26.2 Bail and First Hearings

This OpenExamPrep section is independent study material for SQE1 FLK2. It is not a Ministry of Justice circular. First hearings collapse several decisions into one list: classification, legal aid, plea or sending, and bail. September 2026 FLK2 tests the procedure for applying for and opposing bail, and it can test criminal legal aid here through the representation order.

The right to bail and the exceptions

Bail Act 1976 s.4 creates a right to bail for a person accused or convicted of an offence who appears before a magistrates' court or the Crown Court, subject to Schedule 1. It is a right, not a favour. For an imprisonable offence (Schedule 1 Part I) the court need not grant bail if satisfied that there are substantial grounds for believing the defendant would:

• fail to surrender to custody,
• commit an offence while on bail, or
• interfere with witnesses or otherwise obstruct the course of justice.

Other exceptions include the defendant's own protection (or, if a child or young person, their own welfare); the fact they are already serving a custodial sentence; insufficient information (a short remand to find facts); arrest under s.7 in connection with the current charge; and, in specified situations, the allegation that the offence was committed on bail.

For murder, a Crown Court judge takes the bail decision (Coroners and Justice Act 2009). Do not tell a client charged with murder that the magistrates will "sort bail this afternoon".

Statutory factors include the nature and seriousness of the offence and the probable sentence, character, antecedents, associations and community ties, previous failures to surrender, the strength of the case, and any others that appear relevant. A strong case is relevant; it is not itself an exception. A youth or a mentally unwell adult may generate an own-protection argument that cuts both ways: the street may be unsafe, but a cell may be worse. Put the welfare evidence on both sides of the ledger rather than treating vulnerability as a reason to skip the Schedule 1 analysis.

Conditional bail

Unconditional bail is the starting point. Conditions may be imposed only if they are necessary to meet a bail risk. They are not a punishment and they are not a way of marking the court's disapproval of the charge.

A surety promises to forfeit a sum if the defendant fails to surrender. A security is a deposit. Both target failure to surrender. Match the package to the objection. A vague offer of "any conditions the court wants" is not advocacy.

Applying for bail and opposing bail

FLK2 names both tasks. On an exam question, identify whose hat you are wearing.

Defence application. Name the exception the court is being invited to use. Then meet it with facts: a real address, employment or caring responsibilities, a named surety who understands the duty, the holes in the IDPC, and a condition package that targets the stated risk. If the client is a youth, or has mental health or communication needs, say how custody would harm them and how the proposed address will actually be supervised. Invite the court to grant bail on those conditions and to record reasons if it refuses.

Prosecution opposition. Object only with a reasoned Schedule 1 exception, supported by information: PNC convictions and failure-to-surrender findings, alleged offending on bail, messages that show witness intimidation, lack of community ties, and a likely custodial sentence. "The Crown objects to bail" with no exception identified is not a submission. If you oppose on failure to surrender, explain why residence and reporting will not meet the risk. If you oppose on interference, identify the witness and the mechanism of interference. For a vulnerable complainant, be specific; do not recite the charge and sit down.

The court must give reasons when withholding bail or imposing conditions. Write those reasons down. They are the skeleton of the next application or the prosecution appeal.

Further applications and appeals

Further applications (Schedule 1 Part IIA). If the court has heard a fully argued application and refused bail, it need not hear the same arguments again. A later magistrates' court application requires a change of circumstances or new arguments that were not previously before the court. Fresh disclosure that weakens the case, a verified bail-hostel bed, a new surety, or the falling away of a co-accused who was said to create an interference risk can amount to a change. A first hearing that was not a full argument does not exhaust the right to a proper application the next sitting.

Defence challenge. After magistrates refuse bail, an application may be made to the Crown Court. It is a fresh decision in practice, even when people call it an appeal. Take a note of the magistrates' reasons, the conditions offered, and what has changed.

Prosecution challenge. Under the Bail (Amendment) Act 1993 the prosecution may appeal to the Crown Court against a grant of bail for an imprisonable offence. Oral notice is given at the conclusion of the hearing, then written notice follows. The defendant is remanded in custody pending that appeal. Diary the tight timetable; this is not a 28-day process.

Absconding and breaches

Failing to surrender (Bail Act s.6) is a separate criminal offence. It is a defence for the defendant to prove reasonable cause. A s.6 finding will haunt the next bail application even if the underlying allegation is thin.

Breach of conditions is not itself a criminal offence. A constable may arrest under s.7 if they reasonably believe the defendant is not likely to surrender, or has broken or is likely to break a condition. The person must be brought before a magistrates' court as soon as practicable and in any event within 24 hours (disregarding Christmas Day, Good Friday, and Sunday). The court may remand in custody or re-grant bail on the same or different conditions. Do not tell a client that missing a signing-on is "another charge". Tell them it is a route back into custody.

First hearings: classification, legal aid, and what actually happens

Every adult prosecution starts in the magistrates' court. Classification drives the rest of the hearing.

Before that fork the court deals with identity, the charge, Initial Details of the Prosecution Case (CrimPR Part 8), bail, and representation.

Applying for a representation order

Police-station advice is not a representation order. For court proceedings the client needs a determination that they qualify for criminal legal aid: the interests of justice test in LASPO 2012 s.17 and, for adults, the means test.

Interests of justice (the Widgery criteria) include whether the client is likely to lose liberty, livelihood, or serious reputation; whether a substantial question of law arises; whether they can understand the proceedings or present their own case; whether witnesses must be traced or interviewed; whether expert cross-examination is needed; and the interests of another person (for example a child complainant). Crown Court trial is treated as satisfying interests of justice. A short non-imprisonable motoring case often will not. A client with a learning difficulty, poor English, or youth is more likely to satisfy the understanding and presentation factors — weave that into the form, do not assume the Legal Aid Agency will guess.

Means: adults complete the financial application (commonly CRM14 and CRM15). Magistrates' court legal aid is pass/fail; it does not use the Crown Court contribution regime. Applicants under 18 are financially eligible. If the order is refused, explain private representation, the limits of the court duty solicitor (typically that day's hearing, and not for non-imprisonable matters outside the scheme), and the right to reapply if facts change.

SQE1 can test this at the first-hearing station: a client facing a realistic custodial either-way allegation needs an order applied for immediately. A completed means form is not optional extra paperwork.

The defence solicitor's role

A competent first-hearing solicitor has taken instructions on the facts, antecedents, bail address, and plea; has read the IDPC; and has decided the live issues: legal aid, bail, plea (or indication), and venue. You advise; the plea is the client's decision. You do not let a vulnerable client plead guilty "to get it over with" without checking fitness, language, and whether the IDPC discloses a triable issue.

At court you identify yourself and the client; apply for the representation order if it is not already granted; make or meet the bail application; take the next step that classification requires; seek or agree case-management directions if the case remains in the magistrates' court; and make a full attendance note. If a youth has been listed in the adult court by mistake, or an intermediary is needed, raise it before plea.