Breach, failure to surrender and absconding

Three events which must not be called the same offence

A breach of a bail conditionGlossary termBreach of bail condition, such as breaking a curfew, is not by itself a general criminal offence under the Bail Act. It can justify arrest and reconsideration of bail. Failure to surrender can be the separate offence under section 6. New offending while on bail, such as assault or witness intimidation, can justify a prosecution for that new offence as well as a bail decision. The same conduct may have more than one consequence, but each requires its own legal basis.

Neither a monitoring alert nor an arrest proves a criminal offence. Obtain the actual order, its duration and wording, the alleged act, the time of arrest, any monitoring records and the client’s explanation. Check whether the requirement existed and applied at the relevant time. A proposed condition which was never imposed cannot be breached.

Arrest under section 7: which threshold and which actor?

Under Bail Act 1976 s 7(3), a constable can arrest without a warrant a court-bailee where there are reasonable grounds for believing that the person is unlikely to surrender, or is likely to break a condition. For an alleged completed breach, the statutory threshold is reasonable grounds for suspecting that a condition has been broken. There is also a separate route where a surety gives written notice that the defendant is unlikely to surrender and, for that reason, asks to be relieved of the surety obligation. Do not replace these grounds with “the officer thinks the defendant is guilty”.

Under s 7(1), failure to surrender to court can lead to a warrant. Under s 7(2), leaving after surrender but before the court is ready to begin or resume can also lead to a warrant, unless the person has leave to be absent. A warrant for non-attendance and a constable’s warrantless preventive arrest are different powers.

The prosecutor and court officer must arrange an urgent hearing under CrimPR 14.16–14.17. The ordinary section 7(4) requirement is production before a justice as soon as practicable and within 24 hours after arrest. Christmas Day, Good Friday and Sundays are excluded by section 7(7); an ordinary Saturday or other bank holiday is not excluded on this ordinary route. If arrest occurs within 24 hours of the appointed surrender time, section 7(4)(b) instead directs production before the court at which the defendant was to surrender. Identify this exception rather than automatically selecting any convenient magistrates’ court.

For a person charged with murder, s 7(8) substitutes a Crown Court judge and adds Saturdays and bank holidays to the excluded days for the production calculation. This is not the same deadline as the initial murder-bail consideration under rule 14.10. The initiating event here is a section 7 arrest.

Production and the judicial decision

Delivery to a courthouse is not enough: the person must be brought before the judicial decision-maker. There is also a judicial disagreement about how much of the section 7 decision must be completed within the 24-hour period. R (Culley) v Crown Court at Dorchester [2007] EWHC 109 (Admin) treated timely disposal as necessary; McElkerney v Highbury Corner Magistrates’ Court [2009] EWHC 2621 (Admin) subsequently expressed obiter doubts about that construction. In McElkerney, the breach hearing began inside 24 hours but the decision followed expiry of that period; the challenge concerned whether the court had then lost jurisdiction. Paragraphs 9–10 record the earlier Culley approach and Richards LJ’s doubts. Obiter means a judicial observation not necessary to decide the case. The safe practical course is to arrange both production and the section 7 determination within the applicable period, identify any threatened overrun immediately and require a lawful basis for continuing custody. It is unsafe to teach either unlimited adjournment after nominal production or an unquestioned automatic release rule without addressing the authorities.

At the hearing, the court asks whether it is of the opinion that the defendant is unlikely to surrender, or has broken or is likely to break a condition: s 7(5). The defendant must have a fair chance to answer. This is not a trial requiring proof of a bail-condition offence beyond reasonable doubt. If the opinion is formed, the court can order custody or bail on the same or different conditions, subject to the applicable statutory restrictions. If the opinion is not formed, it must grant bail on the original conditions, if any. A finding of breach does not compel custody.

Keep the immediate section 7 power separate from the later Schedule 1 bail decision. Section 7(5A) bars custody under section 7(5) where all its conditions apply: the defendant is 18 or over, was bailed in non-extradition proceedings, is unconvicted in those proceedings, and has no real prospect of a custodial sentence. Its text has not been rewritten in the same terms as the 2026 Schedule 1 amendment. A suspended sentence is a custodial sentence; do not silently replace section 7(5A) with the wider Schedule 1 restriction concerning immediate custody and including convicted adults. Identify which power is being exercised. At a subsequent Schedule 1 decision, apply the current Part I, IA or II provisions explained in section 2.

For a child, section 7(6) subjects any refusal of bail to the youth-remand legislation. A proved curfew breach is not a statutory shortcut into adult custody, nor does it establish every condition for youth detention accommodation.

Failure to surrender: offence, cause and later attendance

Under s 6(1), a person released on bail commits the failure-to-surrender offenceGlossary termFailure to surrender by failing without reasonable cause to surrender at the appointed place and time. Under s 6(2), even where there was reasonable cause for that original failure, the person commits an offence by failing to surrender as soon after the appointed time as is reasonably practicable. An initially valid excuse does not justify unnecessary delay after it ceases to prevent attendance.

The defendant bears the burden of proving reasonable cause under s 6(3), on the balance of probabilities. Evidence of an acute medical emergency may support that explanation. Forgetting, choosing a more convenient date or simply expecting a solicitor to attend instead ordinarily does not. Under section 6(4), failure to receive the written record of bail is not, by itself, reasonable cause. That is different from examining whether a genuine misunderstanding or other circumstance amounts to reasonable cause on the evidence.

Surrender is an act, not merely proximity. Follow the particular court’s arrangements and present personally in the way required to submit to its custody. Attending the building, speaking only to an advocate or waiting in the wrong place may not suffice. The solicitor should explain the surrender time and point in advance, encourage early arrival and confirm the client has actually surrendered. Court staff instructions and what the defendant did are material; do not assume identical arrangements in every court.

Section 6 can be dealt with summarily or as contempt of court through the statutory route. For an adult, the section 6(7) custodial maximum is three months on summary conviction, or 12 months where the Crown Court deals with the statutory committal or contempt route; a fine can also be imposed. These are maximum powers, not standard sentences. The offence date matters: the Crown Court ceiling is six months for failures committed from 7 February to 17 October 2023 inclusive; the 12-month power was restored from 18 October 2023 by SI 2023/1108, and the current Failure to Surrender to Bail guideline preserves that historical distinction. The court must distinguish liability, reasonable cause, mitigation and the appropriate sentence. Youth disposals and powers require the youth framework.

The ordinary six-month summary limitation does not simply apply to every section 6 case: s 6(10) disapplies Magistrates’ Courts Act 1980 (MCA) s 127. Sections 6(11)–(14) then provide a special commencement scheme for offences arising from police bail, either an information within six months from the failure-to-surrender offence, or no later than three months from the first subsequent qualifying event. Those events are surrender at the appointed place; arrest or police-station attendance in connection with the failure or original offence; or appearing or being brought before a court in connection with either offence. The earliest qualifying event controls the three-month alternative; the alternatives are not cumulative. The police-bail scheme is not a six-month bar on prosecuting failure to surrender to court. Identify the grant, the offence and the applicable initiating rule rather than importing the ordinary summary-offence period.

A failure can also justify a warrant, affect later bail and expose a surety to forfeiture. Forfeiture is not automatic punishment for every curfew infringement: the recognizance (the formal financial undertaking) and failure to surrender matter, and CrimPR 14.15 requires the surety’s opportunity to respond before the court decides. Where the conduct is also a fresh substantive offence, investigate and determine that allegation separately. The original prosecution does not disappear because the defendant has absconded.

Authorities: Bail Act 1976, s 7; s 6; CrimPR, rr 14.15–14.17. For the offence-date sentencing distinction, see SI 2023/1108 and the Failure to Surrender to Bail guideline. The section 7 disposal disagreement is discussed in the CPS Bail guidance, breach procedure, which is operational guidance rather than a substitute for the statute or judgments.