Bail

Bail laws in Australia are similar to the laws of New Zealand, Canada and the US, but are different in each state. Each state holds that there is a prima facie entitlement to bail for most charges upon application by a defendant. However, there is an exception when the charges are especially serious, such as drug trafficking, family violence or murder. In such cases, there is no entitlement to bail, and it must be argued as to what circumstances exist that justify a grant of bail.[5]

In Victoria, bail may be refused to a defendant who faces a more serious charge unless the defendant demonstrates compelling reasons why bail should be granted.[6] Compelling reasons may generally be established by demonstrating that jail is an unlikely outcome for the charge, or that bail conditions can be imposed that make re-offending unlikely. In cases where a defendant is charged with murder, terrorism or offending with a moderately serious charge while on bail, to become eligible for bail the defendant must prove exceptional circumstances.[6][7] Exceptional circumstances is difficult to demonstrate, but may potentially arise as a consequence of significant delay in a criminal prosecution.[7]

Just as in the United States, people charged with a criminal offence in Canada have a constitutional right to reasonable bail unless there is some compelling reason to deny it. These reasons can be related to the accused's likelihood to skip bail, or to public danger resulting from the accused being at large. In stark contrast to many other jurisdictions granting a constitutional right to bail, in Canada the accused may even be denied bail because the public confidence in the administration of justice may be disturbed by letting the individual, still legally innocent, go free pending the completion of the trial or passing of sentence (Criminal Code, s. 515 (10)(c)). Sureties and deposits can be imposed, but are optional.[8]

Instead of remand, a court in the Czech Republic may decide to accept:

• a guaranty from a trustworthy person or association
• a written word of honor from the person charged
• surveillance by a probation officer
• bail

Bail can be considered when a charged person is held because of concern of possible escape or of a continuation of criminal activity. Bail cannot be considered where there is a concern of influencing witnesses or otherwise frustrating of the proceedings. Bail is also excluded in case of 31 specified serious crimes (e.g. murder, grievous bodily harm, rape, robbery, public endangerment, etc.) when the person is held due to concern of continuation of criminal activity. Bail may be posted either by the charged person, or with his or her consent, by a third party, but this only after this third party has received a thorough briefing regarding the charges and reasons for custody[16] and possible grounds for the forfeiture of the bail.[17]

After the bail has been posted, the court must again review the grounds for bail, and must decide either to accept or refuse the bail.[18] When accepting the bail, the court may also require the charged person to stay in the country.[19]

The court may decide to rescind the bail if the charged person[20]

• escapes, is in hiding or fails to report a change of address and thus frustrates the possibility of delivery of summons or other documents from the court, the prosecution or the police, or
• is at fault for failing to appear for a proceeding, which may not take part without him or her, or
• continues criminal activity, or attempts to finish the crime which they had attempted or threatened previously, or
• is evading execution of imprisonment sentence, court ordered fine or other court ordered punishment.

The court holds out on bail as long as the reasons for custody remain (which includes pending of the charges), and in case of conviction until the convict starts serving prison sentence, reimburses the criminal proceedings and/or pays court ordered fine. In case that the court decided also on damages and the aggrieved party asks for it within three months, the bail or its part may be used also to reimburse the damages.[21] Otherwise, the court returns the bail.

Both the prosecutor and the person in custody may challenge any decision on custody (including bail) by filing a complaint which leads to review by an appellate court.[22]

Indian law stresses the principles of presumption of innocence. The principle embodies freedom from arbitrary detention and serves as a bulwark against punishment before conviction. More importantly, it prevents the State from successfully employing its vast resources to cause greater damage to an un-convicted accused than he/she can inflict on society. While considering bail applications of the accused, courts are required to balance considerations of personal liberty with public interest. Accordingly, the granting of bail should be the rule rather than the exception.[23] The Supreme Court has laid down in its judgements, "Personal liberty, deprived when bail is refused, is too precious a value of our constitutional system recognized under Article 21 that the crucial power to negate it is a great trust exercisable, not casually but judicially, with lively concern for the cost to the individual and community. To glamorize impressionistic orders as discretionary may, on occasions, make a litigation gamble decisive of a fundamental right. After all, the personal liberty of an accused or convict is fundamental, suffering lawful eclipse only in terms of procedure established by law." The courts have also held that foreign nationals cannot be deprived of the right to seek bail. The Delhi High Court observed, "Law does not permit any differentiation between Indian Nationals and Foreign citizens in the matter of granting bail. What is permissible is that, considering the facts and circumstances of each case, the court can impose different conditions which are necessary to ensure that the accused will be available for facing the trial. It cannot be said that an accused will not be granted bail because he is a foreign national."[24]

The Code of Criminal Procedure, 1973 does not define bail, although the terms bailable offence and non-bailable offence have been defined in section 2(a) of the Code. A Bailable offence is defined as an offence which is shown as bailable in the First Schedule of the Code or which is made bailable by any other law, and non-bailable offence means any other offence. A person who is arrested for a 'bailable' offence may secure bail at the police station, while those who fail to secure police bail and those arrested for non-bailable offences have to secure bail in court.[1]

Sections 436 to 450 set out the provisions for the grant of bail and bonds in criminal cases. The amount of security that is to be paid by the accused to secure his release has not been mentioned in the Code. Thus, it is left to the discretion of the court to put a monetary cap on the bond. The Supreme Court of India has delivered several cases wherein it has reiterated that the basic rule is – bail and not jail. One such instance came in State Of Rajasthan, Jaipur v. Balchand @ Bailey which the Supreme Court decided on 20 September 1977, and held that the basic rule is bail, not jail, except where there are circumstances suggestive of fleeing from justice or thwarting the course of justice or creating other troubles in the shape of repeating offences or intimidating witnesses and the like by the petitioner who seeks enlargement on bail from the court. The bench of Krishnaiyer, V.R. had observed that when considering the question of bail, the gravity of the offence involved and the heinousness of the crime which are likely to induce the petitioner to avoid the course of justice must weigh with the court. Taking into consideration the facts of the case the apex court held that the circumstances and the social milieu do not militate against the petitioner being granted bail.[25]

When a person accused of a crime is arrested, his statement is recorded and information such as the name, residence address, birthplace, charges filed are noted. The police officer may also check back the criminal record if any in the police station and ask for fingerprints to file a case against the accused. Under the Code of Criminal Procedure 1973 (First Schedule), offences have been classified as "bailable" and "non-bailable" offences. In the case of bailable offences, if the accused produces proper surety, and fulfils other conditions, it is binding upon the Investigating officer to grant bail. However, in case of a non-bailable offence, the police cannot grant bail; it can only be granted by a Judicial Magistrate/Judge. The Investigating Officer must produce the accused before the Judicial Magistrate/Judge concerned within 24 hours of his arrest. At that time, the accused has a right to apply for bail. Depending upon the facts of the case, the judge decides whether bail should be granted. If bail is granted the accused must deposit money with the court. Generally, for lesser crimes, a standard amount is asked to be deposited for awarding the bail.

There are some conditions put under section 437 of the Cr.P.C. wherein bail can be requested even for a non-bailable offence. In non-bailable cases, bail is not the right of the accused, but the discretion of the judge if regards the case as fit for the grant of bail, it regards imposition of certain conditions as necessary in the circumstances. Section 437(3) elaborates the conditions set by the law to get bail in non-bailable offences. The sub-section says that when a person accused or suspected of the commission of an offense punishable with imprisonment which may extend to seven years or more or of an offense under Chapter VI, Chapter XVI or Chapter XVII of the Indian Penal Code (45 of 1860) or abatement of, or conspiracy or attempt to commit, any such offense, is released on bail under sub-section (1). However, for that, the Court has the power to impose any condition which it considers necessary. Some conditions that the court may place while granting bail are to ensure that such person shall attend in accordance with the conditions of the bond executed under this Chapter, or to ensure that such person shall not commit an offence similar to the offence of which they are accused or of the commission of which they are suspected, or otherwise in the interests of justice.

Like Canada and the United States, those charged with a criminal offence have a right to be released on bail with reasonable terms and conditions, unless there is a good reason for continuing to be held in custody.

When one is arrested the police decide whether to grant the person bail until their court date. After that the courts will have discretion whether to grant bail again, if the case is not resolved at the first court appearance.

When considering granting bail, the police and courts take into consideration factors such as: the persons likelihood of showing up to court, the nature of the offence, the persons past conduct, whether the person will offend again while out on bail, and the risk of evidence/witnesses being tampered with. Certain offences (such as violence, drug-dealing, or repeat offenders) automatically disqualify persons from being granted bail. People who have previously breached their bail or the conditions associated with it are less likely to be granted bail again.[26]

In the Republic of Ireland, bail (Irish: bannaí, from Old Norse band, "binding") is when a person enters a written bond (recognisance), committing to appear before the court to answer the charges made against them.[27] A person may be required to lodge money as part of their bail. A surety is a person who makes themselves responsible for a prisoner coming to court. They promise to pay a sum of money to the court if the prisoner does not appear as agreed; however, commercial bail bonding as in the U.S. is illegal.[28][29]

There are three kinds of bail:

• Station bail: set by a Garda Síochána.[30] A common condition is that the prisoner must report to his/her local Garda station once or several times a day.[31]
• Court bail: set by the judge in the District Court. The prisoner (or his/her surety) must pay the court at least one-third of the amount of money promised in the bail bond.
• High Court bail: if the prisoner is charged with a very serious crime, only the High Court can grant bail.[32]

In People (AG) v O'Callaghan (1966), the Irish Supreme Court had ruled that the provisions of Article 40.4 of the Irish Constitution, which guarantees personal liberty and the principle of habeas corpus, meant that an individual charged with a crime could only be refused bail if they were likely to flee or to interfere with witnesses or evidence. The Sixteenth Amendment of the Constitution of Ireland, approved by referendum in 1996, provided that a court could refuse bail to a suspect where it feared that while at liberty they would commit a serious criminal offence. The Bail Act 1997 was passed by the Oireachtas the following year, and it governs bail in the Republic.[33]

In Anglo-Saxon Britain, violence and feuding were a real and socially destabilising route used to correct actual or perceived wrongs. These approaches were originally incorporated into the primitive legal system via the process of outlawing and ‘hue and cry’ communal vigilantism.[34] Over time, localised justice was increasingly stripped of violence through the system of ‘bots’, private payments to compensate grievances, and ‘wites’, payments to the monarch. As wrongdoing was essentially still a private affair, a value payment was a simple, non-violent solution.[35] As prisons were not a functional system for holding individuals securely at the time, fleeing to avoid justice was a systemic risk. To combat this risk alleged wrongdoers were allowed to pay ‘bail’, at the exact equivalent value of their bot, in exchange for going free until the date of trial.[36] Some crimes, however, remained so serious that only custody was appropriate.[37]

After the Norman conquest of England, two practical pressures on the state influenced a more complex bail system: a poor prison system and a slow trial process. As criminal justice was increasingly centralised, the state became responsible for holding wrongdoers until trial.[38] Jails were unsanitary and dangerous places, inadequate to be widely used. At the same time the increased use of corporal punishment encouraged individuals to flee before trial. This use of corporal punishment has been linked by Cabrone [39] to the spiralling increase in bail securities and sureties above the original bot system, as the fear of the punishment became so great people were willing to abandon sums of money which were equivalent to the wrong they had committed. As a result these sums had to be increased so as to reduced incentives to escape justice.[40]

In order to limit escape without the use of jails, sheriffs were given powers, under royal authority, to hold wrongdoers in their jurisdiction until the travelling judges of the ‘circuit’ courts came to the area. The sheriffs used the bail bond system to control unimprisoned defendants awaiting trial and in doing so corruption became widespread.[41] In response Parliament passed the first Statute of Westminster (1275), setting three governing principles for bail in statute. First, the nature of the offence established whether or not bail was a possibility. Second, the likelihood of conviction must be considered, and third, the criminal history or bad-character of the defendant. Clarifying amendments were made to the bail principles in 1486, requiring two justices of the peace to assess the likelihood of conviction, and in 1554, requiring the justices’ decision be made in an open hearing and recorded in writing.[42]

The English Civil War then had its impact on the law of bail. After King Charles I imprisoned five landowners (Five Knights Case) who were refused release under the Habeas Corpus principles of Magna Carter, Parliament passed the Petition of Right in 1628.[43] This prohibited a person from being held in custody without being charged. The Habeas Corpus Act 1679 was introduced to stop excessively long delays between custody and bail hearings, and the Bill of Rights 1689 introduced a principle of proportionality to bail by stating that ‘excessive bail ought not be required’.[44][45]This was the precursor of the Eighth Amendment to the US Constitution.

The last major shift in bail legislation before the modern system was the Bail Act 1898. This allowed for justices of the peace to dispense with sureties in situations where they judged that requiring payments for bail would inhibit the course of justice, largely because this meant that many poorer criminals would languish in jail for petty crimes just because they could not afford bail bonds.[46] The Act seemed to have a significant effect, despite criticism in Parliament, as the number of people released on bail before trial had increased by 25% in 1904. [47]

Debates around the nature and application of bail remained, and are still, contentious. In 1963, over half the prisoners remanded to custody instead of being bailed before trial were ultimately not given a custodial sentence after conviction. This led to significant questions being asked about the quality of the English bail process at that time.[48] Nonetheless, it appears that by the 1960's the Bail Act 1898 had achieved its goal, as Home Office research [49] found that the number of prisoners in custody due to a lack of funds for bail was very low.

In the modern English bail system, monetary payments play a very small role. Securities and sureties can be taken as conditions for being granted bail, but these amounts are not excessive. Wider restrictions such as curfews, electronic monitoring, presenting at a police station, and limits on meeting specific people or going to specific places are more common conditions. Bail is regulated primarily by the Bail Act 1976 and the Police and Criminal Evidence Act 1984, both of which have been heavily amended by later legislation.

The Bail Act 1976 was enacted with the aims of creating more conditions by which defendants could be denied bail and also redefining the parameters of fulfilling bail. The Bail Act also nullified the recognizance system, removing the requirement of paying a specific amount of money and instead arresting defendants for failing to surrender. The Bail Act created a qualified right to be granted bail before conviction, except for when certain factors applied.[50] This does not guarantee a person will get bail, but it places the onus on the prosecution to demonstrate why bail should be refused in preference to custody.

In England and Wales there are three types of bail that can be given:[51]

• Police bail. A suspect is released without being charged but must return to the police station at a stated time.
• Police to court. After being charged, a suspect is given bail but must attend their first court hearing at the date and Court stated.
• Court bail. After a court hearing, a suspect is granted bail pending further investigation or while the case continues.

Under the Police and Criminal Evidence Act 1984, a police officer of inspector rank or higher has power to release a person who has not been charged on bail. This is deemed to be a release on bail in accordance with sections 3, 3A, 5 and 5A of the Bail Act 1976.[52] (Before the Policing and Crime Act 2017 came into force, the arresting officer had this power, but now a suspect must normally be released without bail or charged.) This so-called "police bail" lasts 28 days (or 3 months in Serious Fraud Office cases), after which the suspect is required to report to a specified police station, where they may be charged or released. (Before the above-mentioned 2017 Act, the police had the power to extend bail for 28 days at a time arbitrarily many times, leading to some cases of people effectively being punished by restriction of liberty without due process for over a year before their case was dropped.)

If the suspect is released after bail, an extended period of bail may only be imposed once by a superintendent officer up to 3 months (except in SFO cases). In "exceptionally complex" cases, particularly those involving the Financial Conduct Authority or Serious Fraud Office, the period may further be extended by an appropriate decision maker (an officer of the FCA or SFO, if applicable, or otherwise a police commander or assistant chief constable) up to 6 months, subject to representations from the suspect. After that, further extensions of bail, up to 6 months at a time, require a warrant to be issued by a magistrates' court. The bail period is suspended for any day when the suspect is in hospital as an in-patient.

Police bail may be subject to conditions for the following purposes:

1. to secure that the person surrenders to custody,
2. to secure that the person does not commit an offence while on bail,
3. to secure that the person does not interfere with witnesses or otherwise obstruct the course of justice, whether in relation to themself or any other person, or
4. for the person's own protection or, if the person is under the age of 18, for the person's own welfare or in the person's own interests.[53]

However, they may not require a recognizance, surety or security (i.e. money either paid on release or promised, perhaps by a third party, in the event of breaching the other conditions or absconding), or require residence in a bail hostel.[54]

After a person has been charged, they must ordinarily be released, on bail or without bail.[55] Exceptions to this include:

• Difficulty to ascertain a real name or address.
• Reasonable grounds for believing that the person arrested will fail to appear in court to answer to bail.
• In the case of a person arrested for an imprisonable offence, the custody officer has reasonable grounds for believing that the detention of the person arrested is necessary to prevent them from committing an offence.
• In the case of a person arrested for an offence which is not an imprisonable offence, the custody officer has reasonable grounds for believing that the detention of the person arrested is necessary to prevent them from causing physical injury to any other person or from causing loss of or damage to property.
• The custody officer has reasonable grounds for believing that the detention of the person arrested is necessary to prevent them from interfering with the administration of justice or with the investigation of offences or of a particular offence.
• The custody officer has reasonable grounds for believing that the detention of the person arrested is necessary for his own protection. But in the case of an arrested juvenile the exceptions include circumstances where: the custody officer has reasonable grounds for believing that they ought to be detained in their own interests.
• the offence with which the person is charged is murder or treason.[56]

Under current law, a defendant has an absolute right to bail if the custody time limits have expired and otherwise ordinarily a right to bail unless there is sufficient reason not to grant it.[57]

Any person accused of committing a crime is presumed innocent until proven guilty in a court of law. Therefore, a person charged with a crime should not be denied freedom unless there is a good reason.

The main reasons for refusing bail are that the defendant is accused of an imprisonable offence and there are substantial grounds for believing that the defendant would:

1. Abscond
2. Commit further offences while on bail
3. Interfere with witnesses[57]

The court should take into account the:

1. Nature and seriousness of the offence or default (and the probable method of dealing with the defendant for it)
2. Character, antecedents, associations and community ties of the defendant,
3. Defendant's bail record, and
4. Strength of the evidence[57]

The court may also refuse bail:

• For the defendant's own protection
• Where the defendant is already serving a custodial sentence for another offence
• Where the court is satisfied that it has not been practicable to obtain sufficient information
• Where the defendant has already absconded in the present proceedings
• Where the defendant has been convicted but the court is awaiting a pre-sentence report, other report or inquiry and it would be impracticable to complete the inquiries or make the report without keeping the defendant in custody
• Where the defendant is charged with a non-imprisonable offence, has already been released on bail for the offence with which they are now accused, and has been arrested for absconding or breaching bail[57]

Where the accused has previous convictions for certain homicide or sexual offences, the burden of proof is on the defendant to rebut a presumption against bail.[58]

The Criminal Justice Act 2003 amended the Bail Act 1976 restricting the right to bail for adults who tested positive for a Class A drug and refused to be assessed or refused to participate in recommended treatment.[59]

Where a defendant is charged with treason, bail may only be granted by a High Court judge or by the Secretary of State.[60] Section 115 of the Coroners and Justice Act 2009 prohibits magistrates' courts from granting bail in murder cases.[61]

Conditions may be applied to the grant of bail, such as living at a particular address or having someone act as surety, if the court considers that this is necessary:

• To prevent the defendant absconding
• To prevent the defendant committing further offences while on bail
• To prevent the defendant interfering with witnesses
• For the defendant's own protection (or if they are a child or young person, for their own welfare or in their own interests)[57]

Failing to attend court on time as required is an offence, for which the maximum sentence in a magistrates' court is three months' imprisonment, or twelve months in the Crown Court.[62] (Sentences are usually much shorter than the maximum, but are often custodial.) In addition to imposing punishment for this offence, courts will often revoke bail as they may not trust the defendant again. The amended Consolidated Criminal Practice Direction states (at paragraph 1.13.5) that "the sentence for the breach of bail should usually be custodial and consecutive to any other custodial sentence".[63]

Failing to comply with bail conditions is not an offence, but may lead to the defendant being arrested and brought back to court, where they will be remanded into custody unless the court is satisfied that they will comply with their conditions in the future.[64]

Bail can be granted by any of courts of Scotland, with the final decision in solemn proceedings being with the High Court of Justiciary. All crimes are bailable, and bail should be granted to any accused person "except where there is good reason for refusing bail". The Bail, Judicial Appointments etc. (Scotland) Act 2000, an Act of the Scottish Parliament, had removed the previous restrictions on bail that meant that murder and treason were not ordinarily bailable.[65] However, a person could be bailed when accused of these of crimes on application of the Lord Advocate or by a decision of the High Court itself.[66] The Criminal Proceedings etc. (Reform) (Scotland) Act 2007 reintroduced restrictions on the granting of bail by requiring exceptional circumstances to be shown when a person is accused of a violent, sexual or drugs offence, and they have a prior conviction for a similar offence.[67]

In Scotland, the focus is normally for those who are opposed to bail to convince the courts that bail should not be granted,[66] with the procurator fiscal given guidance to use the nature and gravity of an offence as grounds to oppose bail.[68]

A person who is refused bail can appeal against the refusal to either the Sheriff Appeal Court for summary proceedings in the Sheriff Courts and Justice of the Peace Courts and solemn proceedings in the Sheriff Courts, or to the High Court of Justiciary when a case is on trial there.[69][70] The High Court of Justiciary has final authority to decide all bail decisions, and will decide on bail appeals for cases before the High Court on first instance. A Procurator Fiscal or Advocate Depute can request the High Court to review any bail decision where they believe that bail should not have been granted.[71][72]

Bail bondsman in Longview, Texas.

The 8th Amendment to the United States Constitution states, "Excessive bail shall not be required", thus establishing bail as a constitutionally-protected right.[73] What constitutes "excessive" is a matter of judicial discretion, and bail can be denied if the judge feels that it will not aid in forcing the accused back to trial. Money bail is the most common form of bail in the United States and the term "bail" often specifically refers to such a deposit,[74]^:2 but other forms of pre-trial release are permitted; this varies by state.

Many states have a "bail schedule" that lists the recommended bail amount for a given criminal charge. At the first court appearance (the arraignment), the judge can set the bail at the amount listed on the schedule or at a different amount based on the specific facts of the crime and the person accused.[75]

A common criticism of bail in the United States is that a suspect's likelihood of being released is significantly affected by their economic status[76] and systemic racial bias.[77] In response, in 2014 New Jersey and Alaska have abolished cash bail for all but a limited number of court cases. Though the California legislature attempted to eliminate cash bail in 2018, this change was vetoed by 2020 California Proposition 25 in November of that year.

In France, bail may be ordered by the examining magistrate or the judge of freedoms and detention within the framework of Judicial control in law French [78] (before the trial). It guarantees:

• The representation of the indicted person, the accused or the accused in all the acts of the procedure and for the execution of the judgment, as well as, if necessary, the execution of the other obligations which were imposed on them . This part is restored if the person under examination has presented himself to all the acts of the procedure, satisfied the obligations of the judicial control and submitted to the execution of the judgment;
• A payment in the order defined below. This part is returned in the event of dismissal in French criminal proceedings.