(from Blackstone’s Custody Officer Manual by Huw Smart 2006)
Conditional bail
Legislative provisions
S.3A(5) Bail Act 1976
Where a constable grants bail to a person no conditions shall be imposed under subsections (4), (5), (6) or (7) of s.3 of this Act unless it appears to the constable that it is necessary to do so for the purpose of preventing that person from –
(a) failing to surrender to custody, or
(b) committing an offence while on bail, or
(c) interfering with witnesses or otherwise obstructing the course of justice, whether in relation to himself or any other person.
Section 3A Bail Act 1976
1. S 3 of this Act applies, in relation to bail granted by a custody officer under part IV of PACE 1984 in cases where the normal powers to impose conditions of bail are available to him, subject to the following modifications.
2. Subsection (6) does not authorise the imposition of a requirement to reside in a bail hostel or any requirement under para. (d) or (e)
Section 47(1A) PACE
The normal powers to impose conditions of bail shall be available to him where a custody officer releases a person on bail under s.37(7)(a) above or s.38(1) above (including that subsection as applied by s.40(10) above) but not in any other cases. In this subsection “the normal powers to impose bail” has the meaning given in s.3(6) of the Bail Act 1976
Section 3A(4) Bail Act 1976
Where a custody officer has granted bail in criminal proceedings he or another custody officer serving at the same police station may, at the rquest of the person to whom it was granted, vary the conditions of bail and in doing so he may impose conditions or more onerous conditions.
Section 7(3)(b) Bail Act 1976
A person who has been released on bail in criminal proceedings and is under a duty to surrender into the custody of a court may be arrested without warrant by a constable –if the constable has reasonable grounds for believing that that person is likely to break any of the conditions of his bail or has reasonable grounds for suspecting that that person has broken any of those conditions.
Page 425
“…but it is clear that imposing bail conditions should be viewed as an alternative to authorising detention after charge. When a court issues bail conditions, it must consider the same requirements as in s.3A(5) above (s3(6) of the Bail Act 1976) …”
“… Provided the custody officer or the court can justify a particular condition, there is no actual limit as to the kind of condition that may be imposed”…
Since conditional bail is an alternative to continued detention I looked at what Huw Smart has to say about remand in custody:
Section 38(1) PACE
Where a person arrested for an offence otherwise than under a warrant endorsed for bail is charged with an offence, the custody officer shall (subject to s.25 of the CJPOA 1994 [making bail virtually impossible for various very serious offences]), order his release from police detention, either on bail or without bail, unless-
(i) name or address cannot be ascertained…..
(ii) the custody officer has reasonable grounds for believing that the person arrested will fail to appear in court to answer to bail;
(iii) 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 in necessary to prevent him from committing an offence;
(iv) 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 him from causing physical injury to any other person or from causing loss of or damage to property;
(v) the custody officer has reasonable grounds for believing that the detention of the person arrested is necessary to prevent him from interfering with
(vi) the admin. of justice or with the investigation of offences or of a particular offence; or
(vii) the custody officer has reasonable grounds for believing that the detention of the person arrested is necessary for his own protection.
From all this I gather our bail conditions were unlawful. He should have gone through these steps:
Unconditional release is the norm
Conditions can only be imposed if he is thinking he must remand in custody
Non imprisonable offence (which I was told very specifically is the case with byelaws, hence no fingerprinting etc) – only reasons = to prevent him causing physical injury to another person; or loss/damage to property; or interfering with admin. justice or investigation; or for own protection.
Since none of these conditions apply then he has no power to impose bail conditions.
p.392/3
When detention is necessary to prevent a further offence
"Evidence to detain a person under ss.(iii) above may also be provided by the PNC. The custody officer will need to examine the detainee's previous offending history to decide whether there are reasonable grounds to believe that if s/he were to be released on bail, further offences may be committed. The custody officer should take into account the offence for which the detainee has been charged on this occasion. For example, if the detainee only has previous convictions for shoplifting, and has been arrested and detained for a burglary, it would be difficult to justify further detention to prevent him/her from committing further burglaries. However, each case has to be taken on its merits. It should be noted that this section only applies to imprisonable offences committed by the detainee.
Where the custody officer believes that the detainee must be prevented from causing physical injury to any other person or from causing loss of or damage to property, statements from the investigating officer and witnesses may provide the necessary grounds. It should be noted that this section applies to non-imprisonable offences committed by the detainee
Criminal Justice and Public Order Act 1994
5A. — (1) Section 5 of this Act applies, in relation to bail granted by a custody officer under Part IV of the Police and Criminal Evidence Act 1984 in cases where the normal powers to impose conditions of bail are available to him, subject to the following modifications.
(2) For subsection (3) substitute the following—
"(3) Where a custody officer, in relation to any person,—
(a) imposes conditions in granting bail in criminal proceedings, or
(b) varies any conditions of bail or imposes conditions in respect of bail in criminal proceedings,
the custody officer shall, with a view to enabling that person to consider requesting him or another custody officer, or making an application to a magistrates' court, to vary the conditions, give reasons for imposing or varying the conditions."
(3) For subsection (4) substitute the following—
"(4) A custody officer who is by virtue of subsection (3) above required to give reasons for his decision shall include a note of those reasons in the custody record and shall give a copy of that note to the person in relation to whom the decision was taken."
Judicial studies board website http://www.jsboard.co.uk/magistrates/hrtraining/mf_04.htm
5a Bail Act Applications
Both the Bail Act 1976 and the Convention state that a defendant has the right to bail.
The Bail Act 1976 provides conditions which must be complied with before a person is either remanded in custody or released on conditional bail. In a similar way Article 5 ensures that everyone has the Right to liberty. This Right can only be withheld in accordance with a procedure prescribed by law such as the Bail Act 1976.
For example, in one particular case (Matznetter v Austria 1969) the Court of Human Rights ruled on a remand in custody based on the fear of further offending. The Court of Human Rights stated that this could not be justified if the previous convictions were not comparable, either in nature or seriousness, with the charges preferred against the accused. Magistrates correctly applying the 1976 Bail Act would have come to the same conclusion as the Court of Human Rights. This case shows how much of our legislation is in tune with the Convention.
Archbold Part II – (Bail Act 1976, Schedule 1)
defendants accused or convicted of Non-imprisonable offences
Defendants to whom Part II applies:
1. where the offence or every offence of which the defendant is accused or convicted in proceedings is one which is not punishable with imprisonment the following provisions of the part of this Schedule apply
Exceptions to right to bail
2. The defendant need not be granted bail if-
(a) it appears to the court that, having been previously granted bail in criminal proceedings, he has failed to surrender to custody in accordance with his obligations under the grant of bail; and
(b) the court believes, in view of that failure, that the defendant, if released on bail (whether subject to conditions or not) would fail to surrender to custody.
3. The Defendant need not be granted bail if he is in custody in pursuance of the sentence of a court or of any authority acting under any of the Service Acts.
4. The defendant need not be granted bail if:-
(a) having been released on bail in or in connection with the proceedings for the offence, he has been arrested under s.7 of this Act; and
(b) the court is satisfied that there are substantial grounds for believing that the defendant, if released on bail (whether subject to conditions or not) would fail to surrender to custody, commit an offence on bail or interfere with witnesses or otherwise obstruct the course of justice (whether in relation to himself or any other person)
Bail Act 1976
s.5.5 – must give reasons for imposing conditions via ss.3(4),(5),(6)
s.7 arrest for breach of bail conditions
PACE 1984
s.37(7)(a) – shall be released without charge and on bail for the purpose of enabling the DPP to make a decision under s.37B
s.37B re DPP charging or not, caution or conditional caution
s.37C breach of bail following release under s.37(7)(a) re failure to surrender
s.47 – bail after arrest.
