The Magistrate's Blog (2005-2012)

This blog has migrated to www.magistratesblog.blogspot.co.uk This blog is anonymous, and Bystander's views are his and his alone. Where his views differ from the letter of the law, he will enforce the letter of the law because that is what he has sworn to do. If you think that you can identify a particular case from one of the posts you are wrong. Enough facts are changed to preserve the truth of the tale but to disguise its exact source.

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Location: Near London, United Kingdom

The blog is written by a retired JP, with over 30 years' experience on the Bench.

Monday, February 21, 2005


Bail is one of the least understood aspects of the criminal law. People find it hard to understand how the police can go to all the trouble of catching someone, only for the court to release them on bail. The answer lies in the Bail Act. I am not a lawyer, and there is no point in going into the myriad tweaks and angles of bail, but the bottom line is simple. A person has a right to bail unless there are substantial grounds to fear that he will fail to surrender to the court, commit further offences, or interfere with witnesses. There are other exceptions but those three cover the vast majority of cases. The court (and for bail purposes it can be just one magistrate) has to give reasons if unconditional bail is refused. These might include previous bail record (has reoffended or failed to turn up in the past) the fact that he faces a lengthy prison sentence and therefore has a motive to abscond, the fact that he has no fixed abode or the fact that the victim is scared stiff of him and lives two doors away. So we look at possible conditions. Can we order him to live with someone else, at a safe distance from the victim? How about an order not to go to the victim's home town? If he is NFA can Probation find him a place in a Bail Hostel? Should he surrender his passport? If he is a night-time burglar will a curfew be appropriate?
A surety (promise from a third party to pay) or a security (cash down) might be offered.

In coming to a decision the court has to take the Crown's case at its highest, and listen to defence submissions.

If none of these fit the bill, then a remand in custody is probably inevitable. Lawyers are allowed two full bail applications, then an appeal to a judge at the Crown Court, any of which might get their man out. For the most serious offences up at the murder and rape level the court must give reasons if it does grant bail. It happens though. A notorious property developer was recently on bail throughout his trial for murder.

If there is a breach of bail the court will probably issue a no-bail warrant for the arrest of the defendant. Bad news there, because in future a custody Sergeant looking at the screen and seeing a conviction for Failing to Surrender will probably not bail the def, but hold him in the cells until the next court.

If someone is held on remand and then acquitted, he has been imprisoned, in effect, for nothing. Plenty of people serve longer on remand than their eventual sentence. On the other hand, if someone who is bailed goes out and reoffends, his victim will wonder what the hell the court was doing letting him out at all.

Bail can be a difficult decision, trying to balance all of these factors. A sensible policeman, who feels strongly about a case and who knows all of its details will try to be in court when bail is considered and to back up the prosecutor if necessary.

With bail, above all, you can't please everybody.