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05/02/24

Bail | Presumption in Favour | KANGS Criminal Litigation Solicitors

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Bail is the conditional release of a suspect granted by a Court or the police containing the promise by the suspect to later appear at a Police Station or Court. It can take different forms and will frequently impose restrictions to ensure that the suspect complies with a police investigation.

In criminal litigation proceedings bail can be granted to persons who have been charged with an offence or convicted of an offence and awaiting sentencing.

Bail can also be granted when a person is brought before the court in respect of extradition proceedings.

However, it may not be available in certain circumstances to suspects who:

  • have been convicted of a crime in the past,
  • on a previous occasion have been granted bail, but have failed to comply with the terms imposed,
  • in the opinion of the court, may not appear as requested,
  • is considered likely to commit a crime whilst on bail.

Helen Holder of KANGS Solicitors explains the key points affecting the granting of Bail.

KANGS has been defending clients charged with alleged criminal conduct of every nature for over 25 years and is rated as one of the best criminal law firms in the country, being ‘Top Ranked’ by the leading legal directories, The Legal 500 and Chambers UK.

Our Team is led by founding, and senior partner, Hamraj Kang who has won The Legal 500 award for ‘Individual Criminal and Fraud Solicitor of the Year’. KANGS has also won The Legal 500 award for ‘Criminal and Fraud Law Firm of the Year’.

Should you require any initial advice, our Team can be contacted as follows:

Presumption in Favour of Bail | KANGS Criminal Courts Solicitors

There exists an assumption that a suspect is entitled to be released on bail pending trial and conviction save in the presence of exceptions outlined below.

Article 5 of the European Convention of Human Rights provides that no one shall be deprived of their liberty save:

  • after conviction by a competent court,
  • for the lawful arrest or detention for noncompliance with the lawful order of a court or in order to secure the fulfilment of any obligation prescribed by law,
  • for lawful arrest or detention effected for the purpose of bringing a person before the competent legal authority on reasonable suspicion of having committed an offence,
  • when it is reasonably considered necessary to prevent the commission of an offence.

The Bail Act 1976 states at section 4:

‘General right to bail of accused persons and others.

(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.

This subsection does not apply as respects proceedings on or after a person’s conviction of the offence.

(2A) This section also applies to a person whose extradition is sought in respect of an offence, when—

(a) he appears or is brought before a court in the course of or in connection with extradition proceedings in respect of 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.

Exceptions To the Right to Bail | KANGS Bail Application Solicitors

As stated above there are exceptions to the assumption that a suspect is entitled to bail.

The Bail Act 1976 states at Schedule 1:

2 (1) 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

  1. fail to surrender to custody. or
  2. commit an offence whilst on bail, or
  3. interfere with witnesses or otherwise obstruct the course of justice, whether in relation to themselves or any other person.’

The Defendant need not be granted bail if:

  • the offenceis an offence triable eitherway,
  • it appears to the court that the defendant was on bail in criminal proceedings on the date of the offence,
  • the court is satisfied that the defendant should be kept in custody for their own protection or, if they are a child or young person, for their own welfare,
  • the defendant is in custody in pursuance of a sentence of a court imposed by an officer under the Armed Forces Act 2006,
  • the court is satisfied that it has not been practicable to obtain sufficient information to make decisions regarding bail, for want of time,
  • having previously been released on bail, the defendant has been arrested for absconding or breaking the conditions of their bail.

Exclusions for Specific Offences

The general right to bail does not include:

  • Murder

Where a person is charged with the offence of murder or attempted murder and has previously been convicted of murder, rape or a serious sexual offence in the UK or an EU member state bail will only be granted if exceptional circumstances apply.

The court must be satisfied that there exists no significant risk that, if released on bail, that person would commit an offence likely to cause physical or mental injury to another person.

  • Manslaughter and serious sexual offences

Similarly, a person charged with such offences where there has been a previous conviction shall only be granted bail where exceptional circumstances apply.

  • Class A Drug Users

In certain circumstances, adult drug users will be denied bail where their offending is drug-related and where they have failed to undergo drug testing when required to do so.

Bail Conditions | KANGS Criminal Defence Solicitors

Courts have the power to impose a wide range of bail conditions including:

  • the requirement to regularly report to a Police Station,
  • surrender of passport,
  • requirement to reside at a particular address,
  • provision of a financial surety, (third party guarantee with monies)
  • Security (lodging of funds with the court)
  • attachment of electronic tagging,
  • imposition of a No Contact Order on one or more individuals, an Exclusion Order from a particular area(s), or a time restrictive Curfew.

Failure to observe these conditions may result in arrest and police custody pending another court hearing at which the court may impose different and more severe conditions or remove bail and order detention in prison pending trial.

Breach of Bail Conditions

The Bail Act 1976 contains the following.

  • section 7(3)

A Police Officer has power to arrest a person if he has reasonable grounds for believing that the person is likely to break any of the conditions of their bail or has reasonable grounds for suspecting that that person has broken any of those conditions.

  • section 7(4)

A person so arrested must be brought as soon as practicable, and in any event within twenty-four hours of his arrest, before the Magistrates’ Court for the area in which he was arrested.

  • Section 7(5)

The Magistrates' Court may remand a defendant in custody or grant bail subject to the same or to different conditions if it is of the opinion that:

  • the defendant is not likely to surrender to custody; or
  • that the defendant has broken or is likely to break any condition of bail.

How Can We Assist? | KANGS National Criminal Defence Solicitors

Anyone remanded in custody or ordered to appear before any court should seek immediate legal advice and guidance as experienced representation in criminal investigations can be vital in securing immediate bail.

Additionally, anyone arrested should not engage in any form of interview or questioning until a legal representative has been consulted.

Should you be arrested or investigated for any alleged criminal offence of any nature, then please do not hesitate to contact our Team, who would be delighted to assist you.

We welcome enquiries by:

Email: Info@kangssolicitors.co.uk

Telephone: 0333 370 4333

Sukhdip Randhawa

Sukhdip Randhawa
Legal Director

Email Phone
Helen Holder

Helen Holder
Partner

Email Phone
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