Bail and Remand: Why Some Defendants Walk Free Before Trial

Few aspects of the criminal justice system generate more public frustration than bail. A defendant charged with something serious appears in court, and days later is seen walking down the street.

The reaction is understandable. The reasoning behind such decisions, though, follows a defined statutory framework rather than judicial whim, and it rests on a principle that predates any of us.

Here is how bail and remand actually work, and why the answer is rarely as simple as the offence involved.

There is a presumption in favour of bail.

The starting point in English law is that a defendant is presumed innocent until proven guilty. From that flows a general presumption in favour of bail, set out in the Bail Act 1976.

Detaining someone who has not been convicted is a serious step. It deprives a person of liberty before any finding of guilt, and in some cases before the evidence has been properly tested.

The presumption is not absolute. It can be displaced where the court is satisfied one of a defined set of grounds applies, and those grounds are the heart of every contested bail application.

The grounds for refusing bail are specific.

The principal grounds are that there are substantial grounds for believing the defendant would fail to surrender to custody, would commit further offences while on bail, or would interfere with witnesses or otherwise obstruct the course of justice.

Bail may also be refused for the defendant's own protection, or where the court has insufficient information to make a decision, or where the defendant is already serving a custodial sentence.

In assessing these, courts consider the nature and seriousness of the offence, the strength of the evidence, the defendant's character and previous record, their community ties, and their history of complying with bail in the past.

Conditions are a middle path.

Bail is frequently granted with conditions attached, which is the option that generates the least publicity and does most of the work.

Common conditions include residence at a specified address, a curfew sometimes monitored electronically, reporting to a police station at set times, surrender of a passport, exclusion from a defined area, and prohibitions on contacting named individuals.

A surety may also be required, where a third party promises a sum of money that can be forfeited if the defendant fails to attend. A security is different again, involving money or valuables lodged with the court.

Conditions must be necessary and proportionate to the risk identified. A court cannot simply impose restrictions because they seem sensible.

Remand means custody before conviction.

Where bail is refused, the defendant is remanded in custody and held in prison awaiting trial or sentence. They have not been convicted, and remand prisoners are subject to a different regime from sentenced prisoners.

Custody time limits apply, restricting how long a defendant can be held on remand before trial without an extension being granted by the court.

Long-standing pressure on court listing has made these limits a live issue nationally, since delays can leave unconvicted people held for extended periods. Time spent on remand counts towards any eventual custodial sentence.

Police bail works differently.

Bail before charge is a separate process. When police release someone during an investigation, they may do so on bail with conditions, or release them under investigation without conditions.

The balance between the two has shifted through successive legislative changes, driven by concern that release under investigation left victims without the protection that bail conditions can provide.

Pre-charge bail operates to defined time limits with a defined authorisation process for extensions. Anyone in this position should take legal advice, since the practical implications, particularly conditions restricting contact or residence, can be significant.

Breaching bail is itself an offence in some circumstances.

Failing to surrender to custody without reasonable cause is a criminal offence carrying its own penalty, separate from the original matter.

Breaching a condition is not automatically a separate offence, but it can lead to arrest and to bail being reconsidered and withdrawn. In practice, a defendant who breaches conditions substantially increases the likelihood of being remanded.

Courts do take breaches seriously precisely because the credibility of the whole system depends on conditions meaning something.

There are exceptions for the most serious cases.

For certain very serious offences, including murder, rape and manslaughter, restrictions apply where the defendant has a previous conviction for a similar offence. In such cases bail can only be granted in exceptional circumstances.

Murder cases carry a particular rule: bail can only be granted by a Crown Court judge, not by magistrates.

These provisions reflect a legislative judgement that the risk in such cases justifies departing from the ordinary presumption.

Decisions can be reviewed and appealed.

A defendant refused bail can apply again, and after the first two applications must generally show a change of circumstances or a new argument.

The prosecution can also appeal against a decision to grant bail in certain cases, which means a defendant granted bail is not always released immediately.

None of this makes bail decisions comfortable to read about when they go wrong. It does mean they are made against a framework that tries to weigh liberty before conviction against genuine risk to the public, which is among the harder balances any court is asked to strike.

Share your thoughts.

Do you think the presumption in favour of bail strikes the right balance?