Bail

CRP.03 — Bail

Whether a defendant is released or remanded in custody between hearings. Governed by the Bail Act 1976.

The right to bail

• s.4 Bail Act 1976: a defendant has a prima facie right to bail, which the court may refuse only on a ground made out under Schedule 1. The court needs no reason to grant; it needs a ground to refuse.

Grounds to refuse (imprisonable offences, Sch 1)

For offences within Part 1, paragraph 2 permits refusal where the court is satisfied that there are substantial grounds for believing the defendant would, if released, fail to surrender, commit an offence while on bail, or interfere with witnesses or otherwise obstruct justice. Other Schedule 1 exceptions must be considered separately. Part 1A governs the imprisonable offences excluded from Part 1 by its paragraph 1(2), including summary offences; its grounds are not simply the Part 1 list.

For the decisions specified in Part 1 paragraph 9, the court must have regard to relevant factors, including the nature and seriousness of the offence, the defendant's character, antecedents, associations and community ties, their record on previous bail, and normally the strength of the evidence. Since 22 March 2026, the list expressly includes the fact that the defendant is pregnant, is another person's primary carer, or has been the victim of an offence involving domestic abuse. These are relevant considerations, not automatic entitlement to bail (Bail Act 1976, Sch 1 Part 1 para 9; Sentencing Act 2026, s.44; SI 2026/86, reg.2).

No real prospect of immediate custody

For an adult aged 18 or over, specified refusal grounds are disapplied if it appears to the court that there is no real prospect of a custodial sentence other than a suspended sentence in the proceedings. Since 22 March 2026, this is not confined to a defendant who has not yet been convicted. Part 1 paragraph 1A disapplies paragraphs 2, 2A and 6 in non-extradition proceedings; Part 1A paragraph 1A disapplies paragraphs 2, 3 and 7 in proceedings within that Part. A previous conviction is not itself an exclusion from this restriction. After conviction the Schedule only applies where s.4 still does, chiefly where the case is adjourned for inquiries or a report (s.4(4)); the adjourned-for-reports exception in Part 1 paragraph 7 is also outside the disapplied list.

This does not remove every power to refuse bail. For example, the associated-person harm exception in Part 1 paragraph 2ZA (or Part 1A paragraph 4), and the own-protection exception in Part 1 paragraph 3 (or Part 1A paragraph 5), remain outside those lists. Identify the applicable Part and exception before deciding whether the no-real-prospect restriction disapplies it.

Conditions (s.3)

Where the court has concerns short of refusal it may impose conditions — residence, reporting to a police station, a surety (a third party promises a sum if the defendant absconds), security (money/valuables lodged), curfew with electronic monitoring, or surrender of passport.

Electronic monitoring has additional statutory limits. For an adult in non-extradition proceedings with no real prospect of immediate custody but a real prospect of a suspended sentence, s.3AAB applies. For indictable or either-way offences, the court needs substantial grounds for believing that without monitoring the person would fail to surrender, offend on bail or obstruct justice, or must be satisfied that without monitoring bail would not be granted. Summary cases have the specific gateways in s.3AAB(5)-(8), not the unrestricted Part 1 risk list. In each case suitable monitoring arrangements must be available in every relevant area. For other adults, s.3AB requires both that bail would not be granted without monitoring and that the necessary arrangements are available. Youth conditions are separate under s.3AA; monitoring is not automatic merely because a curfew is proposed.

Special cases

• Murder: only a Crown Court judge may grant bail. Magistrates have no power to grant or refuse bail for murder — they must transfer the question to the Crown Court, which must decide within 48 hours (s.115 Coroners and Justice Act 2009).
• s.25 Criminal Justice and Public Order Act 1994: for the gravest repeat offences (e.g. murder, attempted murder, manslaughter, rape) where the defendant has a previous such conviction, bail is granted only in exceptional circumstances.

Renewed applications and appeals

• After a refusal, the court must consider at each subsequent hearing whether the defendant ought to be granted bail, for as long as s.4 applies and the defendant remains in custody. At the first hearing after the refusal the defendant may support an application with any argument of fact or law, whether or not advanced before; at later hearings the court need not hear arguments it has heard previously (Sch 1 Part IIA, paras 1-3).
• Defence appeal against refusal — to the Crown Court under s.81 Senior Courts Act 1981.
• Prosecution appeal against a grant of bail (imprisonable offences) — s.1 Bail (Amendment) Act 1993: oral notice at the hearing, confirmed in writing within 2 hours.

Common traps

• The starting point is the right to bail (s.4) — a Sch 1 ground must be made out to refuse it.
• For murder, magistrates cannot decide bail at all (s.115 CJA 2009) — the Crown Court does, within 48 hours.
• The Sch 1 risk-of-harm condition (para 6ZA) is a separate gateway — do not state it as the general bail test.
• Failing to surrender is itself a separate offence (s.6 Bail Act 1976).

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