Between 1979 and 1989, the prison population of England and Wales grew rapidly, 78% were attributed to the number of unconvicted persons awaiting trial. The overcrowding problems have led to pressure being placed on the government to reduce the prison population, especially the number of prisoners held on remand awaiting trial, many whom have had to be held in empty police cells on a temporary basis. The police and the courts can make the decision bout holding an accused person in custody prior to the conviction. Being granted bail is important to a suspect for a number of reasons:
- Refusal of bail may have a significant effect on the outcome of the trial
- It may become difficult to consult with lawyers and prepare an adequate defence.
- There is the unpleasant aspect of being remanded in custody should bail b refused
- The suspect may become unemployed whilst in prison.
Research that has been carried out suggests that suspects retained in custody are more likely to plead guilty, to be convicted and to be imprisoned, than a suspect who was granted bail.
Both the police and courts have the power to granted bail. The police can decide to release an arrested person or keep them in custody. But any person kept in custody after being charged must be brought before a magistrates court as soon as practicable. However, the police decide to release the suspect on bail. If bail is granted then the suspect is released under a duty to attend court or the police station at a given time. The courts are governed by the provisions found in the Bail Act 1976 and there is a presumptive right to bail under section 4 and it can only b refused on conditions set out in the Act. The underlying doctrine is very clear – unnecessary resort to custody is as legally wrong as it is morally offensive. But there are three principles which should guide decision makers in their treatment of the defendant and this are:
- Justice delayed is justice denied
- The public has a right to be protected against individuals who could pose a threat
- Unconvicted person must presumed to be innocent and treated accordingly.
The presumption under section 4 Bail Act 1976 is that unconvicted suspects will be given bail. This ties in with the fact that everyone is innocent until proven guilty.
The court will also consider whether the accused should be kept in custody for their own protection or will not grant bail where the accused is already serving a prison sentence or where there has been insufficient time to obtain information as to the criteria for bail. But when the charge is murder, rape or manslaughter and the accused has a pervious conviction for such an offence (S25 of CJPOA 1994). The CJPOA (Criminal Justice and Public Order Act) 1994 states that bail should not be granted, and the presumption in favour of bail is reversed where someone is charged with a further indictable offence, which appears to have been committed while on bail. But in the case of Cabballero V UK (2000, Caballero challenged S25 by going to the ECHR. The ECHR said S25 was a breach of the right to a fair trial. So S56 of the Crime and Disorder Act 1998 amended S25 and said that bail can be granted in ‘exceptional circumstances’.
An accused can make two application of bail. The case that decided the number of bail application was R V Nottingham Justices exp. (Davies) 1981. The magistrates have decided they would only hear two applications for bail without a change of circumstances. Davies felt they had beyond their powers and appealed by ‘way of case stated’ to the Divisional court of the High Court QBD. The High Court however ruled that the magistrates were correct.
A case that highlights the problems with bail is R v Hagans (1992).
Hagan’s jailed for life for rape and murder of 23 year old. He committed this offence while on bail for another rap charge. This case highlights that bail conditions can easily be broken an innocent people suffer. The CJPOA would not have allowed bail if S25 had not been challenged.
People who commit criminal offence whilst on bail are known as ‘bail bandits’. Over the year the public and governments have been come very worried over this and the case of Hagans highlights the problem where bail bandits are committing serious offences. The CJPOA 1994 was partly aimed at cracking down on bail bandits. It states that no bail will be granted to suspects who offend whilst on bail. It has been estimated that 25% of offenders commit offence whilst on bail. But it is very necessary to crackdown on the bail bandits as they are endangering the public and making a mockery of the law but it does increase the prison population.
There are a number of problems with the bail system such as:
- A high number of those refused bail are acquitted
- Many are eventually given non-custodial sentences
- Too many people are being held in custody
- Periods of remand are too high.
But there have been several initiatives proposed and some implemented to assist the system such as:
- Bail Support Schemes: they are set up to offer advice, counselling and surveillance to those who are granted bail
- Bail Hostels: these are run by the probation service and offers accommodation for defendants awaiting trial. This gives the defendant freedom, whilst at the same time supervision.
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The government are currently preparing a Criminal Justice Bill, which would Further restrict the use of bail.
