Status, forum and the starting entitlement to court bail

Begin with the defendant, not a list of risks

Bail is release subject to a duty to surrender to custody at the appointed place and time. Unconditional bail means no additional requirements: it does not remove the obligation to attend. Conditional bail adds requirements such as residence or non-contact. Remand in custody means detention under a court order pending the next stage; it is not a sentence for the alleged offence. Absconding concerns failure to surrender, not every infringement of a condition. These distinctions follow from Bail Act 1976 ss 1–3 and 6–7.

Before preparing submissions, establish age, each charge, its classification and imprisonability, whether guilt has been established, the court presently dealing with the case, the previous bail decisions and every other legal basis for detention. A client can win bail on one charge yet remain detained on another charge or a sentence. An electronic tag or a prison location does not, by itself, identify the power under which the client is held.

The right to bailGlossary termRight to bail under Bail Act 1976 s 4 is the starting point where that provision applies. It covers an accused appearing or brought before the magistrates’ court or Crown Court in connection with proceedings, and specified post-conviction situations, including an adjournment for inquiries or a report to assist sentencing. It also covers the specified community-order breach situation. It is not an unrestricted right to bail after every conviction, during every appeal or while serving a sentence. Identify the actual statutory status before announcing that the presumption applies.

At a qualifying hearing, the court must consider bail even without a formal defence application. Once bail has been refused, Schedule 1 Part IIA requires reconsideration at subsequent qualifying hearings while the defendant remains in custody. An earlier remand is not a substitute for the current decision. CrimPR 14.2 and 14.4 require a fair, reasoned and recorded process.

Select the correct part of Schedule 1

For this purpose, imprisonability is assessed without treating the statutory restrictions on imprisoning young or first offenders as changing the offence’s classification: Schedule 1 Part III paragraph 1. Apply the specific value-based classification where it affects bail; the first-hearings and youth chapters explain those routing rules. Youth sentencing restrictions do not turn an otherwise imprisonable charge into a non-imprisonable offence. A child’s entitlement and any refusal of bail must then be followed by the separate youth-remand legislation, not an adult prison-remand assumption.

An either-way offence remains within Part I even when it is being tried summarily; “trial in the magistrates’ court” and “summary-only offence” are different propositions. Where several charges are before the court, identify the statutory route from the combination of charges rather than assigning the whole case to Part IA merely because one count is summary-only.

Risk assessment is not a trial of guilt

Where the statute uses substantial grounds for believing, the court needs a properly supported assessment of a specified future risk. Mere possibility, an unsupported police objection or the label “serious offence” is insufficient. Conversely, the prosecutor need not prove the charged offence beyond reasonable doubt at the bail hearing. The judge or magistrates assess the material for the bail decision, preserving the defendant’s presumption of innocence and opportunity to respond.

Different provisions use different formulations: substantial grounds, an appearance to the court, a belief based on an earlier failure, no significant risk, or exceptional circumstances. Do not substitute one formula for another. The prosecution must identify the particular exception and the evidence supporting it; the defendant is not required to prove innocence to obtain release. The approach to the overall justification of detention, including the special serious-offence restriction, is explained in O v Crown Court at Harrow [2006] UKHL 42, paragraphs 27–35.

Authorities: Bail Act 1976, s 4; Schedule 1, Parts I, IA, II, IIA and III; CrimPR 2025, Part 14.