Bail
Criminal Practice > Bail
What Is Bail?
Candidates often fail to distinguish between the initial presumption in favour of bail and the grounds on which that presumption can be rebutted — a critical distinction SQE1 examiners frequently test. Bail is the release of a person subject to a duty to attend court (or the police station) at a specified time and date. It can be granted by the police (police bail) or by the court (court bail). The Bail Act 1976 creates a general presumption in favour of bail — known as the 'right to bail' — which applies to all defendants who have not yet been convicted.
The presumption can be rebutted if the court is satisfied that one or more statutory grounds for refusing bail exist.
Key Principles for SQE1
Right to Bail
Under the Bail Act 1976, s.4, a defendant has a general right to bail. This applies at every stage before conviction.
Grounds for Refusing Bail — Imprisonable Offences
Under Schedule 1, Part 1 of the Bail Act 1976, bail may be refused if the court is satisfied of substantial grounds for believing that the defendant would: (i) fail to surrender to custody; (ii) commit an offence while on bail; (iii) interfere with witnesses or otherwise obstruct justice; or (iv) the defendant should be kept in custody for their own protection.
Factors the Court Considers
The nature and seriousness of the offence, the defendant's character and antecedents, the defendant's community ties, the strength of the evidence, and the defendant's previous bail record.
Grounds for Non-Imprisonable Offences
Under Schedule 1, Part 2, bail can only be refused on more limited grounds — principally failure to surrender on a previous occasion or for the defendant's own protection.
Conditional Bail
Even where bail is granted, the court may impose conditions to address concerns — such as a curfew, residence requirement, reporting to a police station, surrender of passport, exclusion zone, or a surety/security.
Police Bail
Under PACE s.38, the custody officer must release a suspect on bail after charge unless specified exceptions apply (e.g., the suspect's name or address cannot be ascertained, or there are grounds to believe they would fail to appear, commit further offences, or interfere with witnesses).
Bail Applications
If bail is refused, the defendant can make a further application at the next hearing based on a change of circumstances or new arguments. After two fully argued bail applications, the court is not obliged to hear further arguments unless there is a change of circumstances (Criminal Procedure Rules).
Breach of Bail
Failure to surrender to custody is a criminal offence under the Bail Act 1976, s.6. The court may also issue a warrant for the defendant's arrest.
Exam tip
A common trap in bail questions is applying the imprisonable offence grounds (Part 1 of Schedule 1) to a non-imprisonable offence — the grounds are narrower for non-imprisonable cases. Also remember that bail starts with a presumption in favour of release; the burden is on those seeking to refuse bail to show that grounds exist. Questions often test whether particular bail conditions are proportionate to the identified risk.
How This Appears in SQE1 Questions
SQE1 questions typically present a defendant's circumstances and ask whether bail should be granted, what conditions might be imposed, or which ground for refusal applies. Examiners test this distinction repeatedly. The key trap is applying the imprisonable offence grounds to a non-imprisonable offence — the grounds are narrower for non-imprisonable cases. Questions also test whether particular bail conditions are proportionate to the identified risk.
Quick Example Scenario
A defendant is charged with burglary (an imprisonable offence). He has two previous convictions for theft, no fixed address, and was arrested after failing to attend a previous court hearing. The prosecution opposes bail.
The court will consider the Schedule 1, Part 1 grounds. There are substantial grounds to believe the defendant would fail to surrender (previous failure to attend, no fixed address) and may commit further offences (previous convictions for similar offending). Bail is likely to be refused, or if granted, subject to stringent conditions such as residence at a specified address, a curfew, and regular reporting.
Common Mistakes Students Make
- Applying the full Schedule 1, Part 1 grounds to non-imprisonable offences — Part 2 applies instead, with more limited grounds for refusal
- Forgetting the right to bail — the starting point is always that the defendant should be granted bail; the prosecution must justify refusal
- Confusing bail conditions with grounds for refusal — conditions are imposed to mitigate risk, not as alternatives to refusal
- Overlooking that failure to surrender is itself a criminal offence under s.6 of the Bail Act 1976
Quick Summary
Bail law centres on a presumption in favour of release, rebutted only if grounds exist:
- Right to bail: General presumption under Bail Act 1976, s.4 for all pre-conviction defendants
- Imprisonable offences (Schedule 1, Part 1): Grounds are failure to surrender, commit offences on bail, interfere with witnesses, or defendant's own protection
- Non-imprisonable offences (Schedule 1, Part 2): Narrower grounds (mainly previous failure to surrender or own protection)
- Factors considered: Nature and seriousness of offence, character, community ties, strength of evidence, prior bail record
- Conditions: May be imposed to mitigate identified risks (curfew, residence, reporting, surety, security)
- Police bail: Custody officer must release after charge unless exceptions apply
- Further applications: Can be made on change of circumstances (limited to two fully argued applications without change)
- Breach: Failure to surrender is a criminal offence; warrant may be issued
The Presumption in Favour of Release
Bail is a crucial topic in SQE1 criminal practice — you need to know when there is a right to bail, the grounds on which it can be refused, and the conditions that can be attached. Getting these distinctions right is essential for answering procedural questions confidently.
Want to test this now? Try a few SQE1-style questions below before moving on.
Test Yourself
Test yourself
Quick check questions based on this article.
Question 1
Scenario
A woman is charged with causing grievous bodily harm contrary to section 20 of the Offences Against the Person Act 1861. She appears before the magistrates' court for a first hearing. The prosecution opposes bail on the grounds that there are substantial grounds for believing the woman would fail to surrender to custody. The prosecution relies on the fact that the woman has no fixed address, having recently been evicted from her rented flat. The prosecution also notes that the woman missed a dental appointment last week. The woman's solicitor argues that she has strong community ties, as her elderly mother lives locally and depends on the woman for daily care. The woman has no previous convictions and has never previously failed to surrender to bail. She has been employed as a teaching assistant for four years at a local primary school. The solicitor proposes that the woman could reside at her mother's address as a condition of bail. The alleged victim is a former colleague who the woman has not contacted since the incident. The offence is alleged to have occurred during an argument at a staff social event. The woman accepts that she struck the victim but claims it was in self-defence.
What is the most likely outcome of the bail application?
Question 2
Scenario
A man aged 24 has been charged with an offence of robbery contrary to section 8 of the Theft Act 1968. He appears before the magistrates' court for the first time. The prosecution opposes bail on the grounds that there are substantial grounds for believing the man will fail to surrender. The prosecution states that the man has no fixed address, has failed to appear at court on two previous occasions for unrelated matters, and was arrested at an airport with a one-way ticket. The man's solicitor makes a bail application. The solicitor argues that the man has strong community ties through his employment as a delivery driver, that his mother will act as surety, and that the previous failures to attend were due to administrative errors. The man has been employed for three years. The prosecution confirms the man has one previous conviction for common assault, for which he received a conditional discharge. The man instructs his solicitor that he is willing to comply with any conditions the court may impose. The offence is alleged to have taken place two weeks ago.
What is the most likely outcome of the bail application?
Question 3
Scenario
A woman is charged with theft and appears before the magistrates' court. Her solicitor intends to make a bail application but, during the hearing, the woman stands up and tells the court that she does not want bail and wishes to remain in custody. The solicitor had not anticipated this and has prepared a full bail application. The court asks the solicitor whether the bail application is still being pursued. The solicitor explains that the woman's statement was unexpected and requests a brief adjournment to take further instructions. The woman tells her solicitor during the adjournment that she feels safer in custody because she is afraid of her co-defendant, who she believes will be looking for her if she is released.
Which of the following best describes the court's position in relation to the bail application?
Practice with full exam-style questions
Related Topics
- Police Powers and Detention for SQE1
- Police Station Procedure and Interviews for SQE1
- Criminal Practice: Complete Topic Guide
- Mode of Trial: Classification and Allocation Explained
Practise Bail Questions for SQE1
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