

a person who is accused or convicted of the offence, or

(b) bail grantable in connection with an offence to a person who is

under arrest for the offence or for whose arrest for the offence a

warrant (endorsed for bail) is being issued.

(2) In this Act "bail" means bail grantable under the law (including common

law) for the time being in force.

…

(6) Bail in criminal proceedings shall be granted (and in particular shall be

granted unconditionally or conditionally) in accordance with this Act.

Other definitions

Section 2

(2) In this Act, unless the context otherwise requires –

…

"court" includes a judge of a court or a justice of the peace and, in the

case of a specified court, includes a judge or (as the case may be) justice

having powers to act in connection with proceedings before that court,

"offence" includes an alleged offence …

General provisions

Section 3

(1) A person granted bail in criminal proceedings shall be under a duty to

surrender to custody, and that duty is enforceable in accordance with

section 6 of this Act.

(2) No recognizance for his surrender to custody shall be taken from him.

(3) Except as provided by this section –

(a) no security for his surrender to custody shall be taken from him,

(b) he shall not be required to provide a surety or sureties for his

surrender to custody, and

(c) no other requirement shall be imposed on him as a condition of bail.

(4) He may be required, before release on bail, to provide a surety or sureties

to secure his surrender to custody.

(5) He may be required, before release on bail, to give security for his

surrender to custody.

The security may be given by him or on his behalf.

(6) He may be required … to comply, before release on bail or later, with such

requirements as appear to the court to be necessary to secure that –

(a) he surrenders to custody,

(b) he does not commit an offence while on bail,

(c) he does not interfere with witnesses or otherwise obstruct the

course of justice whether in relation to himself or any other person,

(d) he makes himself available for the purpose of enabling inquiries or a

report to be made to assist the court in dealing with him for the

offence,

(e) before the time appointed for him to surrender to custody, he

attends an interview with an authorised advocate or authorised

litigator, as defined by section 119(1) of the Courts and Legal

Services Act 1990;

and, in any Act, "the normal powers to impose conditions of bail" means

the powers to impose conditions under paragraph (a), (b) or (c) above.

(6ZA) Where he is required under subsection (6) above to reside in a bail hostel,

he may also be required to comply with the rules of the hostel.

(6A) In the case of a person accused of murder the court granting bail shall,

unless it considers that satisfactory reports on his mental condition have

already been obtained, impose as conditions of bail –

(a) a requirement that the accused shall undergo examination by two

medical practitioners for the purpose of enabling such reports to be

prepared; and

(b) a requirement that he shall for that purpose attend such an

institution or place as the court directs and comply with any other

directions which may be given to him for that purpose by either of

those practitioners.

(6B) Of the medical practitioners referred to in subsection (6A) above at least

one shall be a practitioner approved for the purposes of section 12 of the

Mental Health Act 1983.

…

(8) Where a court has granted bail in criminal proceedings that court or,

where the court has committed a person on bail to the Crown Court for

trial or to be sentenced or otherwise dealt with, that court or the Crown

Court may on application –

(a) by or on behalf of the person to whom bail was granted, or

(b) by the prosecutor or a constable,

vary the conditions of bail or impose conditions in respect of bail which has been granted unconditionally.

(8A) Where a notice of transfer is given under a relevant transfer provision,

subsection (8) above shall have effect in relation to a person in relation to

whose case the notice is given as if he had been committed on bail.

(8B) Subsection (8) above applies where a court has sent a person on bail to

the Crown Court for trial under section 51 of the Crime and Disorder Act 1998 as it applies where a court has committed a person on bail to the

Crown Court for trial.

(9) This section is subject to subsection 3 of section 11 of the Powers of

Criminal Courts (Sentencing) Act 2000 (conditions of bail on remand

for medical examination).

(10) This section is subject, in its application to bail granted by a constable, to

section 3A of this Act.

(10) In subsection (8A) above "relevant transfer provision" means –

(a) section 4 of the Criminal Justice Act 1987, or

(b) section 53 of the Criminal Justice Act 1991.

(10A) Where a custody time limit has expired this section shall have effect as if –

(a) subsections (4) and (5) (sureties and security for his surrender to

custody) were omitted;

(b) in subsection (6) (conditions of bail) for the words "before release on bail

or later" there were substituted the words "after release on bail".1

Section 3A

(1) Section 3 of this Act applies, in relation to bail granted by a custody

officer under Part IV of the Police and Criminal Evidence Act 1984 in

cases where the normal powers to impose conditions of bail are available

to him, subject to the following modifications.

(2) Subsection (6) does not authorise the imposition of a requirement to

reside in a bail hostel or any requirement under paragraph (d) or (e).

(3) Subsections (6ZA), (6A) and (6B) shall be omitted.

(4) For subsection (8), substitute the following –

"(8) Where a custody officer has granted bail in criminal proceedings

he or another custody officer serving at the same police station

may, at the request of the person to whom it was granted, vary the

conditions of bail; and in doing so he may impose conditions or

more onerous conditions."

(5) Where a constable grants bail to a person no conditions shall be imposed

under subsections (4), (5), (6) or (7) of section 3 of this Act unless it

appears to the constable that it is necessary to do so for the purpose of

preventing that person from –

(a) failing to surrender to custody, or

(b) committing an offence while on bail, or

(c) interfering with witnesses or otherwise obstructing the course of

justice, whether in relation to himself or any other person.

(6) Subsection (5) above also applies on any request to a custody officer

under subsection (8) of section 3 of this Act to vary the conditions of bail.

1 In a case in which a custody time limit applies, section 3 has effect as if subsection (10A)

were inserted at the end thereof: Prosecution of Offences (Custody Time Limits)

Regulations 1987 (SI 1987 No 299) reg 8.

General right to bail of accused persons and others

Section 4

(1) A person to whom this section applies shall be granted bail except as

provided in Schedule 1 to this Act.

(2) This section applies to a person who is accused of an offence when –

(a) he appears or is brought before a magistrates' court or the Crown

Court in the course of or in connection with proceedings for the

offence, or

(b) he applies to a court for bail or for a variation of the conditions of

bail in connection with the proceedings …

…

(5) Schedule 1 to this Act also has effect as respects conditions of bail for a

person to whom this section applies.

(6) In Schedule 1 to this Act "the defendant" means a person to whom this

section applies …

(7) This section is subject to section 41 of the Magistrates' Courts Act 1980

(restriction of bail by magistrates' court in cases of treason).

(8) This section is subject to section 25 of the Criminal Justice and Public

Order Act 1994 (exclusion of bail in cases of homicide and rape).

(8A) Where a custody time limit has expired this section shall have effect as if, in

subsection (1), the words "except as provided in Schedule 1 to this Act" were

omitted.2

(9) In taking any decisions required by Part I or II of Schedule 1 to this Act,

the considerations to which the court is to have regard include, so far as is

relevant, any misuse of controlled drugs by the defendant ("controlled

drugs" and "misuse" having the same meanings as in the Misuse of

Drugs Act 1971).3

Supplementary provisions about decisions on bail

Section 5

(1) Subject to subsection (2) below, where –

(a) a court or constable grants bail in criminal proceedings, or

(b) a court withholds bail in criminal proceedings from a person to

whom section 4 of this Act applies, or

(c) a court, officer of a court or constable appoints a time or place or a

court or officer of a court appoints a different time or place for a

person granted bail in criminal proceedings to surrender to

custody, or

(d) a court or constable varies any conditions of bail or imposes

conditions in respect of bail in criminal proceedings,

that court, officer or constable shall make a record of the decision in the

prescribed manner and containing the prescribed particulars and, if

requested to do so by the person in relation to whom the decision was

taken, shall cause him to be given a copy of the record of the decision as

soon as practicable after the record is made.

2 In a case in which a custody time limit applies, section 4 has effect as if subsection (8A)

were inserted: Prosecution of Offences (Custody Time Limits) Regulations 1987 (SI 1987

No 299) reg 8.

3 Subsection (9) is inserted by the Criminal Justice and Court Services Act 2000, s 58. It

comes into force on a day to be appointed: Criminal Justice and Court Services Act 2000,

s 80(1).

(2) Where bail in criminal proceedings is granted by endorsing a warrant of

arrest for bail the constable who releases on bail the person arrested shall

make the record required by subsection (1) above instead of the judge or

justice who issued the warrant.

(3) Where a magistrates' court or the Crown Court –

(a) withholds bail in criminal proceedings, or

(b) imposes conditions in granting bail in criminal proceedings, or

(c) varies any conditions of bail or imposes conditions in respect of bail

in criminal proceedings,

and does so in relation to a person to whom section 4 of this Act applies,

then the court shall, with a view to enabling him to consider making an

application in the matter to another court, give reasons for withholding

bail or for imposing or varying the conditions.

(4) A court which is by virtue of subsection (3) above required to give

reasons for its decision shall include a note of those reasons in the record

of its decision and shall (except in a case where, by virtue of subsection

(5) below, this need not be done) give a copy of that note to the person in

relation to whom the decision was taken.

…

(6A) Where in criminal proceedings –

(a) a magistrates' court remands a person in custody under section 11

of the Powers of Criminal Courts (Sentencing) Act 2000 (remand

for medical examination) or any of the following provisions of the

Magistrates' Courts Act 1980 –

(i) section 5 (adjournment of inquiry into offence);

(ii) section 10 (adjournment of trial); or

(iii) section 18 (initial procedure on information against adult

for offence triable either way),

after hearing full argument on an application for bail from him; and

(b) either –

(i) it has not previously heard such argument on an application

for bail from him in those proceedings; or

(ii) it has previously heard full argument from him on such an

application but it is satisfied that there has been a change in

his circumstances or that new considerations have been

placed before it, it shall be the duty of the court to issue a certificate in the prescribed form

that they heard full argument on his application for bail before they

refused the application.

(6B) Where the court issues a certificate under subsection (6A) above in a case

to which paragraph (b)(ii) of that subsection applies, it shall state in the

certificate the nature of the change of circumstances or the new

considerations which caused it to hear a further fully argued bail

application.

(6C) Where a court issues a certificate under subsection (6A) above it shall

cause the person to whom it refuses bail to be given a copy of the

certificate.

…

(11) This section is subject, in its application to bail granted by a constable, to

section 5A of this Act.

Supplementary provisions in cases of police bail

Section 5A

(1) Section 5 of this Act applies, in relation to bail granted by a custody

officer under Part IV of the Police and Criminal Evidence Act 1984 in

cases where the normal powers to impose conditions of bail are available

to him, subject to the following modifications.

(2) For subsection (3) substitute the following –

"(3) Where a custody officer, in relation to any person, –

(a) imposes conditions in granting bail in criminal proceedings,

or

(b) varies any conditions of bail or imposes conditions in respect

of bail in criminal proceedings,

the custody officer shall, with a view to enabling that person to

consider requesting him or another custody officer, or making an

application to a magistrates' court, to vary the conditions, give

reasons for imposing or varying the conditions."

(3) For subsection (4) substitute the following –

"(4) A custody officer who is by virtue of subsection (3) above required

to give reasons for his decision shall include a note of those reasons

in the custody record and shall give a copy of that note to the person

in relation to whom the decision was taken."

…

Reconsideration of decisions granting bail

Section 5B

(1) Where a magistrates' court has granted bail in criminal proceedings in

connection with an offence, or proceedings for an offence, to which this

section applies or a constable has granted bail in criminal proceedings in

connection with proceedings for such an offence, that court or the

appropriate court in relation to the constable may, on application by the

prosecutor for the decision to be reconsidered, –

(a) vary the conditions of bail,

(b) impose conditions in respect of bail which has been granted

unconditionally, or

(c) withhold bail.

(2) The offences to which this section applies are offences triable on

indictment and offences triable either way.

(3) No application for the reconsideration of a decision under this section

shall be made unless it is based on information which was not available to

the court or constable when the decision was taken.

(4) Whether or not the person to whom the application relates appears before

it, the magistrates' court shall take the decision in accordance with section

4(1) (and Schedule 1) of this Act.

(5) Where the decision of the court on a reconsideration under this section is

to withhold bail from the person to whom it was originally granted the

court shall –

(a) if that person is before the court, remand him in custody, and

(b) if that person is not before the court, order him to surrender himself

forthwith into the custody of the court.

(6) Where a person surrenders himself into the custody of the court in

compliance with an order under subsection (5) above, the court shall

remand him in custody.

(7) A person who has been ordered to surrender to custody under subsection

(5) above may be arrested without warrant by a constable if he fails

without reasonable cause to surrender to custody in accordance with the

order.

(8) A person arrested in pursuance of subsection (7) above shall be brought

as soon as practicable, and in any event within 24 hours after his arrest,

before a justice of the peace for the petty sessions area in which he was

arrested and the justice shall remand him in custody.

In reckoning for the purposes of this subsection any period of 24 hours,

no account shall be taken of Christmas Day, Good Friday or any Sunday.

…

Liability to arrest for absconding or breaking conditions of bail

Section 7

(1) If a person who has been released on bail in criminal proceedings and is

under a duty to surrender into the custody of a court fails to surrender at

the time appointed for him to do so the court may issue a warrant for his

arrest.

(2) If a person who has been released on bail in criminal proceedings absents

himself from the court at any time after he has surrendered into the

custody of the court and before the court is ready to begin or to resume

the hearing of the proceedings, the court may issue a warrant for his

arrest; but no warrant shall be issued under this subsection where that

person is absent in accordance with leave given to him by or on behalf of

the court.

(3) A person who has been released on bail in criminal proceedings and is

under a duty to surrender into the custody of a court may be arrested

without warrant by a constable –

(a) if the constable has reasonable grounds for believing that that

person is not likely to surrender to custody;

(b) if the constable has reasonable grounds for believing that that

person is likely to break any of the conditions of his bail or has

reasonable grounds for suspecting that that person has broken any

of those conditions; or

(c) in a case where that person was released on bail with one or more

surety or sureties, if a surety notifies a constable in writing that that

person is unlikely to surrender to custody and that for that reason

the surety wishes to be relieved of his obligations as a surety.

(4) A person arrested in pursuance of subsection (3) above –

(a) shall, except where he was arrested within 24 hours of the time

appointed for him to surrender to custody, be brought as soon as

practicable and in any event within 24 hours after his arrest before a

justice of the peace for the petty sessions area in which he was

arrested; and

(b) in the said excepted case shall be brought before the court at which

he was to have surrendered to custody.

In reckoning for the purposes of this subsection any period of 24 hours,

no account shall be taken of Christmas Day, Good Friday or any Sunday.

(5) A justice of the peace before whom a person is brought under subsection

(4) above may, subject to subsection (6) below, if of the opinion that that

person –

(a) is not likely to surrender to custody, or

(b) has broken or is likely to break any condition of his bail,

remand him in custody or commit him to custody, as the case may

require, or alternatively, grant him bail subject to the same or to different

conditions, but if not of that opinion shall grant him bail subject to the

same conditions (if any) as were originally imposed.

…

(7) Where a custody time limit has expired this section shall have effect as if, in

subsection (3), paragraphs (a) and (c) were omitted.4

4 In a case in which a custody time limit applies, section 7 has effect as if subsection (7)

were inserted at the end thereof: Prosecution of Offences (Custody Time Limits)

Regulations 1987 (SI 1987 No 299) reg 8.

SCHEDULE 1

Persons entitled to bail: supplementary provisions

Part I: Defendants accused or convicted of imprisonable offences

Defendants to whom Part I applies

1. Where the offence or one of the offences of which the defendant is

accused or convicted in the proceedings is punishable with imprisonment

the following provisions of this Part of this Schedule apply.

Exceptions to right to bail

2. The defendant need not be granted bail if the court is satisfied that there

are substantial grounds for believing that the defendant, if released on

bail (whether subject to conditions or not) would –

(a) fail to surrender to custody, or

(b) commit an offence while on bail, or

(c) interfere with witnesses or otherwise obstruct the course of justice,

whether in relation to himself or any other person.

2A. The defendant need not be granted bail if –

(a) the offence is an indictable offence or an offence triable either way;

and

(b) it appears to the court that he was on bail in criminal proceedings

on the date of the offence.

3. The defendant need not be granted bail if the court is satisfied that the

defendant should be kept in custody for his own protection or, if he is a

child or young person, for his own welfare.

4. The defendant need not be granted bail if he is in custody in pursuance

of the sentence of a court or of any authority acting under any of the

Services Acts.

5. The defendant need not be granted bail where the court is satisfied that it

has not been practicable to obtain sufficient information for the purpose

of taking the decisions required by this Part of this Schedule for want of

time since the institution of the proceedings against him.

6. The defendant need not be granted bail if, having been released on bail in

or in connection with the proceedings for the offence, he has been

arrested in pursuance of section 7 of this Act.

Exception applicable only to defendant whose case is adjourned for inquiries or a report

7. Where his case is adjourned for inquiries or a report, the defendant need

not be granted bail if it appears to the court that it would be impracticable

to complete the inquiries or make the report without keeping the

defendant in custody.

Restriction of conditions of bail

8(1) Subject to sub-paragraph (3) below, where the defendant is granted bail,

no conditions shall be imposed under subsections (4) to (7) (except

subsection (6)(d) or (e)) of section 3 of this Act unless it appears to the

court that it is necessary to do so for the purpose of preventing the

occurrence of any of the events mentioned in paragraph 2 of this Part of

this Schedule …

(1A) No condition shall be imposed under section 3(6)(d) of this Act unless it

appears to be necessary to do so for the purpose of enabling inquiries or a

report to be made.

(2) Sub-paragraphs (1) and (1A) above also apply on any application to the

court to vary the conditions of bail or to impose conditions in respect of

bail which has been granted unconditionally.

(3) The restriction imposed by sub-paragraph (1A) above shall not apply to

the conditions required to be imposed under section 3(6A) of this Act or

operate to override the direction in section 11(3) of the Powers of

Criminal Courts (Sentencing) Act 2000 to a magistrates' court to impose

conditions of bail under section 3(6)(d) of this Act of the description

specified in the said section 11(3) in the circumstances specified.

Decisions under paragraph 2

9. In taking the decisions required by paragraph 2 or 2A of this Part of this

Schedule, the court shall have regard to such of the following

considerations as appear to it to be relevant, that is to say –

(a) the nature and seriousness of the offence or default (and the

probable method of dealing with the defendant for it),

(b) the character, antecedents, associations and community ties of the

defendant,

(c) the defendant's record as respects the fulfilment of his obligations

under previous grants of bail in criminal proceedings,

(d) except in the case of a defendant whose case is adjourned for

inquiries or a report, the strength of the evidence of his having

committed the offence or having defaulted,

as well as to any others which appear to be relevant.

9A(1) If –

(a) the defendant is charged with an offence to which this paragraph

applies; and

(b) representations are made as to any of the matters mentioned in

paragraph 2 of this Part of this Schedule; and

(c) the court decides to grant him bail,

the court shall state the reasons for its decision and shall cause those

reasons to be included in the record of the proceedings.

(2) The offences to which this paragraph applies are –

(a) murder;

(b) manslaughter;

(c) rape;

(d) attempted murder; and

(e) attempted rape.

Cases under section 128A of Magistrates' Courts Act 1980

9B. Where the court is considering exercising the power conferred by section

128A of the Magistrates' Courts Act 1980 (power to remand in custody

for more than eight clear days), it shall have regard to the total length of

time which the accused would spend in custody if it were to exercise the

power.

Part II: Defendants accused or convicted of non-imprisonable offences

Defendants to whom Part II applies

1. Where the offence or every offence of which the defendant is accused or

convicted in the proceedings is one which is not punishable with

imprisonment the following provisions of this Part of this Schedule apply.

Exceptions to right to bail

2. The defendant need not be granted bail if –

(a) it appears to the court that, having been previously granted bail in

criminal proceedings, he has failed to surrender to custody in

accordance with his obligations under the grant of bail; and

(b) the court believes, in view of that failure, that the defendant, if

released on bail (whether subject to conditions or not) would fail to

surrender to custody.

3. The defendant need not be granted bail if the court is satisfied that the

defendant should be kept in custody for his own protection or, if he is a

child or young person, for his own welfare.

4. The defendant need not be granted bail if he is in custody in pursuance

of the sentence of a court or of any authority acting under any of the

Services Acts.

5. The defendant need not be granted bail if, having been released on bail in

or in connection with the proceedings for the offence, he has been

arrested in pursuance of section 7 of this Act.

Part IIA: Decisions where bail refused on previous hearing

1. If the court decides not to grant the defendant bail, it is the court's duty

to consider, at each subsequent hearing while the defendant is a person to

whom section 4 above applies and remains in custody, whether he ought

to be granted bail.

2. At the first hearing after that at which the court decided not to grant the

defendant bail he may support an application for bail with any argument

as to fact or law that he desires (whether or not he has advanced that

argument previously).

3. At subsequent hearings the court need not hear arguments as to fact or

law which it has heard previously.