Bail: A Brief Guide
The starting point in a bail decision is a presumption that a defendant will be entitled to bail. There are, however, circumstances in which the prosecution can object to bail. Before a person has been convicted of an offence, the prosecution can only object to bail if one or more of three conditions are met. These grounds for refusing bail are:
That the defendant will fail to appear at court to answer his/her bail
That the defendant will commit other offences while on bail
That there is a risk that the defendant will interfere with prosecution witnesses
Bail objection: Failure to appear
A court will usually look at the following factors when deciding whether a defendant applying for bail is likely to not return to answer his or her bail, and whether conditions are necessary:
Previous record of failing to answer bail
A person's record of previous convictions will typically show whether there has been a history of failing to answer bail. If there is a bad bail attendance record, then bail solicitors will need to advance convincing explanations of what happened on those occasions and reasons why they are less significant than they seem have to be presented to the court.
Whether the defendant has ties to the community
It is often harder for immigrants to get bail when accused of imprisonable offences, because Judges are concerned that they will simply return to their native country to avoid conviction. It remains to be seen whether difficulties arising from Brexit will have an impact on this. Similarly, a court may also be concerned if a defendant's lifestyle has an international element. Bail solicitors will be aware that ties to family and financial interests in the UK need to be shown to show that relocation to a different country is unlikely.
Seriousness of the offence, and strength of the evidence
This is not an official reason for a court to not grant bail but, for serious offences, the theory is that if the evidence is strong then so is the chance of a long prison sentence, and therefore the chance of the defendant not turning up to court is higher. This argument can be especially difficult for bail solicitors to overcome where the offence alleged is of the most serious type such as murder or armed robbery.
Bail Objection: Further offences on bail
A court will be less likely to give bail where there is a recent history of offending while on bail for other offences. Again, the court will have access to this information through the defendant's previous convictions printout (or Antecedents). The court will be less concerned if the previous offences are not of a similar or equally serious category to the offence charged. If someone is charged with robbery, but has previous offences committed while on bail for driving whilst disqualified, good bail solicitors would ask the court to give the previous offences less weight.
Bail Objection: Interference with witnesses
The prosecution can object to bail on the grounds that keeping the defendant in prison will prevent him or her from interfering with prosecution witnesses, i.e. to stop them giving evidence in the trial, or getting them to change their evidence. This has to be argued on the facts, and is more likely to prevent bail if the defendant knows or has contact with the witnesses in question. In some cases threats and intimidation are part of the allegations, and this can make it easier for the prosecution to claim that witnesses are likely to be interfered with if the defendant is granted bail. It is important that bail solicitors work closely with their client to address any facts or circumstances which are being relied upon by the prosecution.
What are bail conditions?
Bail conditions are requirements the court gives to a defendant who is applying for bail so that he or she does not have to remain in prison before the proceedings are ended. Some defendants will be granted unconditional bail. This means they have been granted bail without any conditions attached. Sometimes, however, a court may only feel able to grant bail where it is able to attach conditions to the bail. Bail conditions something a court can use to deal with any risks they feel a defendant may pose.
The use of bail conditions allows defence bail solicitors to answer the objections the prosecution may raise to bail. Some common conditions that a court may impose include:
Curfew / residence requirement
The court can require that the defendant live at a certain address, often away from the alleged victim in the case. This is a condition a court may use if it is concerned that a defendant may:
1. Disappear or "abscond" and therefore not turn up at court when required. The fixed address will mean it is easier for the police to keep tabs on a defendant.
2. Interfere with prosecution witnesses. A bail address which is a distance away from witnesses or the scene of an offence may reduce this risk.
3. Fear that a defendant may commit further offences while on bail. A bail address away from the alleged crime or a curfew requirement may help in keeping a defendant away from an environment where they may be more likely to commit further offences. Many offences, of course, occur at night.
This allows the police to keep aware of the rough location of a defendant as they will have to report to a police station three or more times per week. This means that the police will quickly become aware if a person disappears or absconds.
Surety / Security
Surety and security are two important tools for bail solicitors to use in a bail application for any serious offence. They are financial assurances made to the court usually by family members of the defendant, to guarantee his or her attendance at court whilst on bail.
Security is money paid into court before the defendant is allowed out on bail. This must be paid into court in cash or other cleared funds.
Surety is money promised to the court by third parties (e.g. family members) and is only paid if the defendant does not answer bail or turn up to court. It may take the form of money in a bank account or other assets such as equity in a property.
Documentary evidence must be provided to the court by bail solicitors showing that this money is available, or that assets equivalent to that amount exist. This could be in the form of a bank statement or a mortgage statement accompanied by a house valuation.
A good bail application for a serious Crown Court offence (e.g. murder, drug importation etc.) will often include a combination of both security (money paid) and surety (money promised). The precise amount required varies, but must be a good proportion of the assets of the person providing the asset / money. The amount offered by the bail solicitors on behalf of the surety or security provider needs to be enough that it would financially hurt the provider if the defendant did not answer his bail.
Conditions of non-contact with witnesses
This is something that should be offered wherever the alleged victim is said to have suffered in any type of attack, or where there are already allegations of any interference with witnesses, or a possibility of it. Cases which involve intimidation such as blackmail or allegations of threatening behaviour etc. are relevant here.
A condition of non-contact with prosecution witnesses is often not enough on its own to secure bail, but can be necessary as a first consideration when a defence bail solicitor is considering which bail conditions should be offered in order to achieve freedom before trial for the client.
What is the best approach in applying for bail?
It is, of course, not the case that a court will not grant bail simply because the prosecution raise an objection to bail. Good defence bail solicitors prepare bail applications which will predict that the prosecution will raise certain objections and answer them in advance by being prepared to attack them and offering the judge bail conditions. The goal is to beat the prosecution to the punch, increasing the chance of bail being granted, by wrong-footing the prosecution objections.
As with most legal work of any description, there is no substitute for preparing thoroughly when applying for bail. Good preparation of a bail application will raise avenues of inquiry that bail solicitors should follow to firm up. For most Crown Court cases, the defendant will only have one chance to make a bail application, so every piece of background supporting evidence has to be presented to the court, and the notice of application sent to the court before the hearing must include all the supporting documentation. If an important document relating to, say, a mortgage statement for a surety is not provided at this stage, there may not be a second chance. This may delay the application. It can be sometimes be unpleasant but essential that the application waits a few days so that the defendant does not spend several months in custody after an unsuccessful bail application.
Bail is not a foregone conclusion for any serious offences, and applications must be treated with care and meticulously prepared. A starting point for any defendant or family facing this situation to initially obtain free legal advice from bail solicitors.