Skip to main content

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.

Comments

  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?

    ReplyDelete
  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 ;)

    ReplyDelete
  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.

    ReplyDelete
  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 ;)

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

    ReplyDelete

Post a Comment

Popular posts from this blog

Ched Evans

Before I begin, I will say that at around 4,500 words this is probably the longest blog I’ve ever posted but I think it’s all necessary to set the scene for this case and explain the background that has been largely ignored or airbrushed in the press. Despite its length, I have not attempted to include every little detail of either fact or law but have done my best to provide a balanced picture of the Ched Evans case, what happened and why the courts reached the decisions they did. There has been so much written about the Ched Evans case over the past weekend, much of it based on a very shaky grasp of the facts and law, that I decided I would read up about the case and weigh in (hopefully on a slightly firmer footing than most of the articles I’ve read so far).

Broadly speaking there seem to be three groups who have opinions on the case:
1.Sexual violence groups (including people describing themselves as “radical feminists”) who appear to take the view that the case is awful, the Court o…

How do the police decide whether to charge a suspect?

A question I’m often asked by clients (and in a roundabout way by people arriving at this blog using searches that ask the question in a variety of ways), is “how do the police decide whether to charge or take no further action (NFA)?”
What are the options?
Let’s have a quick think about what options are available to the police at the end of an investigation.
First, they can charge or report you for summons to attend court.  Charging means that you are given police bail and are required to attend court in person.  A summons is an order from the court for you to attend or for you to send a solicitor on your behalf.  In many cases where a person is summonsed, the court will allow you the option of entering a plea by post.
Second, you may be given a caution.  These can be a simple caution, which on the face of it is a warning not to be naughty in future, or it can be a conditional caution.  Conditions could include a requirement to pay for the cost of damage or compensation, etc.  Either…

Bid to prevent defendants knowing who accuses them of a crime

When I read The Trial by Kafka and Nineteen Eighty-Four by Orwell, I took them as warnings of how a bad justice system wrecks lives of those caught up in it. Sadly, some Members of Parliament and the House of Lords seem to view the books more as a guide to how they would like our Criminal Justice System to run. Today, I read of plans to hide the names of accusers and witnesses from defendants in a large number of cases. Victims of sexual offences, such as rape, have had the right to lifelong anonymity for many years now. This means that it is a criminal offence to publish information that will lead to a complainant being identified. A Bill currently being considered by Parliament would extend that anonymity to bar defendants and their lawyers knowing the name of the person accusing them. This would apply not only in sexual offences, as has been reported in the press, but also in violent offences.
The anonymity currently offered to victims of sexual offences is not total, the complainant…