Bail in the United Kingdom is the practice of releasing individuals from police custody or from remand subject to certain conditions which are designed to enable criminal justice outcomes, primarily trials and police investigations, to be completed efficiently and effectively. The right to bail is guaranteed in a wide range of contexts but is not absolute. The legal systems of England and Wales, Northern Ireland and of Scotland each deal with bail in similar but distinct ways. Bail can be granted by the courts, the police and certain other criminal justice authorities including the Serious Fraud Office (SFO) and Financial Conduct Authority (FCA).
Bail in this context is distinct from the bail bonds system applied in the United States, and the approaches of the two systems differ markedly. The United Kingdom's approach to bail is more comparable to other common law jurisdictions including Canada, Australia, New Zealand and a number of Commonwealth nations, and British Overseas Territories to which English law applies directly.
Immigration bail refers to the practice of releasing individuals from immigration detention subject to conditions. It is a separate system from that of criminal offences bail. Unlike with bail in criminal offences, immigration bail does not necessarily occur because of a suspicion that the person has acted unlawfully, though this may be a reason for detention. It is common for government officials or law enforcement agents to make immigration bail decisions on behalf of the Secretary of State. The First Tier Tribunal (Immigration and Asylum Chamber) may also make immigration bail decisions.
History
In England and Wales The concept of using a monetary debt to ensure individual compliance with the justice system was developed in a decentralised manner across Anglo-Saxon communities in Great Britain. This system became increasingly centralised and legalised after the Norman Conquest. Strong statutory principles limiting the extent, nature and procedure for setting bail occurred in the 17th century during the English Civil War period. These are thought to have heavily influenced the nascent bail principles of the United States, including the Eighth Amendment to the United States Constitution.
Bail in the Anglo-Saxon era
In Anglo-Saxon England, violence and feuding were a real and socially destabilising route used to correct actual or perceived wrongs. These approaches were originally incorporated into the primitive legal system via the process of outlawing and 'hue and cry' communal vigilantism. Over time, localised justice was increasingly stripped of violence through the system of 'bots', private payments to compensate grievances, and 'wites', payments to the monarch. As wrongdoing was essentially still a private affair, a value payment was a simple, non-violent solution. As prisons were not a functional system for holding individuals securely at the time, fleeing to avoid justice was a systemic risk. To combat this risk alleged wrongdoers were allowed to pay 'bail', at the exact equivalent value of their bot, in exchange for going free until the date of trial.F. Pollock & F. Maitland (1898), The History of English Law (2nd ed.) Some crimes, however, remained so serious that only custody was appropriate.
Bail in the medieval era
After the Norman conquest of England, three practical pressures on the state influenced a more complex bail system: fear of corporal punishment, a poor prison system and a slow trial process. As criminal justice was increasingly centralised, the state became responsible for holding alleged wrongdoers until trial. Jails were unsanitary and dangerous places, inadequate to be widely used. At the same time the increased use of corporal punishment encouraged individuals to flee before trial. This use of corporal punishment has been linked by Cabrone to the spiralling increase in bail securities and sureties. In the original bot system a security was equal to the estimated value of the wrong. By the medieval era however, fear of the punishment after conviction had become so great that people were willing to abandon their securities to avoid the physical violence meted out by the courts. As a result these sums had to be increased so as to reduce the incentive to escape justice.
In order to limit escape without the use of jails, sheriffs were given powers under royal authority to hold wrongdoers in their jurisdiction until the travelling judges of the circuit courts came to the area. The sheriffs used the bail bond system to control unimprisoned defendants awaiting trial, but in doing so corruption became widespread. In response Parliament passed the first Statute of Westminster (1275), setting three governing principles for bail in statute. First, the nature of the offence established whether or not bail was a possibility. It was now a statutory principle that some crimes were not suitable for release on bail. Second, the likelihood of conviction had to be considered – if a person was under 'light suspicion' they were more likely to be granted bail. Third, the criminal history or bad character of the defendant, known as 'ill-fame', was considered. Bad character suggested a person was less likely to follow the bail requirements and return to stand trial. However, problems of corruption remained and were exacerbated by a growing confusion about the exact meaning of 'light suspicion' and 'ill-fame'. As a result, clarifying amendments were made to these bail principles in 1486, requiring two justices of the peace to assess the likelihood of conviction, and in 1554, requiring the justices' decision be made in an open hearing and recorded in writing.
Bail in the 17th century
The English Civil War then had its impact on the law of bail. King Charles I imprisoned five landowners without charge (Five Knights' Case), exploiting a loophole in the Statute of Westminster 1275 that required the recital of a formal charge to arrange bail. The knights were refused release under the principles of Magna Carta, as the court found that the prerogative of the king to imprison subjects could not be overridden by the common law. Parliament was unhappy with the substantive legal outcome, but the circumstances around how this precedent was set may also have riled contemporary onlookers. Many historians have suggested that Charles I conspired with the Attorney General Robert Heath to manipulate the outcome so as to bolster his power to raise funds, independent of Parliament, using fear of arbitrary imprisonment.This range of opinion is well outlined by Mark Kishlansky in
As a peremptory response, Parliament passed the Petition of Right in 1628. This prohibited a person from being held in custody without being charged, among a range of other limitations it tried to place on royal power. Combatting another loophole in the system, the Habeas Corpus Act 1679 was introduced to stop excessively long delays between custody and bail hearings. The Act makes clear the duty on sheriffs and other law officers to produce prisoners for trial hastily.
The Bill of Rights 1689, made law at the accession of William of Orange and Mary II to the British throne, later introduced a principle of proportionality to bail by stating that "excessive bail ought not be required". This appears to have been the precursor of the Eighth Amendment to the United States Constitution.
Bail in the Victorian era
The last major shift in bail legislation before the modern system was the Bail Act 1898. This allowed for justices of the peace to dispense with sureties in situations where they judged that requiring payments for bail would inhibit the course of justice, largely because this meant that many poorer criminals would languish in jail for petty crimes just because they could not afford bail. The Act appears to have had significant effect, despite contemporary criticism in Parliament, as the number of people released on bail before trial had increased to 25% by 1904.
Debates around the nature and application of bail remained, and are still, contentious. In 1963, over half the prisoners remanded to custody instead of being bailed before trial were ultimately not given a custodial sentence after conviction. This led to significant questions being asked about the quality of the English bail process at that time. Nonetheless, it appears that by the 1960s the 1898 Act had achieved its goal, as Home Office researchHome Office Research Unit Report, "Time Spent Awaiting Trial" (London, 1960) found that the number of prisoners in custody due to a lack of funds for bail was very low.
Bail in modern England and Wales
In the modern English bail system monetary payments play a very small role. Securities and sureties can be taken as conditions for being granted bail, but these amounts are not excessive. Wider restrictions such as curfews, electronic monitoring, presenting at a police station, and limits on meeting specific people or going to specific places are more common conditions.
The Bail Act 1976 was enacted with the aims of creating more conditions by which defendants could be denied bail and also redefining the parameters of fulfilling bail. The 1976 Act also nullified the recognizance system, removing the requirement of paying a specific amount of money and instead arresting defendants for failing to surrender.
England and Wales
The main legislation relating to modern English bail are the Bail Act 1976 and the Police and Criminal Evidence Act 1984 (PACE). Both Acts have been heavily amended by more recent legislation. Their division represents the major distinction in bail: bail issued by the police (or other law enforcement agencies) before charge and bail issued by a court after charge. PACE bail is subject to the standards set in s3, 3A, 5 and 5A of the Bail Act 1976. The qualified right to bail established by s4 Bail Act 1976 is subject both to exceptions and exclusions discussed below.
Right to bail
The Bail Act 1976 created a qualified right to be granted bail before conviction, except for when certain factors apply. This does not guarantee a person will get bail, but it places the onus on the prosecution to demonstrate why bail should be refused in preference to custody:
Section 4 is not explicitly incorporated into the provisions affecting police bail; however, the individual parts of PACE, notably ss. 34 and 37, incorporate the principle in substance if not form.
There are two types of bail: conditional and unconditional. Unconditional bail means that the only requirement attached to the bail is to attend a court at a specified date and time. Conditional bail will attach further requirements to a person's bail designed to reduce their likelihood of committing further crimes, interfering with an investigation or absconding. This may be done by the police or a court. Police bail is more limited than court-imposed bail.
Failure to meet bail conditions, including the requirement to attend court which applies in 'unconditional bail' cases, may result in a warrant being issued by the court for the bailee's arrest.
Exceptions to the right to bail
The modern law retains some of the historic exceptions to the right to bail.
Section 25(2) of the Criminal Justice and Public Order Act 1994 establishes that the right to bail is excluded in cases of murder, attempted murder, rape and certain sexual offences where the defendant has already been convicted of one or more of those offences. Bail may still be granted in these cases, but only in exceptional circumstances. This is as opposed to most offences, where there is a presumption that bail will apply unless there are particular reasons not to grant it as specified in the legislation. In some cases drug related offending, by a person who has previously failed to engage with a drug testing regime, will also fall under the exclusion of the right to bail.
Police bail