Saturday, 23 February 2013

The question of Bail ~ Oscar Pistorius ~ Operation Weeting

Given the Oscar Pistorius case in South Africa and, in England, the on-going Operation Weeting, bail is well and truly in the news.

Oscar Pistorius:

The world famous paralympian Oscar Pistorius stands charged in South Africa with the murder (on 14th February) of his girl friend Reeva Steenkamp.  After a 4 day hearing, a Magistrate granted Pistorius bail on a number of conditions - see CNN News 22nd February 2013   At times, the bail hearing appeared to be almost like a mini-trial of the case itself.  It appears that the prosecution and defence agree that shots fired by Pistorius killed Miss Steenkamp but Pistorius says that he thought he was firing at an intruder.  For those interested in the South African judicial process, see World Criminal Justice Library Network.  An interesting article is The Independent 22nd February - The Pistorius case casts a lurid light on a corrupt and crime-ridden South Africa.

Operation Weeting ~ Phone hacking:

Operation Weeting is the investigation
by the Metropolitan Police into allegations of 'phone-hacking' by journalists.  The investigation has been underway for just over 2 years having commenced on 26th January 2011.  A considerable number of arrests have been made and suspects placed on 'Police bail' for very lengthy periods prior to the Crown Prosecution Service deciding whether to actually bring charges. Certain 'charging decisions' were taken in July 2012 - CPS.  Mr Neil Wallis, formerly deputy editor of the News of the World, has just been informed that he is not to be charged after spending 21 months on Police bail.  Mr Wallis described that period of time as 'hell for his family.'  See CPS 22nd February 2013.

Keeping individuals on bail for very lengthy periods prior to charge appears to be an undesirable feature of the modern criminal justice process.  It seems that the famous declaration of Magna Carta - to no one will we sell, to no one will we refuse or delay, right or justice - is nowadays more honoured in the breach than the observance.  The late Tony Hancock would perhaps think that Magna Carta did die in vain!

An outline of the law on bail:

If a person is arrested for an imprisonable offence, what is the law relating to bail?  The following is a basic outline only of the convoluted law in this area.

The power of the Police to place a suspect on conditional bail is quite a recent innovation.  It arrived with the Criminal Justice and Public Order Act 1994 Part 2. See, in particular, section 27 which amended the Police and Criminal Evidence Act 1984 s.47.  Even a brief glance at PACE section 47 is more then sufficient to highlight the complexity of the law given the numerous 'cut and paste style' amendments which have taken place.  This does little credit to the law.  The CPS website helps to explain the situation - CPS Bail.   Once a suspect - let's call him D - is charged, he will appear at the Magistrates' Court.  At this stage, D will either be held in custody or he will be on bail.  If on bail, he might be on either bail with conditions or on unconditional bail.

At one time, the Magistrates' Courts conducted 'committal hearings' for all cases where trial would take place in the Crown Court.  For offences triable ONLY in the Crown Court (i.e. indictable only offences such as murder, rape etc), committal proceedings were replaced by a 'sending' procedure set out in the Crime and Disorder Act 1998 s.51.  In very serious cases, these short hearings before Magistrates often attract considerable publicity.   Committal proceedings are now being phased out for all offences making their way to Crown Court - Ministry of Justice 5th November 2012. The power to replace committal proceedings for 'either-way' offences is in the Criminal Justice Act 2003 s.41 and Schedule 3 which deals with allocation of cases and sending to the Crown Court.

The law on bail is in the Bail Act 1976.  Here is yet another example of complex legislation, heavily amended by the usual cut and paste method.

Basically, D starts with an entitlement to unconditional bail - Bail Act 1976 section 4.  This entitlement to unconditional bail may be lost if one or more of the exceptions in Schedule 1 Part 1 of the Bail Act applies.  Matters such as substantial grounds to believe that if granted bail D would fail to surrender or commit an offence or interfere with witnesses are among the grounds for refusal of bail.  

When considering whether any of the exceptions to bail applies, the court must consider various specified matters set out in the Bail Act 1976 Schedule 1 Part 1 para. 9 - including:

(a) the nature and seriousness of the offence or default (and the probable method of dealing with the defendant for it),

(b) the character, antecedents, associations and community ties of the defendant,

(c) the defendant’s record as respects the fulfilment of his obligations under previous grants of bail in criminal proceedings,

(d) except in the case of a defendant whose case is adjourned for inquiries or a report, the strength of the evidence of his having committed the offence or having defaulted ....

If the court concludes that there are substantial grounds to believe that one or more of the exceptions applies then the further question is whether the concerns can be met with conditions (conditional bail) or whether a remand into custody is required.

Where a court is considering whether to grant bail, the hearing will be nothing like the Pistorius hearing in South Africa.  A bail hearing is not a mini-trial.  The court will consider only the risks which D might present if granted bail.  In cases where D has a considerable criminal record, including perhaps a history of failure to surrender and/or committing offences when on bail then this will count against him on any bail application.

Note: The Bail Act 1976 has been further amended by the Legal Aid, Sentencing and Punishment of Offenders Act 2012 section 90 / Schedule 11 - (the amendments came into force on 3rd December 2012)

Bail in murder cases:

The law about bail in murder cases was amended by the Coroners and Justice Act 2009 sections 114 and 115 - (in force 1st February 2010).  Where a person is charged with murder, section 115 provides that bail can only be granted on the order of a judge of the Crown Court.   Section 115 applies to murder only.  It does not apply to attempted murder or conspiracy to murder. The power of magistrates to consider bail in murder cases, whether at first hearing or after a breach of an existing bail condition, was removed.

In murder cases, the Coroners and Justice Act 2009 added a further exception to the right to bail.  It is that bail may not be granted to someone charged with murder unless the court is of the opinion that there is no significant risk that, if released on bail, that person would commit an offence that would be likely to cause physical or mental injury to another person. 

Sufficient has been said in this post to bring out some of the problems as well as the complexity of the law - (not helped by convoluted, heavily amended legislation).  The law's complexity is a matter for serious concern particularly at a time when representation for accused persons has become more problematic especially in the earlier stages of cases.


  1. May I add that in England and Wales a court considering bail will normally "take the prosecution case at its highest". It is this principle that avoids bail hearings of the nature of the one that has just been held for Oscar Pistorius. The only circumstance in which one might want to point to the weaknesses of the prosecution case is in support of an argument that the case may well end in an acquittal, and that therefore the defendant has strong grounds for attending his trial.

    On another note, I remain perplexed that bail in murder cases is reserved to the Crown Court (something that causes considerable inconvenience over holiday periods, when these courts are usually shut) and yet a magistrates' court has power to grant bail to those charged with attempted murder. Since in the latter case the prosecution must be alleging an intent to kill (not necessary for murder), and the defendant has (if the Crown is right) started but not finished the job, then surely the risks involved here are greater than for the alleged murderer, who may have disposed of the only person who was causing him grief?

    1. The strength of the evidence against D is a factor - as mentioned in the post above. The bail decision hearing would not embark on an extensive analysis of the evidence however.

      A Magistrates Court is empowered to grant bail on any offence apart from Treason and (now) murder. This reform was brought about by Jack Straw who, at the time, wanted nobody charged with murder to ever be granted bail. (A similar 'no bail' provision in the Criminal Justice and Public Order Act 1994 fell foul of the European Convention on Human Rights). He was under some pressure as a result of the Gary Weddell case. Interestingly, in that case it was a Crown Court Judge who granted Weddell bail !

      I think that, in reality, there was no need to remove the power to grant bail in murder cases from Magistrates Courts. In practice, any applications would have been almost certain to have been listed before a District Judge (MC) and, if thought appropriate, legislation could have been enacted to require that. Resaons had to be given for a grant of bail in a murder case (or manslaughter or rape or for attempted murder or rape). There was also the prosecution's right of appeal against a grant of bail: Bail (Amendment) Act 1993.

    2. A further case which led to media furore was the Adam Swellings bail case. Swellings had a very poor record for disregard of court orders and, when on bail, he murdered Gary Newlove. Magistrates had released Swellings on bail in relation to matters other than murder and, when on that bail, Swellings (and some others) attacked Mr Newlove. The Guardian.

  2. Bail: don't forget LASPO as well!

    1. Section 90 of LASPO amends the Bail Act 1976 and the Bail (Amendment) Act 1993, introducing important changes in this area. The legislation introduces the “no real prospect test”, which serves to restrict the courts’ power to remand an adult defendant who has not yet been convicted into custody where it appears that there is no real prospect that the defendant would receive a custodial sentence if convicted. The test also applies to offenders who have been released on bail and who then fail to surrender. (There is a similar restriction to remand those under 18 to youth detention accommodation.)

      There is also the insertion of a new exception to the right to bail where an offender who has been released on bail may commit an offence involving domestic violence. This provision is not subject to the “no real prospect” test and may be applied in cases of non-imprisonable offences.

      The Bail (Amendment) Act 1993 is amended to allow the prosecution to appeal to the High Court a decision of a Crown Court Judge to grant bail to an individual charged with or convicted of an imprisonable offence. This route of appeal is not available when the Crown Court has seen fit to grant bail on appeal from the magistrates’ court.

  3. I remember sitting (as a JP) on the first hearing of a murder when we could still grant bail. The defendant and the deceased were both of Sri Lankan origin; and so were some twenty men in the public gallery. We heard that there would be an application for bail, but when the defendant was brought up from the cells and looked round, he summoned his counsel; there was a hasty whisper; and no application for bail. I think he felt safer where he was!

    Anonymous: a defendant charged with murder must be brought before the Crown Court on the next working day but one, and if that means opening a building and calling in a judge from his holidays - it must be done, regardless of expense.

    The same applies to prosecution appeals against the grant of bail - one reason why they are so rare?

    Another reminiscence: I was in the chair at 10.37 on a Saturday when we granted bail. The prosecutor gave verbal notice of appeal and then had two hours to give written notice - but she would need authority from On High at CPS; nobody lowly enough to be prosecuting an ordinary list can give written notice without approval. I explained the two hour rule to the defendant and added "and it is now 10.37 by the clock in this courtroom. Up gets the prosecutor: "Can we call in a quarter to eleven, Sir?"

    "No, because it is not 10.45. Two hours means two hours."

    In the event at 12.35 she said she had not been able to get instructions (and I had offered to let her keep her phone on in court) - and tried to re-open the original decision to grant bail. Vigorous protests from defence counsel who remarked elegantly "There are a number of grounds for withholding bail and the administrative inadequacy of the CPS is not one of them."

    We refused to allow her to argue it again and directed the Defendant's release - one of the few occasions when an advocate's face and body language showed real anger. I regarded her original request for extra time as disrespectful to the Bench and a gross breach of the defendant's rights. I thought then and think now that if we had given her extra time - and even more so if we had refused bail after time was up - that would have constituted false imprisonment in domestic and ECHR terms.

    1. Ed (not Bystander)4 March 2013 at 01:48

      8 minutes? De minimis non curat lex, dear boy.