Monday, 1 February 2010

The right to bail: Is it disappearing or being whittled down?

A fundamental element of English criminal law and practice is that the accused is to be considered “innocent until proven guilty” before a court of law. The “presumption of innocence” is the foundation of the now very heavily amended Bail Act 1976. The Act begins with the defendant having a right to unconditional bail but bail may be refused in situations provided for in the Act – e.g. that there are substantial grounds to believe that the defendant would commit further offences.

From 1st February 2010 some further amendments to the Bail Act 1976 have come into force. This commencement order has activated sections 114 and 115 of the Coroners and Justice Act 2009.

Defendant is accused or convicted of an imprisonable offence: When considering whether to grant bail, a court has to consider a number of factors and section 114 has added new factors:

“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 commit an offence while on bail, the risk that the defendant may do so by engaging in conduct that would, or would be likely to, cause physical or mental injury to any person other than the defendant,”

Defendant is charged with murder: Here, section 114 states:

“the defendant may not be granted bail unless the court is of the opinion that there is no significant risk of the defendant committing, while on bail, an offence that would, or would be likely to, cause physical or mental injury to any person other than the defendant.”

Section 115 – “A person charged with murder may not be granted bail except by order of a judge of the Crown Court.” This will apply whether the defendant is charged just with murder or with murder together with other offences.

Hence, the right of the magistrates’ court to grant bail in a murder case has gone. It would appear that where a defendant has a criminal record involving an offence or offences of violence then it will now be far more difficult for him to get bail and, after all, one of the best pointers to a person’s future conduct is their record and the record may be one of the few items of definite information available to the court making the bail decision.

These changes to the law are the government’s reaction to (a) the Weddell case and (b) the case of Peart. It is also worth noting the Swellings case.

Weddell was accused of the murder of his wife. He was bailed by a Crown Court Judge and went on to kill his mother-in-law and then himself.

Peart's was convicted of manslaughter on the basis of diminished responsibility. At the time that he killed Mr Whelan he was on bail, granted by the Crown Court, for burglary.

Swellings appeared before Warrington Magistrates Court charged with assault on a girl. At first bail was refused but later, having pleaded NOT guilty, he was bailed. The case went to the Crown Court where, some months later, Swellings pleaded guilty and was bailed pending sentence. During the evening of the same day, Swellings assaulted a man. A couple of days later, he was re-bailed in absence over assault on girl by Warrington Crown Court but was remanded in custody by Runcorn magistrates for the assault on the man. A further week later, on 10th August 2007, Swellings pleaded guilty at Warrington Magistrates’ Court to the assault on the man but was granted bail pending sentence. The same evening he, with two others, murdered Mr Garry Newlove.

The government’s reaction to these cases has been seen in some quarters as an over-reaction. The existing law was considered to be adequate. The Ministry of Justice consulted over their ideas to amend the law and 30 responses were received including several influential bodies such as Liberty and the Criminal Bar Association.

Liberty said:

"However, as we explain below we do not agree that there is any need for significant change to the current law. It remains unlikely that any person facing a murder charge would be granted bail. The two tragic high profile cases described in the consultation do not by themselves lead to a conclusion that the entire basis for bail determination needs to be overhauled."

See also the Criminal Bar Association Response

Apart from the political need to be seen to be always “tweaking” the criminal law, has this achieved any lessening of a risk that unforeseen will occur?

It is also somewhat difficult to see the rationale for removing the jurisdiction of magistrates to grant bail in a murder case where the bail application is made at the first (and normally only) appearance before the magistrates. However, once the case has been "sent" to the Crown Court then it seems proper that breaches of bail should be determined by the Crown Court and not by magistrates. Grants of bail by magistrates in murder cases were very rare and, even if granted, the right existed for the prosecution to appeal the decision to the Crown Court.

This change could be the portent of further changes to prevent magistrates giving bail in any case which is triable only by the Crown Court. After all, it will now appear to be illogical to continue to allow the magistrates the right to take a bail decision in a case where the defendant is charged not with murder but with, say, attempted murder or conspiracy to murder?

When charged with an an indictable only offence, the defendant makes a brief appearance before the Magistrates who are commanded to “send the case forthwith” to the Crown Court: Crime and Disorder Act 1998 s51. If they cannot even consider bail, as is now the situation in a murder case, then what remaining point is there in this brief appearance before the magistrates? Take them to a Judge and be done with it.


  1. Weddell was granted bail after the judge had read the reports of two psychiatrists to the effect that it was probably safe to grant him bail. It is difficult to see what differance the government's changes would have made.

    Looking at the consultation, the idea of removing magistrates' power to grant bail in murder cases was not even mentioned, it was concerned only with breach matters.

  2. Yes, the consultation looked at the situation of breach of bail in murder cases. It seems right that breaches be dealt with by the Crown Court because these days (since the Crime an Disorder Act 1998 s51) the defendant is "sent" to the Crown Court normally at the very first hearing in the magistrates' court. However, I don't quite see why they removed the right to make a bail application to the magistrates at the first hearing. Perhaps they thought it simpler to just stop magistrates granting bail in any of these cases.

  3. Rather galling for the magistrates - after all it was Crown Court judges who made the debatable decisions in the first place!

    There are rare cases where bail in murder can be completely rational - eg a "mercy killing" where there has been full co-operation with a lengthy police investigation. I can hear defence briefs muttering Article 5, especially if it's the Thursday before the Easter weekend.

    Nor is the statute totally clear whether magistrates can still refuse bail until the PCMH in the majority of cases where it is clearly not a runner. It looks like their only power is to commit for up to 48 (working) hours in every case, which may result in quite a few unnecessary Crown Court hearings.

  4. Benchminder - thanks for this interesting point. As I see it (and I am open to correction) the magistrates may not make ANY determination (whether for or against) about bail. To decide that bail would not be "a runner" would require them to hear the application but there could only be one outcome anyway - i.e. a remand in custody. Such an exercise would be a clear waste of time.

    In practice, since the "sending" procedure came in under the Crime and Disorder Act 1998, I think that the defence generally kept their bail application for the Crown Court anyway.

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