## Introduction

The Bail Act 1976 sets the rules for granting or refusing bail in criminal proceedings in England and Wales. It creates a general right to bail, subject to specified statutory exceptions. Courts decide whether to release a defendant before trial or sentence by assessing the risks of failing to surrender to custody, committing further offences, or interfering with witnesses or the course of justice. Where risks can be managed, the court may grant conditional bail.

Amendments and case law have refined how the Act operates, including restrictions on remand when there is no real prospect of a custodial sentence, and special rules for serious charges such as murder. Human rights considerations, especially Article 5 ECHR (right to liberty), also inform how reasons are given and how discretion is exercised.

This guide explains the core tests, common conditions and offences linked to bail, supported by examples and practical steps you can use in court.

## What You’ll Learn

- The general right to bail under section 4 and how Schedule 1 exceptions apply
- The three main risks that can justify refusal: fail to surrender, further offences, and interference with witnesses or justice
- Typical bail conditions under section 3 and how to argue for (or against) them
- Offences connected to bail, including failure to surrender and breach of conditions
- How reasons must be recorded and how to seek review or appeal
- Key cases shaping practice and human rights considerations
- Practical strategies for defence and prosecution in bail hearings

## Core Concepts

### The general right to bail and statutory exceptions

- Section 4 Bail Act 1976 sets out a general right to bail. In short, the court must grant bail unless one or more exceptions in Schedule 1 are made out.
- Schedule 1 contains different parts for various situations, including:
  - Accused persons before trial in imprisonable cases (Part I)
  - Accused persons before trial in non-imprisonable cases (Part IA)
  - Defendants convicted and awaiting sentence or appeal (Part II)
- The exceptions are not blanket rules. The court must identify which exception applies, assess the evidence, and consider whether conditions could manage the risk instead of refusing bail altogether.
- The Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) introduced the “no real prospect” test. If there is no real prospect of a custodial sentence, remand in custody is generally not appropriate (subject to limited exceptions).
- Murder charges are treated differently. Under section 115 of the Coroners and Justice Act 2009, a person charged with murder may only be granted bail by a Crown Court judge.
- The Human Rights Act 1998 and Article 5 ECHR require a reasoned decision and a proportionate response to risk. Judicial discretion cannot be removed by automatic rules.

### The three main risks (and what the court looks at)

Schedule 1 focuses on whether there are substantial grounds for believing the defendant would:

1. Fail to surrender to custody
2. Commit further offences while on bail
3. Interfere with witnesses or otherwise obstruct the course of justice

When assessing these risks, typical factors include:

- Nature and seriousness of the alleged offence
- Strength of the evidence and the likely sentence if convicted
- The defendant’s character, past record and antecedents
- Community ties (family, housing, employment, education)
- Previous record of complying with bail and any past failures to surrender
- Any history of offending while on bail
- Specific concerns in the case (e.g. risk to a complainant, pressure on witnesses)

The court should deal with concrete risks based on evidence, not assumptions. If a risk exists, the next question is whether suitable conditions could address it.

### Conditions on bail: purpose, types and limits

Section 3 allows the court to impose conditions that are necessary to secure one or more of the following:

- The defendant’s surrender to custody
- That the defendant does not commit further offences while on bail
- That the defendant does not interfere with witnesses or obstruct justice

Conditions must be no more than is needed for those purposes. Common conditions include:

- Residence at a named address (sometimes at approved premises)
- Reporting to a police station on set days
- Non-contact with named individuals (e.g. complainant, co-defendants, witnesses)
- Exclusion zones (e.g. staying away from a street, workplace or school)
- Curfew, with or without electronic monitoring (tagging), subject to statutory provisions
- Surrender of passport and prohibition on applying for travel documents
- Prohibitions tailored to the case (e.g. not to drive, not to use specified devices)
- Surety or security (a financial pledge or deposit to support compliance)

For youths, options include local authority accommodation or remand to youth detention, subject to specialist criteria.

Any condition must be necessary and proportionate. If a lesser condition would manage the risk, the court should prefer that option.

### Procedure, reasons, review and offences linked to bail

- Reasons: Section 5 requires the court to give reasons when refusing bail or imposing conditions and to record the decision. Clear reasons assist future review and ensure compliance with Article 5 ECHR.
- Reconsideration and variation: Bail can be reconsidered where there is a material change in circumstances or fresh information. Either side can apply to vary conditions. If magistrates refuse bail, the defence can make a fresh application to a Crown Court judge.
- Prosecution appeals: Under the Bail (Amendment) Act 1993, the prosecution can, in prescribed cases, appeal against a grant of bail. Courts can impose a short “interim custody” period while the appeal is pursued.
- Failure to surrender: Section 6 creates an offence of failing to surrender to custody at the appointed time without reasonable cause. The court can forfeit sureties and revisit bail decisions.
- Breach and arrest: Under section 7, a defendant can be arrested without warrant if there are reasonable grounds to believe they have breached, or are likely to breach, bail conditions. The court then decides whether to grant bail again, vary conditions, or remand in custody.

## Key Examples or Case Studies

### R v Nottingham Justices, ex parte Davies [1981] QB 38

- Issue: Magistrates refused bail without adequate reasons.
- Takeaway: Courts must give clear reasons for refusing bail or imposing conditions. A bare reference to “seriousness” is not enough. The reasoning should identify the applicable exception(s) and explain why conditions would not manage the risk.

### Caballero v United Kingdom (2000) 30 EHRR 643

- Issue: Automatic refusal of bail for certain categories removed judicial discretion.
- Takeaway: The European Court of Human Rights held that a blanket rule removing the court’s discretion breaches Article 5(3) ECHR. UK law was adjusted to restore judicial discretion. Today, even in serious cases, the court must conduct an individual assessment.

## Practical Applications

For defence practitioners

- Prepare a bail package:
  - Stable residence with confirmation in writing
  - Employment or education details
  - Letters of support from family or community contacts
  - Medical or treatment information (e.g. mental health, substance misuse support)
  - Proposed conditions tailored to the risks (reporting, curfew with tagging, non-contact, exclusion zones, passport surrender)
  - Surety or security details, with the proposed surety present if possible
- Tackle each risk head-on:
  - Fail to surrender: show ties and a track record of compliance; explain past failures if any
  - Further offences: show treatment plans, supervision, or practical restrictions to limit opportunity
  - Interference: propose non-contact conditions and exclusion zones; address how monitoring will work
- Use statutory tools:
  - Point to Schedule 1 and the “no real prospect” test where appropriate
  - If refused by magistrates, consider an application to a Crown Court judge without delay
  - Seek written reasons and a copy of the bail note to support any review or appeal
- Keep conditions realistic:
  - Avoid over-complicated packages that are hard to follow
  - Ensure the defendant understands every condition and the consequences of breach

For prosecutors

- Identify and evidence risks:
  - Provide information on past failures to surrender, offending on bail, intimidation or threats, and likely sentence if convicted
  - Consider whether conditions could manage the risk; propose specific conditions if custody is not necessary
- Use available routes:
  - In qualifying cases, consider a prosecution appeal under the Bail (Amendment) Act 1993
  - If there is a breach, seek arrest under section 7 and invite the court to reconsider bail

For the court

- Apply the scheme step by step:
  - Start from section 4 (general right to bail)
  - Identify the relevant Schedule 1 exception and the evidence for “substantial grounds”
  - Consider whether conditions would manage risk; impose the least restrictive conditions needed
  - Record reasons as required by section 5 and provide written notice
- Keep Article 5 in view:
  - Use proportionate measures
  - Avoid blanket approaches; every case turns on its facts
- Special cases:
  - Murder: only the Crown Court can grant bail
  - Where there is no real prospect of custody, remand is rarely justified

For defendants

- Attend every hearing on time and keep proof of attendance if needed
- Follow each condition exactly; if a problem arises (e.g. illness or transport failure), contact your solicitor and obtain evidence
- If your circumstances change, ask your solicitor about applying to vary conditions rather than risking a breach

## Summary Checklist

- Start with the general right to bail under section 4
- Test any refusal against the Schedule 1 exceptions
- Address the three core risks: surrender, further offences, interference
- Propose necessary and proportionate conditions under section 3
- Record and obtain written reasons under section 5
- Remember LASPO’s “no real prospect” restriction on remand
- Treat murder charges differently: bail only by a Crown Court judge
- Failure to surrender is an offence (section 6); be ready to explain any absence
- Breach powers under section 7 allow arrest and review of bail
- Use the Bail (Amendment) Act 1993 for prosecution appeals where eligible
- Seek review or variation promptly if circumstances change

## Quick Reference

| Topic                 | Provision/Authority       | Key takeaway                                           |
| --------------------- | ------------------------- | ------------------------------------------------------ |
| General right to bail | Bail Act 1976, s.4        | Grant bail unless a Schedule 1 exception applies.      |
| Exceptions to bail    | Bail Act 1976, Schedule 1 | Assess risks; consider conditions before refusing.     |
| Bail conditions       | Bail Act 1976, s.3        | Conditions must be necessary and proportionate.        |
| Reasons for decision  | Bail Act 1976, s.5        | Give and record reasons; provide written notice.       |
| Failure to surrender  | Bail Act 1976, s.6        | Offence unless reasonable cause; sureties may be lost. |


Bail Act 1976: Key Rules, Conditions and Cases