Bail is the release of a person who has been charged with or convicted of an offence, on the condition that they return to court at a later date. The idea is simple: a person is presumed innocent until proven guilty, so they should not be locked up before trial unless there is a good reason to keep them there. Most people who are bailed will not have any conditions attached, but the court can impose conditions if it thinks it is necessary.
Being denied bail means being held in custody, sometimes for months, before your trial even starts. That can mean losing your job, your home, and contact with your family. For the justice system, keeping someone in custody is expensive and takes up prison space. So the general rule is that a person should be granted bail unless there is a specific reason not to. You need to understand this principle because it underpins everything else about bail law.
A person accused of an offence shall be granted bail except as provided in Schedule 1 to this Act. This establishes the starting point: the defendant gets bail unless an exception applies.
Always remember: the default position is that the defendant GETS bail. The prosecution has to show why bail should be refused. If you are advising a client, you should start from the position that they should be released and work from there.
Section 4 of the Bail Act 1976 gives a general right to bail. This means that when a person appears before a court charged with an offence, they have the right to be released on bail. The court can only refuse bail if one of the exceptions in Schedule 1 applies. Think of it as a presumption in favour of liberty. The defendant does not have to argue for their freedom - the court has to justify taking it away.
The right to bail applies at every stage of criminal proceedings: when a person is first charged by the police, at the first hearing before the magistrates' court, at subsequent hearings, and even after conviction pending sentence or appeal. However, the right is not absolute. There are clear statutory exceptions where bail can be refused, and the court can attach conditions to bail to address any concerns it has about releasing the defendant.
Although s.4 creates a general right, it is not absolute. The defendant does not have a human right to bail in all circumstances. The court must balance the defendant's right to liberty against the need to protect the public, ensure the defendant attends court, and prevent interference with witnesses or evidence.
Schedule 1 to the Bail Act 1976 sets out the circumstances where the court can refuse to grant bail. These exceptions fall into several categories: where the defendant is unlikely to surrender to custody, where they might commit further offences while on bail, where they might interfere with witnesses or evidence, and where their release would cause a loss of confidence in the criminal justice system. Each exception requires the court to consider specific factors.
The most common reason for refusing bail is the court's belief that the defendant will not return to court for their trial. This is a judgment the court makes based on the facts of the case and the defendant's background. The court will look at things like whether the defendant has strong ties to the area, whether they have a stable address, whether they have previously failed to surrender to bail, and the likely sentence if they are convicted.
When assessing whether a defendant will surrender to bail, the court considers: the defendant's community ties (family, employment, accommodation), their previous criminal record and history of complying with court orders, the strength of the prosecution evidence, and the likely length of custody if convicted. A defendant facing a long prison sentence has more incentive to abscond, so the court will be more cautious in those cases.
If your client has strong community ties, make sure the court knows about them. Evidence of stable employment, a fixed address, caring responsibilities, and a clean record of previous court appearances can all help to counter any suggestion that they will abscond.
The court can refuse bail if it believes the defendant will commit further offences while released. This is particularly relevant where the defendant has a history of similar offences or where the alleged offence is serious or violent. The court has to form a genuine belief based on evidence, not just speculation. The prosecution will often point to previous convictions or the circumstances of the current charge to support this argument.
The court cannot refuse bail on this ground based on general suspicion. It needs specific evidence, such as the defendant's criminal record showing a pattern of similar offending, recent offences committed while on bail, or the nature of the current charge indicating a propensity for violence. If the defendant has multiple recent convictions for the same type of offence, the court is more likely to find there is a real risk of further offending.
Under s.24 Criminal Justice Act 2003, the court must consider whether the defendant is subject to a SHPO or other order that restricts their behaviour. If the defendant is already subject to restrictions and they are charged with breaching those restrictions, the court may be less inclined to grant bail.
The court can refuse bail if there is a real risk that the defendant will interfere with witnesses, attempt to pervert the course of justice, or otherwise obstruct the investigation or prosecution. This might include intimidating witnesses, pressuring them to withdraw statements, or destroying evidence. The risk must be real and based on evidence, not just a theoretical possibility.
Evidence of interference risk might include: previous convictions for intimidating witnesses or perverting the course of justice, attempts to contact witnesses since the charge was laid, threatening behaviour towards prosecution witnesses, or the defendant's position in the community (for example, if they hold significant power or influence over potential witnesses). The court may impose conditions such as non-contact orders to mitigate this risk rather than refusing bail outright.
Under Schedule 1, paragraph 9 of the Bail Act 1976, if the defendant has previously failed to surrender to police or court bail, there is a presumption that they will be refused bail. This is not an absolute bar, but the burden shifts to the defendant to show why they should be granted bail this time. The court will look at the circumstances of the previous failure: was it a deliberate decision to abscond, or were there exceptional circumstances that explained it?
The court may refuse bail where the defendant has been previously released on bail in criminal proceedings and has failed to surrender to custody, and the court is satisfied that there are no exceptional circumstances justifying bail.
If your client has a previous failure to surrender, you need to explain what has changed. Have their circumstances improved? Do they now have stable accommodation or employment? Was the previous failure due to a genuine misunderstanding or emergency? The court needs a convincing reason to believe things will be different this time.
Under Schedule 1, paragraph 9A, if the defendant is charged with an offence committed while they were already on bail, there is a presumption against granting bail. This makes sense from the court's perspective: if the defendant has already used their freedom to commit another offence, why should they be trusted again? As with paragraph 9, the defendant can argue that there are exceptional circumstances justifying bail.
Exceptional circumstances are a high bar. The courts have held that the mere passage of time, or a change in the defendant's personal circumstances, is not usually enough. Something unusual or unexpected about the situation is required. For example, if the defendant committed the offence because they were the victim of duress, or if the new charge is relatively minor and unrelated to the original offence, the court may find exceptional circumstances exist.
Under Schedule 1, paragraph 9B, where the defendant is charged with, or has been convicted of, an indictable or either-way offence, AND they have a previous conviction for an imprisonable offence for which they received a custodial sentence, there is a presumption against bail. This is designed to target repeat serious offenders. Again, the defendant can argue exceptional circumstances.
The previous offence must have resulted in a custodial sentence (not just a suspended sentence). The custodial sentence must have been imposed, even if it was later reduced on appeal. Make sure you check the exact terms of the previous sentence when advising your client.
Under Schedule 1, paragraph 2B, the court can refuse bail where it believes that granting bail would cause a loss of confidence in the criminal justice system. This exception is controversial because it is quite vague and can be used in a wide range of situations. It is most commonly invoked in cases involving very serious offences, such as murder or terrorism, where public outrage would follow if the defendant were released.
The court must consider: the nature and seriousness of the offence, the likely sentence if convicted, and the public reaction to the defendant being released. This ground is not about the risk of further offending or absconding specifically - it is about the broader public perception of the justice system. Courts use this ground sparingly because it involves a value judgment about public sentiment rather than an objective assessment of risk.
Sometimes the court is concerned about releasing a defendant unconditionally, but does not think the concerns are serious enough to justify refusing bail altogether. In those cases, the court can attach conditions to the bail. Conditions are designed to address the specific risk the court has identified. For example, if the court is worried about the defendant absconding, it might require them to live at a specific address. If it is worried about interference with witnesses, it might impose a non-contact condition.
The court may grant bail subject to such conditions as appear to the court to be necessary to ensure that the defendant surrenders to custody, does not commit an offence while on bail, and does not interfere with witnesses or otherwise obstruct the course of justice.
| Condition | Description | When Used |
|---|---|---|
| Residence | Defendant must live at a specified address | Risk of absconding; ensures court can locate them |
| Reporting | Defendant must report to a police station at set times | Ongoing monitoring; reassures court defendant is complying |
| Surety | Third party pledges money if defendant fails to surrender | Risk of absconding; gives financial incentive to comply |
| Security | Defendant deposits money with the court | Rare; used for serious cases with financial means |
| Non-contact | Defendant must not contact named individuals | Risk of witness intimidation or interference |
| Curfew | Defendant must remain at a specified address during set hours | Risk of further offending or absconding |
| Electronic monitoring | Defendant wears an electronic tag | Curfew enforcement; continuous monitoring |
| Surrender passport | Defendant must hand over their passport | Risk of fleeing the jurisdiction |
| International travel ban | Defendant must not leave England and Wales | Risk of absconding abroad |
A surety is a person who agrees to pay a sum of money to the court if the defendant fails to surrender to bail. The surety does not pay anything upfront - they are effectively a guarantor. The court must be satisfied that the surety is a suitable person, has sufficient means to pay the sum, and understands their obligation. The court will assess whether the surety will be able to exert control over the defendant and ensure they attend court.
A security is where the defendant themselves deposits a sum of money with the court before being released. Unlike a surety, this is the defendant's own money at risk. Security is relatively rare and is usually only imposed in more serious cases where the defendant has significant financial means. The idea is that the defendant will not want to lose their money, so they will return to court.
If the court imposes conditions that are disproportionate to the risk identified, you can argue that the conditions should be removed or varied. Bail conditions must be necessary and proportionate. A curfew condition for a low-risk defendant facing a minor charge may be unreasonable.
After the police charge a person, they can release them on police bail rather than taking them to court in custody. The police can impose conditions similar to those available to the court, such as residence, reporting, and surety conditions. The police bail will specify a date on which the defendant must attend court. Under s.47 PACE 1984, the police can grant bail either with or without conditions.
The police can also release a suspect on pre-charge bail while they continue their investigation. Under the Policing and Crime Act 2017 (as amended by the Police, Crime, Sentencing and Courts Act 2022), the initial period of pre-charge bail is limited. For most offences, the initial bail period is 3 months. This can be extended by a senior officer for further periods of 3 months up to a maximum of 6 months, and beyond that with a magistrate's authorisation.
If the police release a suspect without bail (known as "release under investigation" or RUI), there are no conditions and no time limits. The suspect remains under investigation indefinitely. This has been criticised for leaving suspects in limbo. If your client is released under investigation, you should press the police for a charging decision and, if necessary, apply to the magistrates' court for a determination.
At the first hearing, the magistrates' court must consider whether to grant bail. The court starts from the general right to bail under s.4 and then considers whether any Schedule 1 exception applies. If the court decides to refuse bail, it must give its reasons. If the defendant is already on police bail, the court will review that bail and decide whether to continue it, vary the conditions, or remand the defendant in custody.
Under s.5 of the Bail Act 1976, if the court refuses bail, it must state its reasons. This is important because the defendant may want to appeal the decision, and they need to know why bail was refused to challenge it effectively. The reasons should identify which Schedule 1 exception the court relied on and what facts led it to that conclusion.
Where a court refuses to grant bail to a person, the court shall state its reasons for doing so, and those reasons shall be recorded by the court.
If the magistrates' court refuses bail, the defendant can make a further application to the same court. However, under s.5A of the Bail Act 1976, the court will only hear a further application if there has been a change in circumstances since the last application. This prevents the defendant from repeatedly asking the same court for bail without anything new to say. The change in circumstances must be material to the bail decision.
A change in circumstances might include: new evidence that weakens the prosecution case, a suitable surety becoming available, a change in the defendant's living situation, new information about the timing of the trial, or a reduction in the charges. Simply saying "I promise to turn up this time" is not enough - there needs to be an objective change in the situation that is relevant to the grounds on which bail was previously refused.
A magistrates' court shall not entertain an application for bail from a person who has previously applied to the court for bail in the proceedings unless the application is made on grounds that were not previously raised, or there has been a change in circumstances since the previous application.
If the magistrates' court refuses bail, the defendant can appeal to the Crown Court under s.22 of the Magistrates' Courts Act 1980. The appeal must be made as soon as practicable and is usually heard within a few days. The Crown Court will hear the matter afresh and can grant bail even if the magistrates refused it. The Crown Court has the same power to impose conditions as the magistrates' court.
Under s.81 of the Senior Courts Act 1981, a defendant can also apply for bail to a High Court judge. This is particularly useful if the magistrates have refused bail and the Crown Court is not sitting for some time. The High Court judge can grant bail on such terms as they think fit. This is a useful route to remember if you need to get bail for a client urgently.
Under s.6 of the Bail Act 1976, if a person who has been released on bail fails without reasonable cause to surrender to custody at the appointed time, they commit a criminal offence. This is punishable with up to 12 months' imprisonment on summary conviction, or a fine, or both. On indictment, the maximum sentence is the same as for the original offence (but capped at 12 months for the bail offence itself).
A person who, having been released on bail, fails without reasonable cause to surrender to custody shall be guilty of an offence. On summary conviction, liable to imprisonment for up to 12 months or a fine or both.
If a defendant breaches a condition of their bail (for example, by going to a prohibited address or contacting a witness), they can be arrested under s.7 of the Bail Act 1976. The police can arrest the defendant without a warrant and bring them back before the court. The court may then vary the conditions, add further conditions, or refuse bail altogether and remand the defendant in custody.
Under s.7 Bail Act 1976, a constable may arrest without warrant a person who has been released on bail if the constable has reasonable grounds for believing that the person has broken any of the conditions of their bail. The arrested person must be brought before a magistrates' court as soon as practicable and within 24 hours. The court then decides whether to vary the bail conditions, add new conditions, or remand in custody.
If the defendant fails to surrender to bail and a surety was taken, the court may order the surety to pay the amount they guaranteed. The surety can apply to the court to be excused from payment if they can show they took all reasonable steps to ensure the defendant surrendered. However, the court's primary concern is that the surety accepted the obligation and failed to produce the defendant.
Article 5 of the European Convention on Human Rights protects the right to liberty and security. It provides that no one shall be deprived of their liberty except in specified circumstances, which include the lawful detention of a person after conviction by a competent court, and the lawful arrest or detention of a person on reasonable suspicion of having committed an offence. The Bail Act 1976 should be interpreted consistently with Article 5.
Article 5(3) provides that everyone arrested or detained on suspicion of an offence shall be entitled to be tried within a reasonable time or to be released pending trial. This means that remanding a defendant in custody for an extended period without trial may breach their human rights. The court must consider the reasonableness of the time the defendant will spend in custody before trial when deciding whether to refuse bail.