Learning Outcomes
This article outlines the procedures for making subsequent bail applications following an initial refusal, varying existing bail conditions, and appealing bail decisions. After reading this article, you should understand the criteria governing further bail applications, the process for applying to vary conditions, and the avenues available to both the defence and prosecution for appealing bail decisions made by the magistrates' court or the Crown Court. This knowledge is essential for advising clients and managing the bail process effectively in preparation for SQE1 assessments.
SQE1 Syllabus
For SQE1, you are required to understand the procedures and principles surrounding bail applications beyond the initial hearing. Your understanding of further applications, variations, and appeals is essential for advising clients appropriately.
Pay particular attention in your revision to:
- the grounds upon which a further bail application can be made after an initial refusal
- the procedure for applying to vary bail conditions, including who can apply and on what basis
- the routes of appeal available to the defence against a refusal of bail
- the limited circumstances in which the prosecution can appeal against a grant of bail
- the relevant courts involved in hearing bail appeals.
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.
- True or False: A defendant can make unlimited bail applications to the magistrates' court on the same grounds.
- Which court typically hears a defence appeal against a refusal of bail by the magistrates' court? a) High Court (Divisional Court) b) Crown Court c) Court of Appeal (Criminal Division) d) Supreme Court
- Can the prosecution appeal against a decision by the magistrates' court to grant bail? If so, under what circumstances?
Introduction
Following an initial bail decision, circumstances may change, or parties may wish to challenge the outcome. The criminal justice system provides mechanisms for defendants to make further applications for bail if initially refused, for bail conditions to be varied if they become inappropriate or unworkable, and for both the defence and prosecution to appeal decisions regarding bail. Understanding these procedures is critical for advising clients effectively throughout the pre-trial process. This article explores these subsequent stages in bail proceedings.
Further Applications for Bail
A defendant who is refused bail at their first hearing does not necessarily remain in custody until trial. The court must consider bail at each subsequent hearing where the defendant appears before the court and remains an unconvicted prisoner. However, the rules governing further applications differ depending on whether it is the first hearing after the initial refusal or a later hearing.
First Hearing After Refusal
At the first hearing following the initial refusal of bail, the defendant is entitled to make a further full argument in support of their bail application. This means the defence advocate can present any arguments of fact or law they wish, regardless of whether these arguments were raised at the initial hearing. The court must consider this application fully.
Key Term: Further Full Argument A subsequent bail application where the defence can present any arguments of fact or law, even those previously considered by the court at the initial bail hearing. This right applies only at the first hearing after bail was initially refused.
If bail is refused after this further full argument, the magistrates' court must issue a certificate of full argument. This document confirms that the court has heard full arguments on two occasions and is necessary if the defendant wishes to appeal the decision to the Crown Court.
Key Term: Certificate of Full Argument A certificate issued by the magistrates’ court confirming that it has heard full arguments on bail on two occasions (the initial hearing and the first hearing after refusal) before refusing bail. It is required for an appeal to the Crown Court.
Subsequent Hearings
At any hearing after the first hearing following the initial refusal, the court is not obliged to hear arguments it has previously heard (Bail Act 1976, Sch 1, Pt IIA, para 2). The defendant can only make a further application if they can present new arguments or demonstrate a change in circumstances relevant to the bail decision.
Key Term: Change in Circumstances A new factor or development relevant to the bail decision that has arisen since the last full bail application was heard. Examples include a change in address, offer of a surety, or significant weakening of the prosecution case.
Worked Example 1.1
David is charged with theft (an either-way offence) and is refused bail at his first appearance on 1st June due to having no fixed address and previous convictions for failing to surrender. He is remanded in custody. At his next hearing on 8th June, his solicitor makes a full bail application, again arguing that the prosecution objections are not made out. Bail is refused. At the following hearing on 15th June, David’s sister offers to provide him with a stable address and act as a surety.
Can David’s solicitor make another bail application on 15th June?
Answer: Yes. Although the court has heard full arguments twice (on 1st and 8th June), the offer of a stable address and a surety represents a significant change in circumstances. Therefore, the solicitor can make a further application based on these new factors, arguing they address the court's previous concerns about failing to surrender.
Exam Warning
Be clear about the distinction between the first hearing after refusal (where full arguments can be repeated) and subsequent hearings (where new arguments or a change in circumstances are required). Questions may test your understanding of when a further application is permissible.
Variation of Bail Conditions
Circumstances can change for a defendant granted bail, making previously imposed conditions impractical or unnecessary. Section 3(8) of the Bail Act 1976 allows the court that granted bail (or the court to which the defendant is subsequently bailed to appear) to vary or impose conditions on application by either the defendant or the prosecution, or on its own motion.
The police also have a limited power to vary bail conditions imposed by the police before the first court hearing (PACE 1984, s 47(1E)), but court-imposed conditions can only be varied by a court.
Grounds for Variation
An application to vary conditions must demonstrate why the change is necessary or appropriate. Common reasons include:
- A change in the defendant's circumstances (e.g., new job requiring different curfew hours).
- Evidence that the original condition is no longer necessary to manage the perceived risks (e.g., a witness intimidation concern is removed because the witness has testified).
- A condition proving unworkable or excessively onerous.
The prosecution might apply to vary conditions (e.g., impose stricter ones) if new information suggests an increased risk, such as evidence of the defendant attempting to contact witnesses.
Procedure for Variation
An application to vary conditions is usually made in writing to the court, notifying the other party. The court may decide the application on the papers or list it for a hearing. The party applying will need to persuade the court that the variation is justified based on the relevant factors.
Worked Example 1.2
Aisha is granted conditional bail with a nightly curfew from 7 pm to 7 am. She subsequently receives a job offer requiring her to work shifts ending at 10 pm.
What should Aisha’s solicitor do?
Answer: Aisha’s solicitor should apply to the court under s 3(8) Bail Act 1976 to vary the curfew condition. They should provide evidence of the job offer and explain why the current curfew prevents Aisha from taking up employment, arguing that a later start time for the curfew (e.g., 11 pm) would still be sufficient to manage any perceived risks while allowing her to work.
Appeals Against Bail Decisions
Both the defence and the prosecution have limited rights to appeal bail decisions made by the magistrates' court or the Crown Court.
Defence Appeals
If the magistrates' court refuses bail after hearing full argument (evidenced by the Certificate of Full Argument), the defendant can appeal to the Crown Court (Senior Courts Act 1981, s 81(1)(g)).
- Procedure: An application notice must be served on the Crown Court, magistrates' court, and prosecution, usually within 24 hours.
- Hearing: The appeal is a rehearing before a Crown Court judge in chambers (not open court). The judge considers the application afresh.
- Outcome: The judge can grant bail (conditionally or unconditionally) or refuse it.
A defendant refused bail by the Crown Court (either at first instance for an indictable-only offence or following an appeal from the magistrates) may apply to the High Court, but this is rare.
Prosecution Appeals
The prosecution has a limited right to appeal against a decision to grant bail under the Bail (Amendment) Act 1993. This applies only if the defendant is charged with an offence punishable by imprisonment.
- Procedure:
- The prosecution must give oral notice of appeal immediately after the magistrates grant bail.
- Written notice must follow within two hours.
- The defendant remains in custody pending the appeal.
- The appeal is heard by a Crown Court judge in chambers, usually within 48 hours (excluding weekends/bank holidays).
- Grounds: The prosecution argues the magistrates' decision was wrong based on the exceptions to bail (e.g., substantial grounds to believe the defendant would abscond, reoffend, or interfere with witnesses).
- Outcome: The judge can uphold the magistrates' decision (granting bail) or overturn it (refusing bail).
The prosecution cannot appeal a Crown Court decision to grant bail unless that decision was made following a defence appeal from the magistrates' court.
Worked Example 1.3
The magistrates grant bail to Ben, charged with burglary (an imprisonable, either-way offence). The prosecution strongly opposed bail, citing Ben's previous convictions for similar offences committed whilst on bail. The prosecutor believes the decision is wrong.
What immediate step must the prosecutor take if they wish to appeal?
Answer: The prosecutor must immediately give oral notice to the magistrates' court, before Ben is released, that they intend to appeal the decision to grant bail under the Bail (Amendment) Act 1993. They must then follow this up with written notice within two hours.
Key Point Checklist
This article has covered the following key knowledge points:
- A defendant is entitled to make one further full bail application in the magistrates' court at the first hearing after bail is initially refused.
- Subsequent applications in the magistrates' court require new arguments or a change in circumstances.
- A Certificate of Full Argument is needed for a defence appeal to the Crown Court against magistrates' refusal of bail.
- Bail conditions can be varied by the court on application by either party or on the court's own initiative if circumstances change or the condition is no longer necessary/appropriate.
- The defence can appeal a magistrates' bail refusal to a Crown Court judge in chambers.
- The prosecution can appeal a magistrates' decision to grant bail (for imprisonable offences) to a Crown Court judge in chambers, provided immediate oral notice is given.
Key Terms and Concepts
- Further Full Argument
- Certificate of Full Argument
- Change in Circumstances
