Exact exceptions, special restrictions, evidence and conditions

Part I: identify the particular permission to withhold bail

Paragraph 2 permits refusal where the court is satisfied that there are substantial grounds for believing that release, with or without conditions, would lead to failure to surrender, offending on bail, or interference with witnesses or other obstruction of justice. Each is a separate predicted event. A weak case on flight does not cure the absence of evidence of interference; strong evidence of interference must be addressed even where attendance is otherwise reliable.

The remaining Part I routes are not interchangeable with paragraph 2:

An associated person has the meaning supplied by Family Law Act 1996 s 62, not the ordinary meaning of anyone the defendant knows. The definition includes specified present and former intimate, family, household and parental relationships. Identify the actual relationship and the relevant limb. A former partner may qualify; a stranger does not qualify merely by becoming a complainant. The injury/fear gateway appears in different forms in the three Schedule 1 parts, as explained below.

The current restriction where immediate custody is not a real prospect

For a defendant aged 18 or over, if it appears that there is no real prospect of a custodial sentence other than a suspended sentence in these proceedings, Part I paragraphs 2, 2A and 6 cannot be used. In Part IA, the equivalent restriction removes paragraphs 2, 3 and 7. Those are particular exceptions, not the whole Schedule. An associated-person injury exception, for example, is not removed merely because immediate custody is not a real prospect.

This is the law from 22 March 2026, when Sentencing Act 2026 s 44 was commenced by SI 2026/86, regulation 2. The amendment does two important things: it excludes a suspended sentence from the relevant custodial prospect and removes the former requirement that the adult be unconvicted. It can therefore protect an adult already convicted and awaiting sentence, as well as an accused awaiting trial. It does not apply to a child just because the child is unlikely to receive custody.

A suspended sentence is still a custodial sentence, but it is expressly disregarded by this particular Schedule 1 test. The assessment is a realistic prediction on the available facts, sentencing law and mitigation; it is not a final sentencing decision. A maximum penalty allowing imprisonment does not by itself establish a real prospect of immediate custody. Nor does a likely short sentence prove that immediate custody is legally impossible: apply the actual suspension framework and its exceptions, explained in the adult sentencing chapter.

Part IA: summary-only imprisonable offences

The available exceptions are a closed statutory set. Paragraph 2 requires an earlier failure to surrender in criminal proceedings and a present belief, in view of that failure, that the defendant would fail again. Paragraph 3 requires that the current offence was allegedly committed while on bail and substantial grounds for believing there would be further offending on bail. Neither is simply the unrestricted Part I risk test.

Paragraph 4 concerns substantial grounds for predicting offending that would cause, or be likely to cause, physical or mental injury to an associated person, or fear of such injury. The associated-person qualification is essential. Paragraph 5 concerns own protection or a child’s welfare; paragraph 6, custody under an existing sentence; paragraph 7, a section 7 arrest after bail in these proceedings plus substantial grounds for failure to surrender, offending or interference/obstruction; and paragraph 8, the inability to obtain sufficient information for want of time since proceedings began. Paragraph 9 imports the specified Class A drug provisions explained below.

For an adult with no real prospect of immediate custody, remove only paragraphs 2, 3 and 7 through paragraph 1A. Do not remove every exception. There is no general Part IA power to detain a defendant simply because an unconnected member of the public might be harmed; identify an actual available paragraph and its conditions.

Part II: non-imprisonable offences

Part II has no general first-hearing power to detain an unconvicted adult for the ordinary Part I risks. Paragraph 3 permits refusal for own protection or a child’s welfare, and paragraph 4 concerns existing custody under a sentence. Paragraph 6 requires a section 7 arrest after bail in the same proceedings plus substantial grounds for predicting offending causing or likely to cause injury, or fear of injury, to an associated person.

Two other Part II routes have an important status qualification: the defendant must be a child or young person OR already convicted of an offence in these proceedings. The alternatives are not cumulative. With that qualification, paragraph 2 requires a previous failure to surrender plus the resulting present belief that the defendant would fail again; paragraph 5 requires a section 7 arrest in these proceedings plus substantial grounds for failure to surrender, offending or interference/obstruction. An unconvicted child can satisfy the status limb; an already convicted adult can also satisfy it. An unconvicted adult cannot.

Special restriction: specified Class A drug circumstances

The special rule in Part I paragraphs 6A–6C, also applied by Part IA paragraph 9, is not triggered by a general allegation of addiction. It requires an adult, a positive result for a specified Class A drug from a sample taken under PACE 1984 s 63B in connection with the offence, or under Sentencing Code s 34A for pre-sentence drug testing, and the relevant connection with the charged offence. That connection is either the specified possession or possession-with-intent-to-supply offence, or substantial grounds for believing drug misuse caused or contributed to the offence or motivated it.

The adult must also have been offered the qualifying assessment and refused it, or, after assessment, refused the proposed qualifying follow-up. The Secretary of State’s notification of assessment or follow-up arrangements must cover the local justice area in which the person would reside, and must not have been withdrawn. When all the statutory conditions apply, bail must not be granted unless the court is satisfied that there is no significant risk of offending while on bail. Do not assume local arrangements or refusal from an incomplete file.

The complementary route in s 3(6C)–(6F) addresses agreement to assessment or follow-up: where its notified-arrangements and personal conditions are met and the court grants bail, it must impose the relevant assessment/follow-up condition. Thus refusal, agreement and operational availability have different legal consequences. A treatment suggestion is not a free-standing power to require any programme the prosecutor prefers.

Special restriction: murder

Only the Crown Court may grant bail to a person charged with murder: Coroners and Justice Act 2009 s 115. The magistrates send or refer the case and provide the information needed; they do not decide whether the murder defendant should be bailed. The Crown Court must consider bail even if the defendant does not make an application. CrimPR 14.10 requires consideration as soon as practicable and no later than the second business day after sending, or after the first magistrates’ hearing if the case was not sent then. This implements the statutory 48-hour period beginning with the day after the relevant magistrates’ event, excluding the specified non-business days; it is not 48 ordinary hours from arrest.

Under Schedule 1 Part I paragraph 6ZA, bail cannot be granted unless the court is of the opinion that there is no significant risk of an offence on bail which would cause, or be likely to cause, physical or mental injury to another person. Unlike the associated-person exceptions, this protection is not limited to an associated person. Absence of that injury risk does not eliminate other relevant bail objections.

If bail is granted, s 3(6A)–(6B) requires examinations by two medical practitioners and compliance with the necessary attendance directions, unless the court considers satisfactory mental-condition reports have already been obtained. At least one practitioner must be approved under Mental Health Act 1983 s 12. Do not confuse this requirement with the substantive test for granting bail.

Special restriction: a qualifying serious offence and previous conviction

Criminal Justice and Public Order Act 1994 (CJPOA) s 25 requires exceptional circumstances justifying bail when the current charge or conviction and a qualifying previous conviction meet its detailed conditions. The statutory group includes murder, attempted murder, manslaughter, and the specified rape and penetrative sexual offences and attempts. It is not every violent offence or every sexual offence. Verify the actual offence under s 25(2) and the previous conviction under s 25(3A)–(5).

For a current England-and-Wales sexual charge, the list includes rape under the earlier legislation and the specified Sexual Offences Act 2003 ss 1, 2, 4, 5, 6, 8, 30 and 31 routes, subject to the penetration qualifications where the particular offence covers wider conduct. Previous qualifying convictions in the United Kingdom may count. A previous conviction for manslaughter or culpable homicide must also satisfy the prescribed custodial-disposal qualification. A pending appeal does not, by itself, prevent a conviction counting. A relevant finding of insanity or unfitness and specified discharges must be considered under the statutory definition rather than assumed irrelevant.

The word exceptional does not authorise automatic detention or transfer the overall justification of detention to the accused. O v Crown Court at Harrow [2006] UKHL 42, paragraphs 27–35 requires meaningful judicial assessment of all relevant circumstances and leaves the overall burden of justifying detention with the prosecution. Section 25 also has an important effect after CTL expiry, explained in section 8.

Evidence: connect facts to the predicted event

Under Part I paragraph 9, relevant considerations include the nature and seriousness of the allegation and probable disposal; character, antecedents, associations and community ties; previous bail compliance; and, except in the specified adjournment-for-inquiries/report case, the apparent strength of the evidence. From 22 March 2026 the list expressly includes pregnancy, primary caring responsibility, and having been the victim of an offence involving domestic abuse. These are relevant considerations, not automatic entitlements or exclusions. Consider other relevant matters too.

Seriousness alone is not a free-standing exception. Explain how the probable sentence or evidence affects a defined risk. Overseas citizenship, a foreign asset, homelessness or unemployment does not automatically prove flight or future offending. Test practical connections: previous attendance, settled work, family responsibilities, access to travel documents, attempted travel, available accommodation and the support package. Avoid both stereotypes and unsupported reassurance.

For a child within the relevant Part I provisions, paragraphs 9AA and 9AB require particular weight to be given to specified offending-on-bail or failure-to-surrender history, with the latter’s reasonable-cause qualifications. That does not replace the youth-remand test. Under paragraph 9B, a proposed extended magistrates’ remand must be assessed against the total time the accused would spend in custody.

Conditions must serve a lawful purpose and work in practice

Under s 3, identify why unconditional bail is inadequate, then choose requirements necessary for a statutory purpose: surrender, preventing offending or interference, protection/welfare, enabling inquiries or a report, or attending the specified legal-representative interview. The practical standard is a targeted, proportionate, intelligible and enforceable order, not maximum restraint. Residence, reporting, curfew, exclusion, non-contact and passport surrender address different risks.

A suretyGlossary termSurety is another person’s undertaking to forfeit a stated sum or value if the defendant fails to surrender. SecurityGlossary termSecurity for bail is money or property deposited by the defendant or on the defendant’s behalf to secure surrender. Neither is a fine. Investigate ownership, resources, the surety’s relationship and ability to exercise influence, and whether the undertaking is genuine. An agreement to indemnify a surety against forfeiture is prohibited by Bail Act s 9. Ordinary security under s 3(5) is not limited to defendants likely to leave Great Britain: that old limitation has been repealed.

Electronic monitoring has two adult routes. First ask whether s 3AAB applies: the person is 18 or over, these are not extradition proceedings, there is no real prospect of immediate custody, and there is a real prospect of a suspended sentence. For indictable/either-way proceedings the gateway is substantial grounds for believing that, without monitoring, one of the three ordinary risks would arise, or that bail would not otherwise be granted. The necessary monitoring arrangements must be available in each relevant area.

Where all the offences are summary offences, s 3AAB uses narrower alternatives: an earlier failure to surrender plus belief of another failure without monitoring; the current offence committed on bail plus substantial grounds for further offending without monitoring; or a section 7 arrest in these proceedings plus substantial grounds for a core risk without monitoring. The alternative that bail would not otherwise be granted is also available. Operational availability remains a separate requirement. The statute expressly addresses the relevant value-based summary classification.

If s 3AAB does not apply, s 3AB requires that the adult would not be granted bail without monitoring, as well as operational availability. A court cannot use a low-level preference for a tag to satisfy that stricter condition. Both routes concern monitoring compliance with another bail requirement, not unrestricted surveillance. Children have a separate s 3AA gateway; do not apply the adult provisions to them.

Authorities: Bail Act 1976, Schedule 1; s 3; s 3AAB; s 3AB; Sentencing Act 2026, s 44; SI 2026/86, reg 2; CJPOA 1994, s 25.