Bail Applications

Introduction

Whether a defendant awaits trial in custody or in the community is one of the most consequential decisions in the criminal process, and it is a staple of FLK2. This chapter examines **bail** under the **Bail Act 1976**: the **general right to bail** under **s. 4**, the **exceptions** in **Schedule 1** (the **substantial grounds** test for indictable imprisonable offences and the narrower grounds for non-imprisonable offences), **conditional bail** under **s. 3(6)** (including **sureties** and **securities**), the **procedure** for applying for bail, the **two-argument rule** under **Schedule 1, Part IIA**, **appeals** against bail decisions (defence appeal under **s. 81(1)(g) Senior Courts Act 1981** and prosecution appeal under the **Bail (Amendment) Act 1993**), and the consequences of **absconding** (**s. 6**) and **breach of bail conditions** (**s. 7**).

Assessment focus

For the SQE1 FLK2 assessment, you must be able to **apply** the Bail Act 1976 to realistic client-based scenarios. The assessment frequently tests the **starting presumption in favour of bail** and the **burden on the prosecution** to establish a Schedule 1 exception, the **substantial grounds** test and the **paragraph 9 factors**, the **narrower grounds** for non-imprisonable offences (where commission of further offences and witness interference are **not** available grounds), the **two-argument rule** and the need to identify a **change in circumstances**, and the **distinct routes of appeal** for the defence and the prosecution. A recurring trap is confusing **absconding** under **s. 6** (a criminal offence) with **breach of a condition** under **s. 7** (not an offence, but grounds for arrest and reconsideration). Questions are single best answer questions (SBAQs); this is a **closed-book** assessment, so you must recall the statutory references and consequences from memory.

Study tips

1) Always **start from the presumption of bail** (s. 4): the burden is on the prosecution to establish a Schedule 1 exception. 2) For indictable imprisonable offences, learn the **three grounds** (fail to surrender, commit offences, interfere with justice) and the **substantial grounds for believing** threshold (Sch 1, Pt I, para 2). 3) Structure every bail argument by reference to the **paragraph 9 factors** (nature and seriousness; character, antecedents and community ties; previous bail record; strength of evidence; any other relevant factor). 4) Remember that for **non-imprisonable** offences (Sch 1, Pt II) the court **cannot** refuse bail on the ground of further offences or witness interference. 5) Master the **two-argument rule** (Sch 1, Pt IIA): two full arguments, then a **change in circumstances** is required — the right to apply is **not** lost. 6) Keep the two appeals separate: **defence** appeals to the Crown Court under **s. 81(1)(g) SCA 1981**; the **prosecution** appeals under the **Bail (Amendment) Act 1993** (oral notice at the hearing; D remanded pending appeal). 7) Distinguish **s. 6** (absconding — a criminal offence) from **s. 7** (breach of condition — arrest without warrant; brought before magistrates within 24 hours).