In the majority of cases when an arrest is made, the defendant can request bail.  The prosecuting side can only refuse bail on three conditions. The first is they believe that the defendant will not answer bail, the second is that the defendant will commit other offences during their bail period or third, there is a risk that the defendant will interfere with witnesses for the prosecution.


If a defendant is granted bail, this means that they will be permitted to re-enter the community while they await further investigations to be carried out or a date to attend a trial. Bail is an alternative to spending this time in custody.

An individual can be released on bail at any time from the moment they are arrested. Bail may be granted either at the police station where the defendant was arrested after they have been interviewed or during a preliminary hearing in court. It is entirely at the discretion of the Police and Courts whether bail is granted.

The police have certain powers which allow them to release a defendant on bail but where bail is granted, there are usually conditions attached. One of the main bail conditions is that the defendant returns to a named police station at a certain date and time until their court hearing and they must attend court when they are summoned.

Bail can be refused for a number of reasons. Custody officers usually refuse bail if the name and address of the defendant cannot be obtained or the officer believes that the information provided by the defendant is false or inaccurate.

Once the defendant has been granted bail and they fail to attend the police station at the specified date and/or time or they do not attend court, the police can issue a warrant for their arrest for breach of bail conditions.

What is Conditional Bail?

In line with the Criminal Justice and Public Order Act 1994, the Police are able to attach certain conditions to bail.

Typically these will include:

  • Surrendering passport
  • Reporting to the police station at regular intervals for the duration of the bail period
  • Providing the name of an individual to stand as ‘surety’ for surrender of the defendant

These conditions will be imposed on the defendant and checks will be carried out to ensure that they are meeting the terms and conditions of bail. In addition, the defendant must ensure that they do not commit any other offences during the bail period or contact any witnesses during this time.

When the Custody Officer refuses bail, the defendant must be taken to the Magistrates Court at the earliest opportunity. If the Magistrates cannot deal with the case in its entirety in the first instance, they will set a date for a future hearing and at this point determine whether or not to grant bail.

The Bail Act 1976

Under The Bail Act 1976, the courts must conduct a thorough assessment to determine the suitability of the defendant to be released on bail.

There are several factors that the courts will take into consideration including:

  • The seriousness and nature of the crime committed
  • The defendant’s character, any previous convictions, associations and/or connections to the community
  • Where the defendant has been arrested previously, whether they adhered to bail conditions
  • The strength of the evidence presented against the defendant

If the defendant is charged with the crime but it is not punishable with a custodial sentence in prison, the only reason where bail can be refused is if the defendant has failed to surrender in the past and there are sufficient grounds to believe that the defendant will present the same risk of breaching bail conditions again.

Surety Explained

One of the bail conditions that a custody officer or court may stipulate, is that the defendant needs someone to stand as ‘surety’. This is similar in nature to a ‘guarantor’. If someone agrees to stand as ‘surety’ this will mean that they agree to pay the court a specific amount of money if the defendant breaches any of the bail conditions such as failing to attend court.

The person who acts as ‘surety’ does not have to pay anything provided that the defendant complies with their bail conditions. The sum is only payable if there is a breach.

While there are many instances where bail is granted, there are some offences which are just too serious.

Restrictions on bail will usually occur in the following situations:

  • Murder – If the murder case is sent to the Crown Court, Magistrates will have no authority to consider bail. Using the Coroners and Justice Act 2009, there is a chance that bail will not be granted by the Crown Court. Bail will only be granted if the defendant can demonstrate that they present no risk of committing further offences or they will not cause physical or mental harm to another individual.
  • Persistent Repeat Offenders – If an individual is charged with rape, manslaughter or murder and they have already served a period of time in prison for the same or a similar offence, they will not have any right to bail unless there are exceptional extenuating circumstances
  • Offences Committed During Bail – If the defendant is aged 18 years or over the court must be satisfied that they will not commit further offences while they are on bail.
  • Drugs – If the defendant is charged with an offence which relates to Class A drugs they may not be granted bail unless the court believe that the defendant will not commit any further drugs offences while on bail.

Once bail has been granted, the defendant is bound by the terms and conditions of bail until they are released by the police.

There are exceptions to this rule which include:

  • If the police have doubts about the identity of the defendant
  • Where the defendant needs to be detained to protect themselves or another person
  • If there are concerns that you may fail to attend court or make contact with witnesses

Offences while on Bail

A defendant may commit offences while they are on bail. If for example, they do not return to the Police station at the date and time requested, the defendant may face further criminal charges. This is known as ‘failure to surrender’ and it is treated as a serious offence. A breach of trust on a criminal record may affect the defendant’s ability to secure bail if they are ever charged with an offence at any point in the future.

Bail will only be granted by the police or a court on the basis that the defendant will not cause further problems in the community or contact witnesses during the bail period. For expert advice on any aspect of bail it is advised that you consult a professional solicitor with specialist knowledge in this area of law.

About the author:

This article was written by a member of the Expert Answers legal advice team and posted by Lloyd Barrett. Expert Answers provides online legal advice on all aspects of UK Law to users in the United Kingdom.

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