Learning Outcomes
This article explains the concept of conditional bail within the criminal justice system of England and Wales. After reading this article, you should understand the legal basis for imposing conditions on bail, the key grounds justifying such conditions, the types of conditions commonly imposed by courts, and the potential consequences for a defendant who breaches these conditions. This knowledge will help you answer SQE1 questions relating to bail applications.
SQE1 Syllabus
For SQE1, your understanding of conditional bail is essential within the broader context of criminal practice. You will need to be able to apply the principles of the Bail Act 1976 regarding the imposition of conditions. Pay particular attention to:
- the grounds upon which conditions can be imposed (ie, necessity linked to preventing absconding, further offences, or interference with justice);
- common types of bail conditions (eg, residence, curfew, reporting, non-contact);
- the requirement for conditions to be necessary and proportionate;
- the consequences of breaching bail conditions.
Test Your Knowledge
Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.
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Under the Bail Act 1976, on what grounds must the court be satisfied before imposing conditions on bail?
- That the defendant is likely to be found guilty.
- That the conditions are requested by the prosecution.
- That imposing conditions is necessary to prevent certain risks.
- That the defendant agrees to the conditions.
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Which of the following is NOT a common type of bail condition?
- Requirement to reside at a specific address.
- Requirement to attend weekly counselling sessions.
- Requirement to report to a police station.
- Requirement not to contact prosecution witnesses.
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True or false? Breaching a bail condition is a separate criminal offence punishable by imprisonment.
Introduction
When a court considers a bail application, the starting point is the general right to bail under the Bail Act 1976 (BA 1976). However, this right is not absolute. Where the court identifies substantial grounds for believing certain risks exist (such as the defendant failing to surrender, committing further offences, or interfering with witnesses), it may refuse bail altogether. Alternatively, the court may decide that these risks can be managed by granting bail subject to certain conditions. This is known as conditional bail. This article focuses on the principles governing the imposition of conditions on bail.
The Power to Grant Conditional Bail
The power to impose conditions on bail is found in section 3(6) of the BA 1976. This states that a person may be required to comply with conditions if it appears to the court necessary to do so for the purpose of preventing the occurrence of any of the main risks associated with granting bail.
Key Term: Conditional Bail Bail granted subject to specific requirements or restrictions imposed on the defendant to ensure their attendance at court, prevent further offending, or protect the integrity of the justice process.
The court cannot impose conditions arbitrarily. There must be a perceived risk related to one of the exceptions to the right to bail, and the condition imposed must be aimed at mitigating that specific risk.
Grounds for Imposing Conditions
The court must be satisfied that imposing conditions is necessary to prevent the defendant from:
- Failing to surrender to custody (absconding).
- Committing an offence while on bail.
- Interfering with witnesses or otherwise obstructing the course of justice.
Additional grounds under Schedule 1, Part 1, paragraph 8(1) of the BA 1976 include imposing conditions where necessary:
- for the defendant's own protection (or welfare, if a child or young person); or
- to ensure the defendant makes themself available for inquiries or reports to assist the court in sentencing.
The court must have substantial grounds for believing one of these risks exists before imposing conditions. The conditions must also be proportionate to the perceived risk and enforceable.
Common Types of Bail Conditions
Courts have a wide discretion in setting conditions, but certain types are frequently used:
Residence Requirement
The defendant may be required to live and sleep at a specified address. This could be their home address, a relative's address, or approved premises like a bail hostel. This condition helps ensure the police know the defendant's whereabouts and facilitates monitoring (eg, for curfews). It primarily addresses the risk of failing to surrender.
Reporting Condition
The defendant may be required to report to a specific police station at regular intervals (eg, daily, three times a week). This helps monitor the defendant's presence in the jurisdiction and reduces the risk of absconding.
Curfew
A curfew requires the defendant to remain indoors at a specified address between certain hours (eg, 7 pm to 7 am). This condition aims to prevent the defendant from committing further offences, particularly those likely to occur at night. Compliance can be checked by police visits or electronic monitoring (tagging).
Key Term: Curfew A requirement imposed as a bail condition obliging the defendant to remain at a specified address during specified hours.
Exclusion Zone
The defendant may be prohibited from entering a specific geographical area. This could be the area where the alleged offence occurred, where the victim or witnesses live, or an area associated with previous offending (eg, a particular town centre, specific licensed premises). This condition aims to prevent further offences and interference with witnesses.
Non-Contact Condition
This prohibits the defendant from contacting, directly or indirectly, specified individuals, typically the alleged victim(s) or prosecution witnesses. This is essential for preventing interference with witnesses or the course of justice.
Passport Surrender
If there is a significant risk of the defendant fleeing the country, the court may require the surrender of their passport and impose a condition not to apply for new travel documents. This directly addresses the risk of failing to surrender.
Surety and Security
These are financial conditions aimed at ensuring court attendance.
Key Term: Surety A third party who promises to pay the court a specified sum of money (a recognisance) if the defendant fails to surrender to custody. The surety does not pay money upfront but faces forfeiture if the defendant absconds.
Key Term: Security A sum of money or other valuable item deposited with the court by the defendant or a third party, which will be forfeited if the defendant fails to surrender to custody.
Courts must be satisfied that a proposed surety is suitable (eg, has sufficient funds, good character) and that requiring a surety or security is necessary and proportionate.
Electronic Monitoring (Tagging)
This is not a condition in itself but a means of monitoring compliance with other conditions, such as a curfew or an exclusion zone.
Worked Example 1.1
David is charged with assault occasioning actual bodily harm following a fight outside a pub. The victim lives near David. The prosecution objects to bail, fearing David might interfere with the victim or commit further offences if released, noting David has previous convictions for public order offences. David’s solicitor argues that David has strong community ties, a stable job, and offers conditions.
What conditions might the court impose if it decides to grant conditional bail?
Answer: The court might impose conditions aimed at the identified risks. To prevent interference with the victim, a non-contact condition prohibiting any communication with the victim would be appropriate. An exclusion zone condition preventing David from entering the area where the victim lives could also be imposed. To address the risk of further offences, especially given the pub context, a curfew (perhaps electronically monitored) or a condition not to enter licensed premises might be considered. A residence condition at his home address could also be imposed to ensure stability and monitorability.
Breach of Bail Conditions
It is important to understand that breaching a bail condition is not a separate criminal offence in itself (unlike failing to surrender to bail, which is an offence under s 6 BA 1976).
However, if a police officer has reasonable grounds for believing that a defendant has breached, or is likely to breach, any bail condition, they have the power to arrest the defendant without a warrant (s 7(3) BA 1976).
Following arrest, the defendant must be brought before a magistrates’ court as soon as practicable (usually within 24 hours). The court will then consider the alleged breach.
- If the court finds the defendant did breach a condition without reasonable excuse, it may:
- Remand the defendant in custody.
- Grant bail again on the same conditions.
- Grant bail with varied or additional conditions (which may be more stringent).
Revision Tip
Remember the distinction: Failing to surrender to custody IS a criminal offence. Breaching a bail condition (other than the condition to surrender) IS NOT a criminal offence, but can lead to arrest and reconsideration of bail, possibly resulting in custody.
Exam Warning
Do not confuse the grounds for refusing bail (Sch 1, Part 1, para 2 BA 1976) with the grounds for imposing conditions (Sch 1, Part 1, para 8 BA 1976). Conditions can only be imposed if necessary to prevent one of the specified risks. Ensure you apply the correct test in exam scenarios.
Worked Example 1.2
Sarah was granted conditional bail with a requirement to report to her local police station every Monday, Wednesday, and Friday between 9 am and 5 pm. She failed to report on Monday because she forgot. The police arrested her for breach of bail. At court, the prosecution argues she should be remanded in custody as she cannot be trusted to comply. Sarah expresses remorse and explains it was a genuine oversight.
What options does the magistrates’ court have?
Answer: The court must first determine if Sarah breached the condition without reasonable excuse. Forgetting is unlikely to be considered a reasonable excuse. If the breach is established, the court has discretion. Given it's a first breach and seemingly not deliberate avoidance, the court might decide against remanding her in custody. It could release her on bail again with the same conditions, possibly adding a warning about future compliance. Alternatively, it could impose varied or more stringent conditions, perhaps requiring daily reporting for a period to ensure compliance. Remanding her in custody is also an option if the court feels the breach indicates a significant risk (eg, of absconding) that cannot be managed by conditions.
Key Point Checklist
This article has covered the following key knowledge points:
- Conditional bail is granted under the Bail Act 1976 when necessary to mitigate risks associated with releasing a defendant.
- Conditions can only be imposed if the court believes they are necessary to prevent the defendant failing to surrender, committing further offences, interfering with witnesses/justice, or for their own protection/welfare.
- Common conditions include residence requirements, reporting to police, curfews, exclusion zones, non-contact orders, passport surrender, sureties, and security deposits.
- Conditions must be proportionate to the risk identified and enforceable.
- Breaching a bail condition (other than failure to surrender) is not a criminal offence but can lead to arrest and reconsideration of bail, potentially resulting in remand in custody or stricter conditions.
Key Terms and Concepts
- Conditional Bail
- Surety
- Security
- Curfew
