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Bail in criminal cases

Following the remand into custody of Dominique Strauss-Kahn the head of the International Monetary Fund, I thought I'd say a few words about the subject of bail.

There have been some high profile cases where serious crimes have been committed by those on bail, for example Police Inspector Gary Weddell who was released on bail for murder and subsequently committed another killing or that of  Garry Newlove, who was murdered by a gang, one of whom was on bail.

In England and Wales, section 4 of the Bail Act 1976 entitles a suspect in a criminal case bail except in certain circumstances or where the suspect is charged with treason, some form of homicide or rape.  The main three reasons for refusing bail are that the court has a real fear that:
  1. the defendant will commit further offences while on bail;
  2. will fail to surrender to bail; or
  3. will interfere with witnesses or otherwise try to obstruct justice.
When considering bail, the court is required to consider the prosecution case from it's strongest angle and no consideration is given to the defence case unless it impacts upon the strength of the Crown's case, e.g. the defence are in possession of forensic evidence that undermines the prosecution case.

A defendant can put forward arguments and agree to do certain things to persuade the court that he will attend court, will not commit offences and will not interfere with witnesses, these are called bail conditions and breaching any of them allows the police to arrest the defendant immediately and bring him or her to court where the defendant may lose his bail and be sent to prison to await his trial.

In the case of Dominique Strauss-Kahn, according to one BBC report he was arrested while boarding a plane to leave the US for Berlin.  That fact alone would give any court in England or Wales cause to suspect that he was a flight risk and refuse him bail.  Although, I suspect that he probably would have been released had this happened in this country, albeit on bail to surrender his travel documents and with a surety or security (former is where somebody promises to pay £x if the defendant breaches his bail and latter is where the money is paid up front and only returned once bail has been complied with) and some other bail conditions.  You can watch the prosecution's submissions against bail and if you are interested in what happens in an English court then it's a good video to see, while the layout is completely different everything else is pretty similar; note the huge collection of papers to the prosecutor's left and that it takes him a while to get into his stride causing him to repeat himself a few times as he sounds like he might be about to flounder, which is probably thanks to having only seen the papers a few minutes before the hearing began and having 30 other cases to prepare at the same time.  Just like this country.

I went to see somebody today in prison who is accused of robbery.  He insists he didn't do it and I have to say that the evidence against him is weak.  I made the point at the bail application that the case is relatively weak and the judge agreed.  However, bail was refused because this particular client has made a habit of breaching his bail and the courts have simply run out of patience with him, so now he gets to spend time in prison for something I actually think he didn't do.

The big problem with bail is that it will never be perfect... note that, it will NEVER be perfect because it is a decision made on the spur of the moment by somebody who really doesn't know much about the defendant or the allegation.  The trouble is that there really isn't much you can do to improve this situation, not unless you are going to say to hell with the cost and increase the size of the court, probation and prosecution services by a factor of 100 so that they can all take time to properly investigate and consider ever bail application before them.  Even when those resources are thrown at a case they are not always successful.  In the case of Inspector Gary Weddell, Dr Tony Nayani gave a psychiatric report about the risk of Weddell committing suicide.  Neither the fact that Tony was only asked whether Weddell was a suicide risk nor that it was another six-months before Weddell committed his next offence stopped the press from hauling the doctor over the coals so much so that Tony Nayani eventually killed himself.  Now, I should say I am a little biased in this case as I knew Dr Nayani (at one point I was even going to do a clinical placement in preparation for a Doctorate in Clinical Psychology with him before I decided to become a lawyer).

One alternative is to simply lock everybody accused of a crime in prison.  But, trials can take a long time to come around and what if it was your son or daughter locked up for something they didn't do?  What if it was your boss put on remand for 10-months causing you and all your colleagues to lose your jobs and ultimately your family to lose their home... does locking everybody up accused of a crime still sounds like a good plan?

So, bail is something that really never will be perfect and will always attract headlines when it goes wrong.


  1. Do what the Scots do. 40 days maximum inside for a summary charge, 110 days on indictment, if the trial does not start within the time limit the accused goes free. They manage it, why not the English?

  2. "However, bail was refused because this particular client has made a habit of breaching his bail and the courts have simply run out of patience with him, so now he gets to spend time in prison for something I actually think he didn't do."

    He can always consider it belated punishment for previous breaches that went unpunished ;)

  3. I sometimes remind colleagues that all bail is a calculated risk, and the bench gets no credit for getting it right, but ends up all over the Mail , branded as idiots when it goes wrong.

  4. Anon #1, in England and Wales we also have a time limit for how long people may be kept in custody. However, they can be extended and frequently are extended.

    If we had 40 days for summary and 110 for indictments nobody would be tried while in custody! In most mags courts there is at least a 2 month wait for simple trials and my diary is already filling up with Crown Court trials for spring 2012!!

    Bystander, you are quite right. But, it's your job and you wanted it ;)

  5. Is that the same Tony Nayani who was a consultant psychiatrist at the Royal Free in London in the mid-90s?


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