3.1 Right to Bail & Statutory Exceptions

3.1 Right to Bail & Statutory Exceptions

Pre-trial liberty is a fundamental tenet of the criminal justice system in England and Wales. The law balances the constitutional presumption of innocence and the right to liberty under Article 5 of the European Convention on Human Rights (ECHR) against the public interest in ensuring that defendants attend court, refrain from committing further offences, and do not interfere with the administration of justice.

---

The Statutory Presumption in Favour of Bail

The primary statutory foundation for pre-trial release is Section 4 of the Bail Act 1976. Section 4 establishes a general statutory presumption in favour of bail:

• Every person accused of an offence appearing before a magistrates' court or the Crown Court must be granted bail, except as provided in Schedule 1 to the Act.
• The right applies to defendants appearing at initial hearings, remanded for inquiries or reports, or awaiting sentence after conviction (unless the court considers there is no real prospect of a non-custodial outcome).
• Bail may be granted by the police (custody officer under PACE 1984 as amended by the Policing and Crime Act 2017) prior to first court appearance, or by the court.

Where a person is brought before a court charged with an imprisonable offence, the court MUST grant bail unless one of the statutory exceptions in Schedule 1 to the Bail Act 1976 is established by the prosecution.

---

Primary Statutory Exceptions to Bail (Schedule 1, Part 1)

For offences punishable with imprisonment, Schedule 1, Part 1, Paragraph 2 of the Bail Act 1976 sets out the three primary grounds upon which a court may withhold bail. The court must be satisfied that there are substantial grounds for believing that the defendant, if released on bail (whether subject to conditions or not), would:

1. Fail to surrender to custody (FTS);
2. Commit an offence while on bail (COB); or
3. Interfere with witnesses or otherwise obstruct the course of justice (IOCJ).

The Legal Standard: "Substantial Grounds for Believing"

The statutory threshold requires more than mere suspicion or police apprehension. The prosecution must establish, and the court must find, objective facts justifying a reasonable belief that one or more of the specified risks will materialize if the defendant is released.

---

Secondary Statutory Grounds for Withholding Bail

Beyond the primary three grounds, Schedule 1, Part 1 provides additional specific exceptions:

• Own Protection or Welfare (Paragraph 3): Bail may be refused if the court is satisfied that the defendant should be kept in custody for their own protection or, if a child or young person, for their own welfare.
• Serving Custodial Sentence (Paragraph 4): Bail may be refused if the defendant is already in custody serving a sentence of imprisonment for another offence.
• Lack of Sufficient Information (Paragraph 5): Bail may be withheld for a short period where the court is satisfied that it has not been practicable to obtain sufficient information to make a bail decision for want of time.
• Previous Breach of Conditional Bail (Paragraph 6): Bail may be refused where the defendant has previously been arrested under Section 7 of the Bail Act 1976 for breaching bail conditions in the current proceedings.

---

The Statutory Balancing Exercise: Schedule 1, Paragraph 9 Factors

When evaluating whether there are substantial grounds under Paragraph 2, the court MUST take into account all relevant statutory factors specified in Schedule 1, Part 1, Paragraph 9 of the Bail Act 1976:

---

Restrictions on Refusing Bail: The "Real Prospect" Test

Introduced by the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO 2012) into Paragraph 1A of Schedule 1, Part 1, the "Real Prospect" Test restricts pre-trial remands in custody for minor offences.

Under Paragraph 1A, a court CANNOT refuse bail under Paragraph 2 (FTS, COB, IOCJ) if it appears to the court that there is no real prospect that the defendant will be sentenced to a custodial term if convicted of the offence.

This statutory safeguard prevents defendants from serving pre-trial custodial remands that exceed any sentence a court would realistically impose upon conviction. The rule is subject to narrow statutory exceptions (e.g. where there is a risk of domestic violence or previous failure to surrender in the current proceedings).

---

Statutory Restrictions for Homicide & Serious Sexual Offences

Specific statutory regimes override or restrict the general right to bail for grave offences:

Section 25 Criminal Justice and Public Order Act 1994 (CJPOA 1994)

Where a defendant is charged with murder, manslaughter, or rape (or attempt), AND has a prior conviction for any such offence, Section 25 provides that bail MUST NOT be granted unless the court is satisfied that there are exceptional circumstances justifying bail.

Exclusive Crown Court Jurisdiction for Murder

Under Section 115 of the Coroners and Justice Act 2009 (amending the Senior Courts Act 1981), a magistrates' court has no jurisdiction to consider or grant bail in murder cases. The magistrates must remand the defendant in custody and send the case to the Crown Court, where a Crown Court judge must hear any bail application within 48 hours of the initial appearance.