Obtaining Bail in Criminal Proceedings
One of the most frequent concerns of defendants in criminal proceedings are: Will I get bail? or How do I get bail? With trial waiting lists in many Courts stretching to absurd lengths many defendants are rightly concerned that they do not await their trial in Custody.
So how can it be that there are such a variation of people who are granted bail? I am conducting a case presently on behalf of Mr S, he is alleged by HMRC to have been a ringleader in a £60M money laundering operation. Not only did we manage to ensure that he was granted bail but upon an application to the Guildford Crown Court I managed to vary his bail so as to allow him to travel to India for his father's funeral. On the other hand I recently had the family of a man approach me about getting him bail. He was a man of good character alleged to have been involved in a relatively modest fraud case valued at no more than £10K. He was in prison awaiting his trial.
So why is bail granted in some cases and not in others? Why are some people granted bail when accused of serious offences whereas others facing far less serious offences denied bail?
The answer lies in a number of areas: the quality of the application made, the way it is presented, the judge or tribunal who considers the application and most crucially the tenacity of the legal representatives.
It is impossible to cover the whole of the law of bail in a single article (whole textbooks have been written on the topic) but we can have a look at the basics.
Apart from in cases involving Murder or Rape there is a presumption in favour of Bail under s4(1) of the Bail Act 1976. What this means in practice is that Bail should be granted by the Court unless 'there are substantial grounds for belief' that any one of a number of outcomes stated in Schedule 1 of the Bail Act 1976 will occur.These are:
- That the defendant will commit further offences if released on bail
- That the defendant will fail to surrender if granted bail
- That the defendant will interfere with witnesses or otherwise obstruct the course of justice if granted bail.
This means that the prosecution must show to the satisfaction of the Court that there are substantialgrounds to believe that any of these outcomes or a combination of them will occur. This has to be proved to the Court by the prosecution, it is not for the defence to disprove them although in cases where the Court is satisfied that one or more of these outcomes will occur the defence may defeat the remand in custody by offering conditions to bail that will satisfy the Court that the outcome will not occur. It should be noted that the strict rules of evidence do not apply in Bail Application hearings- eg Re: Moles .
By showing the Court that there are substantial grounds for belief that the above outcomes will occur the Prosecution may draw the Court's attention to the following factors as outlined in Para 9 of Pt 1 of the Bail Act. These are:
a) The nature and seriousness of the offence (although this may not be conclusive or sole ground for withholding bail- Humum v Mauritius )
b) The character of the defendant (his previous convictions, especially those that are of a similar type or those that show failure to surrender to custody or those that are committed on bail) and his community ties and associations (is he a member of a known gang? Is he born in the UK? Is he resident in the UK? Does he have a job, family, a house or a business in the UK? By the same token are there any factors that draw him abroad such as foreign family, assets etc.)
c)c) The defendant's record when previously granted bail in criminal proceedings.
cii)d) The strength of the evidence against the defendant (taking the prosecution case at its highest), this does not apply to those convicted or awaiting reports.
The Court may also remand a defendant in custody for his own protection although this a seldom a ground that the prosecution rely upon and seldom if at all do they rely upon it successfully.
If bail is granted then the Court may either remand the defendant on conditional or unconditional bail. It is the imposition of conditions that will often persuade a Court to grant bail in cases where they would otherwise withhold it.
So how to get bail in the Crown Court (or Magistrates Court for that matter)?
The golden rule is that it is better to be on bail than in custody. Applications can be made to the Court to relax conditions of bail once bail has been granted and it has been shown that the defendant is capable of complying with the conditions granted. So it is important to offer the Court such an impressive package of bail conditions that any fears they may have had about granting bail will be met by the imposition of those conditions.
What bail conditions can be offered? The answer to this is that within reason any conditions can be offered and it is often the ingenuity of defence counsel that can make the difference in tricky cases.
The typical type of conditions that can be offered in bail applications are:
- Residence- living at a certain address
- Reporting- signing on at a local police station a number of times per week
- Curfew- staying at a certain place during certain times, this can be monitored by a tag if necessary.
- To stay out of a certain area, postcode or to stay a certain distance from a certain place at all times.
- Surrender of passport.
- Not to apply for international travel documents
- Non contact with named persons, directly or indirectly
- A security- an amount of money paid into Court (for appropriate level of security see Mangouras v Spain )
- A surety- an amount of money that a person holds that will be liable to surrender if the defendant breaches his grant of bail.
But there are many other conditions that can be imposed and it is important to put forward realistic conditions that are also targeted towards the offender or the offending. For example a person who is habitually committing violent offences when drunk can be granted bail subject to not entering licenced premises. A sex offender can be granted bail subject to not having unsupervised access to person below a certain age. A money launderer can be granted bail subject to not engaging in financial transactions over a certain limit.... and so on.
In cases involving serious fraud or money laundering offences bail is often withheld simply because of the headline value of the fraud. In these cases if an application for bail is presented properly and sympathetically and if a suitable package of conditions are offered then the prospects of bail being granted can be good indeed.
There is no correct answer to question of how to get bail in the UK or how to get bail in criminal proceedings but it holds true that there are many cases where a person who should be bail is not.
Merely because bail has been refused bail in the past does not mean that bail cannot be granted in the future. Everyone has the right to at least one bail application in both the Magistrates Court and the Crown Court. Further applications may be made if the defendant can show that there has been a 'change in circumstances'. In practice this is normally relatively easy to demonstrate.
Quentin Hunt has a superb record of attaining bail for clients, often in cases where bail has thought to be hopeless. If you wish to discuss a case where a defendant has been remanded in custody or if you are granted police bail and are worried about being remanded in custody following charge please contact Quentin for expert and informed legal advice.
POSTED: Friday, April 17, 2015