8 Criminal courts and criminal
process
Introduction
The two courts that hear trials of criminal cases are
the Magistrates’ Court and the Crown Court. Which
court is used for the trial is decided by the category
of crime involved in the charge:
★ The least serious summary offences can only be
tried at the Magistrates’ Court.
★ The most serious indictable offences can only be
tried at the Crown Court.
★ Triable-either-way offences may be tried at either
court.
If a defendant pleads guilty to the charge against
them, a sentence will be imposed. Where the accused
pleads not guilty, there will be a trial to decide if the
accused is guilty or not guilty; the burden of proof is
8.1 Role and jurisdiction of the criminal
courts
8.1.1 Magistrates’ Court
There are about 160 Magistrates’ Courts in England
and Wales. They were established as local courts, so
there used to be a Magistrates’ Court in most towns,
while big cities used to have several courts. However,
there has been a severe closure programme and there
are now often large distances between each court.
They deal with cases that have a connection with their
geographical area.
Cases are heard by magistrates, who may either be
legally qualified District Judges or non-legally qualified
lay justices (see Chapter 12 for further details on lay
magistrates). There is also a legally qualified clerk
attached to each court, to give advice on the law to the
lay magistrates.
Magistrates’ Courts have the following jurisdiction:
1 To try all summary cases
2 To try any triable-either-way cases that can be dealt
with in the Magistrates’ Court
3 To deal with the first hearing of all indictable
offences; these cases are then immediately sent to
the Crown Court
Unit 1.2 Machinery of justice
on the prosecution, who must prove the case beyond
reasonable doubt.
The form of the trial is adversarial, with prosecution
and defence presenting their cases and cross-
examining each other’s witnesses, while the role of
the judge or magistrates is effectively that of referee,
overseeing the trial and making sure that legal rules
are followed correctly. The judge or magistrates
cannot investigate the case, nor ask to see additional
witnesses. Guilt will be decided by a District Judge
or lay magistrates in the Magistrates’ Court, and by a
jury in the Crown Court. If a guilty verdict is reached,
a sentence will be imposed. This chapter links to the
key concept of effectiveness and certainty.
4 To deal with all preliminary matters connected to
criminal cases, such as issuing warrants for arrest
and deciding bail applications
5 To try cases in the Youth Court where the defendants
are aged 10–17 inclusive.
The first two categories account for about 97 per cent
of all criminal cases.
8.1.2 Crown Court
The Crown Court sits in about 84 different locations
throughout England and Wales and deals with all
indictable, or serious, offences. It also deals with any
triable-either-way offences that are sent for trial from
the Magistrates’ Court.
All pre-trial matters in cases at the Crown Court are
heard by a judge alone. Also, where a defendant pleads
guilty, the sentence is decided by a judge sitting alone.
However, when a defendant pleads not guilty, a jury is
used to decide the verdict.
The judge will control the court, rule on relevant issues
of law, direct the jury on the law and evidence and, if
the defendant is found guilty, impose a sentence.
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 ▼ Figure 8.1 The parties to a criminal case

8 Key facts
Party Description
Prosecution The Crown Prosecution Service (CPS) initially advises the police on what offence to charge.
Lawyers work for this service. They may direct the police on what evidence is required. It will be
for the police to obtain the evidence. Once the case comes to court, it presents the case and tries
to prove the defendant guilty beyond reasonable doubt.
Defendant This is the person charged with a criminal offence. They do not have to disprove the prosecution
case but to cast sufficient doubt on it.
SECTION 1 ENGLISH LEGAL SYSTEM

8.2 Classification of criminal offences
8.2.1 Summary offences
These are the least serious criminal offences and
have to be tried in the Magistrates’ Courts. They are
subdivided into offences of different ‘levels’ – level 1
being the lowest and level 5 the highest. The use of
levels allows a maximum fine to be set for each level,
which is increased in line with inflation from time to
time. The current maximum fines are:
» level 1: £200
» level 2: £500
» level 3: £1000
» level 4: £2500
» level 5: unlimited.
Examples of summary offences include driving while
disqualified, common assault, being drunk and disorderly
in a public place and theft, including shoplifting, where
the value of the goods stolen is less than £200.
8.2.2 Triable-either-way offences
These offences can be tried in either the Magistrates’
Court or the Crown Court. Triable-either-way offences
include assault causing actual bodily harm, theft and
burglary. However, burglary of a dwelling when violence
or threats of violence are used is an indictable offence.
If it is decided that the case will be dealt with in the
Magistrates’ Court, then the procedure is the same as
for trial of a summary offence. The only difference is
that, if the defendant is guilty, the magistrates have
the power to send the defendant to the Crown Court
for sentencing. The magistrates can only do this if
they think that their powers of sentencing are not
sufficient.
If the case is tried in the Crown Court, the trial will
proceed in the same way as an indictable offence. If
the defendant pleads, or is found, guilty, the judge can
impose any sentence up to the maximum for that offence.
8.2.3 Indictable offences
These are the most serious offences and can only be
tried in the Crown Court.
The first preliminary hearing to establish the
defendant’s identity will take place in the Magistrates’
Court. Following this, all matters relating to the offence
will take place in the Crown Court. If the defendant
pleads not guilty, a jury will decide guilt or innocence
after hearing all the evidence. If the defendant pleads
guilty, the judge will impose a sentence.
The judge, when sentencing, can impose any sentence
up to the maximum which is set by the Act that imposes
the offence. Examples of indictable offences include
murder, manslaughter and robbery.
8.3 Pre-trial processes
8.3.1 Summary offences
At the start of any case, the clerk of the court will
check the defendant’s name and address. The defendant
is then asked to plead guilty or not guilty. Over 90
per cent of defendants in the Magistrates’ Court plead
guilty. The process is then concerned with establishing
an appropriate penalty for the case.
Guilty plea
The usual sequence of events is as follows:
1 The Crown Prosecutor will give the court an outline
of the facts of the case.

▼ Figure 8.2 Categories of criminal offences

Key facts
Type of offence Description
Summary offences The least serious offences that are tried in the Magistrates’ Court
Triable-either-way More serious offences which can be tried in either the Magistrates’ Court or the Crown Court
offences – usually at the option of the defendant
Indictable offences The most serious offences which have to be tried in the Crown Court
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 2 The defendant is asked to agree with those facts.
If they are not agreed, the magistrates may have
to hold an inquiry, called a Newton hearing, to
establish the facts.
3 The defendant’s past record of convictions, if any, is
given to the court.
4 Other information about the defendant’s background
(residential, relationship and especially financial) is
given to the court.
5 Any relevant reports are considered by the
Not guilty plea
When a defendant pleads not guilty, the procedure is
longer, as both prosecution and defence can produce 8
evidence to the court.
Since the burden of proof is on the prosecution, it will
begin the case – usually by making a short speech
outlining what the case is about and what it hopes to
prove. Prosecution witnesses will then be called to
give evidence, and the prosecutor will question each to

Unit 1.2 Machinery of justice

magistrates; these may include a pre-sentence report establish what they saw and heard. This is called the
prepared by a probation officer and/or a medical examination in chief.
report on the defendant’s mental health. After the prosecution finishes the examination in chief
6 The defendant or any defence lawyer can then of a witness, the defence can then cross-examine that
explain any matter that might persuade the witness to test their evidence and try to show that it is
magistrates to give a lenient sentence. This is called not reliable. The prosecution may also produce relevant
making a speech in mitigation. exhibits, such as property found in the possession of the
7 The magistrates decide the sentence. defendant or documents that help establish their case.
At the end of the prosecution case, the defence can
PLEA submit to the magistrates that there is no case to
answer and that the case should be dismissed at this
point. If the magistrates consider there is a case
to answer, the defence can give their evidence to
Guilty Not guilty the court. The defendant will usually give evidence,
though there is no necessity to do so. However, since
the Criminal Justice and Public Order Act 1994, the
Prosecutor Trial with magistrates can draw their own conclusions from the
outlines prosecution fact that the accused stays silent.
facts of case evidence and
defence evidence If the defendant does give evidence, cross-examination
by the prosecutor can take place. The defence can call
witnesses and produce any evidence that it believes will
Decision by the
help to disprove the prosecution’s case. Once all the
magistrates
evidence has been given, the defence has the right to
make a speech pointing out the weaknesses of the case
to the magistrates and try to persuade them to acquit
the defendant. Further speeches are not usually allowed,
Guilty Not guilty
unless there is a point of law to be argued.
The magistrates then decide if the defendant is guilty
or not guilty. If they convict, they will then hear about
Past record Past record Free to go
any past criminal record and may also look at reports
and hear a speech in mitigation from the defence. They
will then pass sentence.
Extra information Extra information
e.g. reports e.g. reports If the magistrates dismiss the case, the defendant is free
to go and cannot usually be tried for that offence again.
▼ Figure 8.4 Proof in criminal cases
Mitigation Mitigation
Key facts
Proof Description
Sentence The burden This is on the prosecution to show that each
Sentence
of proof and every aspect of the allegation is proved.
Beyond This is the level of proof that the prosecution
▲ Figure 8.3 Proceedings for a summary offence in the reasonable must show that the defendant is guilty. It
Magistrates’ Court
doubt is a high standard, as the consequences of a
guilty verdict are severe.

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 8.3.2 Triable-either-way offences
8 As set out in Section 8.2.2 above, these offences can be
tried in either the Magistrates’ Court or the Crown Court.
Magistrates’ Court trial
If it is decided that the case will be dealt with in the
Magistrates’ Court, then the procedure will be the same
as for summary offences. The only difference is that, if
the defendant is guilty, the magistrates have the power
to send the defendant to the Crown Court for sentencing.
SECTION 1 ENGLISH LEGAL SYSTEM
will hold a plea before venue and, if the defendant pleads
not guilty, a mode-of-trial hearing. If, at this hearing, it
is decided that the case is to be tried in the Crown Court,
the magistrates will then transfer the case accordingly.
8.3.3 Indictable offences
These are the most serious offences and have to be
dealt with in the Crown Court. The defendant will
be produced to the Magistrates’ Court at the first

opportunity after charge for their identity to be

Committal for sentence
If a trial takes place in the Magistrates’ Court and
the defendant is found guilty, the magistrates can
commit the defendant for sentence to the Crown Court.
However, this will only happen if, at the end of a case,
having heard the defendant’s past record, they feel
that their powers of punishment are not sufficient. The
magistrates must be of the opinion that the offence, or
the combination of offences, is so serious that a greater
punishment than they have power to inflict should be
imposed. In cases of violent or sexual offences, the
magistrates may commit for sentence if they think that
a long sentence of imprisonment is necessary to protect
the public from serious harm.
Crown Court trial
Where the defendant elects for trial at the Crown Court,
the magistrates must officially send the case to the
Crown Court. For triable-either-way offences, magistrates
confirmed and bail or custody to be decided. It is
likely that for most indictable offences, the accused
will be remanded in custody. Under s 51 of the Crime
and Disorder Act 1998, a defendant charged with an
indictable offence will be transferred to the Crown
Court immediately from this first hearing.
All subsequent pre-trial matters are heard by a Crown
Court judge alone. Where the defendant pleads guilty,
the sentence is dealt with by a judge alone. When a
defendant pleads not guilty, a jury is used to decide
guilt or innocence. The Criminal Procedure Rules deal
with all aspects of criminal cases, and their overriding
objective is that ‘criminal cases be dealt with justly’.
Plea and Trial Preparation Hearing (PTPH)
This takes place at the Crown Court as soon as possible
after the case has been sent there from the Magistrates’
Court. An effective PTPH will:

Plea before venue

Defendant is asked whether he
pleads guilty or not guilty

GUILTY NOT GUILTY

Magistrates will hear facts and decide if their sentencing Mode-of-trial hearing magistrates decide whether or not
powers are sufficient to accept jurisdiction

If sufficient, If not, will send ACCEPT REFUSE

will to Crown Court JURISDICTION JURISDICTION
sentence for sentencing

Defendant elects Sent to Crown

place of trial Court for trial

Chooses Chooses
Magistrates’ Courts. Crown Court.
Trial held there Trial held there

▲ Figure 8.5 Procedure for triable-either-way offences

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 » arraign the defendant (take the defendant’s plea),
unless there is good reason not to set the trial date
» identify, so far as can be determined at that stage,
the issues for trial
» provide a timetable for the necessary pre-trial
preparation and give appropriate directions for an
effective trial
» make provision for any Further Case Management
Hearing (FCMH) that may be required, to take place at
the time when it can have maximum effectiveness.
Disclosure by prosecution and defence
Both the prosecution and defence have to make certain
points known to the other before trial. The prosecution 8
must set out all the evidence it proposes to use at the
trial. It must also disclose previously undisclosed material:
‘... which in the prosecutor’s opinion might reasonably
be considered capable of undermining the case for the
prosecution against the accused.’
The defence must give a written statement to the

Unit 1.2 Machinery of justice

The indictment
This document will be prepared before trial and
formally sets out the charges against the defendant.
Although the defendant will have been sent for trial
charged with specific crimes, the indictment can be
drawn up for any offence that the witness statements
reveal. In more complicated cases, the indictment
may have several counts (charges), each relating to a
different offence.
▼ Figure 8.6 Advantages and disadvantages of courts hearing triable either way offences
prosecution that includes:
» the nature of the accused’s defence, including any
legal defences intended to be relied on
» any matters of fact on which issue is taken with the
prosecution
» any point of law to be argued, and the case
authority in support
» any alibi, and the witnesses to support that alibi
(this information allows the prosecution to run
police checks on the alibi witnesses).

Advantages
Magistrates • Trial taking place in (relatively) local court
Court • Less chance of publicity
• Case will be heard quickly
• Shorter trial
• Lower sentencing powers of magistrates
• Greater chance of bail being granted before trial
Crown Court • Greater chance of acquittal by jury or judicial direction
• Greater chance of prosecution accepting plea to
lower charge
• Greater chance of witnesses not attending
• Defence to charge can be fully argued
• Greater chance of receiving legal aid
• Chance of appeal against conviction and/or sentence
Disadvantages
• Less likelihood of legal representation
• Less ability to argue a defence or challenge
witnesses
• Greater chance of being found guilty
• Less chance of appealing against conviction
and/or sentence
• Takes longer for case to reach court
• Greater chance of publicity
• May not be tried locally
• Sentencing powers of judge are greater
• Likely to need legal advice and representation
• Longer trials may involve greater expense
• Lower chance of being granted bail before trial

Initial hearing before magistrates

Case transferred to Crown Court

Plea and Trial Preparation Hearing at

Crown Court before judge

Indictment served; disclosure of

evidence and defence
If defendant pleads not guilty – Crown If defendant pleads guilty – Crown
Court trial before judge and jury Court hearing for sentencing before judge

Appeal against conviction Appeal against

and/or sentence sentence only
Court of Appeal Criminal Division hearing
before three Lord Justices of Appeal

Appeal against conviction only

Supreme Court hearing before five Justices

▲ Figure 8.7 Indictable offence procedure

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 8.4 Appeals
8
8.4.1 Appeals from the Magistrates’ Court to the
Crown Court
This is the normal route of appeal and is only available
to the defence.
If the defendant pleaded guilty at the Magistrates’ Court,
then an appeal can only be made against sentence.
The Crown Court can confirm the sentence or they can
SECTION 1 ENGLISH LEGAL SYSTEM
increase or decrease it. However, any increase can only
be up to the magistrates’ maximum powers for the case.
If the defendant pleaded not guilty and is convicted,
then an appeal can be made against conviction and/or
sentence.
8.4.2 Case-stated appeals
These are appeals on a point of law that go to the
Queen’s Bench Divisional Court, either directly from the
Magistrates’ Court or following an appeal to the Crown
Court. Both the prosecution and the defence can use
this appeal route.
The magistrates (or the Crown Court) are asked to state
the case by setting out their findings of fact and their
decision. The appeal is then argued on the basis of what
the law is on those facts; no witnesses are called. The
appeal is usually heard by a panel of two or three judges
and will be on the basis that the magistrates came
to the wrong decision because they made a mistake
about the law. The Divisional Court may confirm, vary
or reverse the decision, or send the case back for the
magistrates to implement the decision on the law. There
are usually fewer than 100 case-stated appeals made
each year. There is a possibility of a further appeal to
the Supreme Court (formerly the House of Lords).
CASE EXAMPLE
C v DPP (1994)
A 13-year-old boy had been convicted in the
Magistrates’ Court of the offence of interfering
with a motorcycle with intent to commit theft or
to take and drive away without consent. An appeal
by case stated concerned a legal point about the
presumption of criminal responsibility of children
between the ages of 10 and 14. Until this case, it
had been accepted that such a child could only be
convicted if the prosecution proved that the child
knew they were doing wrong. The Divisional Court
held that times had changed and that children were
more mature and the rule was not needed.
The case was further appealed to the House of Lords
who overruled the Divisional Court, holding that the
law was still that a child of this age was presumed
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312098_08_Cambridge_AS_and_A_Level_Law_067-077.indd 72
not to know they were doing wrong, and therefore
not to have the necessary intention for any criminal
offence. The original conviction was confirmed.
Supreme Court
Queen’s Bench Divisional
Court
Case-stated appeal
Crown Court
Case-stated appeal
Defence only
Trial at Magistrates’ Court
▲ Figure 8.8 Appeal routes from the Magistrates’ Court
8.4.3 Appeals from the Crown Court
Supreme Court
Appeal against conviction or acquittal only,
based on issue of law
Court of Appeal Criminal Division
Appeal against conviction and/or sentence
Crown Court
▲ Figure 8.9 Routes of Appeal from a Crown Court trial
» Appeals by the defendant: a defendant can appeal
against conviction and/or sentence to the Court of
Appeal (Criminal Division).
» Leave to appeal: the Criminal Appeal Act 1995
requires that the defendant must obtain leave to
appeal, so that cases without merit are filtered out
and the court’s time is saved.
» The Criminal Appeal Act 1995: this simplified the
grounds under which the Court of Appeal can allow an
appeal: ‘if they think that the conviction is unsafe’.
There is a broad interpretation of ‘unsafe’ after the
incorporation of the European Convention on Human
Rights; a conviction is now held to be ‘unsafe’ where
the defendant has been denied a fair trial.
» New evidence: this must appear to be capable of belief
and afford a ground for an appeal. It is considered
alongside whether it would have been admissible at
the trial and why it was not produced at that trial.
15/04/21 2:52 PM
 8.4.4 Court of Appeal’s powers
The Court of Appeal can:
» allow a defendant’s appeal and quash a conviction, or
» vary the conviction to that of a lesser offence of which
the defendant could have been convicted, and/or
» decrease, but not increase, any sentence imposed
» dismiss the appeal
» order that there should be a retrial of the case in
front of a new jury.
Appeals by the prosecution
The prosecution has limited rights to appeal against an
acquittal as follows:
1 Where the acquittal was the result of the jury being
‘nobbled’. This is where one or more jurors are bribed
or threatened by associates of the defendant.
2 Where there is new and compelling evidence of
the acquitted person’s guilt, and it is in the public
interest for the defendant to be retried. This power
is given by the Criminal Justice Act 2003 and it
is only available for some 30 serious offences,
including murder, manslaughter, rape and terrorism
offences. It is known as ‘double jeopardy’, since the
defendant is being tried twice for the same offence.
The Director of Public Prosecutions has to consent to
the reopening of investigations in the case.
CASE EXAMPLE
Stephen Lawrence
In 2011, two defendants who had been previously
acquitted of the murder of black teenager Stephen
Lawrence were retried using the double-jeopardy
rules and convicted some 19 years after the
murder. Part of the new evidence was a DNA
match with Stephen’s blood, found on the clothing
of one of the defendants. This evidence became
available due to improved DNA testing techniques.
CASE EXAMPLE
Michael Weir
Michael Weir was jailed for life for the murders
of two pensioners in a case that broke new legal
ground. He was convicted 20 years after the killings
in a unique double-jeopardy case. His original
murder conviction was thrown out on appeal on a
technicality when prosecutors were late filing legal
papers, despite DNA evidence from a glove found at
the scene linking him to one of the attacks. By 2018,
new DNA evidence linking him to both murders had
been discovered. Weir was the first defendant to be
found guilty of the same murder twice.
312098_08_Cambridge_AS_and_A_Level_Law_067-077.indd 73
Referring a point of law
Following an acquittal, under s 36 of the Criminal
Justice Act 1972 the Attorney-General can refer a point 8
of law to the Court of Appeal, in order to get a ruling
on the law. The decision by the Court of Appeal on that
point of law does not affect the acquittal, but it does
create a precedent for any future case involving the
same point of law.
Against sentence
Unit 1.2 Machinery of justice
Also under s 36 of the Criminal Justice Act 1988, the
Attorney-General can apply for leave to refer an unduly
lenient sentence to the Court of Appeal.
Cases are brought to the Attorney-General’s attention by
the Crown Prosecution Service. It is also possible for a
member of the public to contact the Attorney-General’s
office, if they feel that the original sentence was unduly
lenient.
Further appeals
Both the prosecution and the defence may appeal from
the Court of Appeal to the Supreme Court, but it is
necessary to have the case certified as involving a point
of law of general public importance, and to get leave
to appeal, either from the Supreme Court or from the
Court of Appeal. An appeal can only be made against
conviction or acquittal. There are very few criminal
appeals heard by the Supreme Court, usually fewer than
20 each year.
The Criminal Cases Review Commission
This review body was established by the Criminal Appeal
Act 1995. It has the power to investigate possible
miscarriages of justice (including summary offences)
and to refer cases back to the courts. In order for
the commission to be able to refer a case, there must
normally have already been an appeal to the Court of
Appeal, although the commission has the discretion to
refer a case where ‘there are exceptional circumstances’.
8.5 Police bail: PACE 1984 and the
Criminal Justice and Public Order Act
1994
8.5.1 Bail
An important pre-trial matter to be decided in every
criminal case is whether the accused should stay in
custody while awaiting trial or whether bail should be
granted. A person can be released on bail at any point
after being arrested by the police.
Being given bail means that the person is allowed
to be at liberty until the next stage in the case. The
right to liberty is a human right and the right to bail
is therefore part of that right. This means that even
for serious offences, bail must be available in suitable
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18/01/21 9:46 PM
 cases. However, in some situations the public needs to
be protected from a potentially dangerous person. In
8 such circumstances, the right to bail is restricted.
8.5.2 Police powers to grant bail
The police may release a suspect on bail before any
charge is brought, while further inquiries are made.
This means that a suspect is released from police
custody and conditions can be imposed (see below).
SECTION 1 ENGLISH LEGAL SYSTEM
The police can also give bail to an accused who has
been charged with an offence. In this case, the
accused is bailed to appear at a Magistrates’ Court
on a set date. The decision on whether to grant bail
is made by the custody officer under s 38 PACE as
amended by the Criminal Justice and Public Order
Act 1994.
The custody officer can refuse bail if the suspect’s
name and address cannot be discovered, or if there is
a doubt as to whether the name and address given are
genuine. Apart from this, the normal principles apply
as to when bail should be granted. These are set out
in the Bail Act 1976. If a suspect, or accused, granted
bail by the police fails to surrender to that bail (that
is, attend the next stage of the case), the police are
given the right to arrest them and they will be charged
with an offence.
8.5.3 Conditional bail
The Criminal Justice and Public Order Act 1994 gave
the police the power to impose conditions on a grant of
bail. The types of conditions include:
» living at a certain address
» surrendering a passport
» reporting at regular intervals to the police station
» getting another person to stand surety.
These conditions can only be imposed in order to make
sure that the suspect:
» surrenders to bail
» does not commit an offence while on bail
» does not interfere with witnesses
» does not interfere in any other way with the course
of justice.
8.5.4 No police bail
Where, having charged an offender with a crime, the
police are not prepared to allow bail, they must bring
the accused in front of the Magistrates’ Court at the
first possible opportunity. If (as usually happens) the
magistrates cannot deal with the whole case at that
first hearing, they must then make the decision as to
whether the accused should be given bail or remanded
in custody. The question as to whether bail should be
given can also be considered by a court at any later
stage of the criminal proceedings.
74
8.5.5 Release under investigation (RUI)
In theory, there is no time limit on police bail to
enable the police to continue their enquiries and
before deciding whether to charge the suspect.
Concern has been expressed at the length of some
police investigations and the need for suspects to
continue to observe bail conditions.
In addition to bail, the RUI procedure has been
introduced, which is less formal than bail, and limited
or no conditions are imposed. This allows the police to
continue their investigations and to recall a suspect
when a decision can be made as to a charge or no charge.
Internet research
Visit the following webpage and answer the questions
that follow.
www.legalcheek.com/2019/06/the-real-reason-why-
fewer-people-are-being-charged-with-offences
1 Why was RUI introduced in 2017?
2 Why might the police need a lot of time to
investigate a suspect’s alleged involvement in a
crime?
3 What does being under RUI mean from the
suspect’s point of view?
4 What issues with RUI are highlighted by the article?
8.6 Bail from the court: the Bail
Act 1976
Section 4 of the Bail Act 1976 gives a general right to
an accused to be granted bail. However, the court need
not grant an accused bail if it is satisfied that there are
substantial grounds for believing that the accused, if
released on bail, would:
» fail to surrender to custody, or
» commit an offence while on bail, or
» interfere with witnesses or otherwise obstruct the
course of justice.
The court can also refuse bail if it is satisfied that the
accused should be kept in custody for their own protection.
If bail is granted by a court and the accused fails to
appear when directed to do so, a warrant can be issued by
the court for the accused’s arrest. On arrest, the accused
will be brought before the court and dealt with straight
away for failing to appear. The court will have to consider
whether the accused should be held in custody pending
trial of the substantive offence, or, less likely, granted bail.
When an accused is granted bail, the prosecution
has the right to appeal to a judge in the Crown Court
against the decision.
 In deciding whether to grant bail, the court will
consider various factors, including the:
» nature and seriousness of the offence (and the
probable method of dealing with it)
» character, antecedents (that is, past record),
associations and community ties of the accused
» accused’s past bail record (if any)
» strength of the evidence against the accused.
Where there is no real prospect that an accused aged 18
and there are grounds for believing that they will not
surrender on this occasion.
A court can make conditions for the granting of bail. 8
These are similar to conditions that can be set by
the police and may include the surrender of passport
and/or reporting to a police station. The court can
also make a condition as to where the accused lives
while on bail; this could be at a home address or at
a bail hostel.

Unit 1.2 Machinery of justice

or over will be given a custodial sentence if convicted,
Renewed applications and appeals
bail must be granted under a new s 5A of the Bail
Normally, only one further bail application can be made
Act 1976, enacted by the Legal Aid, Sentencing and
to the magistrates against refusal of bail, unless there
Punishment of Offenders Act 2012.
is a change of circumstance. The accused can appeal
If an accused is charged with an offence that is not against a refusal to grant bail to a judge at the Crown
punishable by imprisonment, bail can only be refused Court. An accused who has been sent for trial to the
if the accused has previously failed to surrender to bail Crown Court can also apply there for bail.
▼ Figure 8.10 Bail

Key facts
Who can grant • The police
bail? • Magistrates
• Crown Court
Bail Act 1976 There is a presumption in favour of bail.
However:
• For an offence while already on bail, bail can only be given if the court is satisfied there is no
significant risk of further offending.
• There must be exceptional circumstances for bail to be granted for murder, attempted murder,
manslaughter, rape or attempted rape where the defendant has already served a custodial sentence for
such an offence.
When can bail Bail can be refused if there are reasonable grounds for believing the defendant would:
be refused? • fail to surrender
• commit further offences
• interfere with witnesses.
Conditions • Sureties
that can be • Residence in bail hostel
imposed • Curfew
• Surrender of passport etc.
Comment • Some of those in prison are awaiting trial and could have been given bail.
• There is the problem of balancing bail against the need to protect the public.

▼ Figure 8.11 Advantages and disadvantages of bail in criminal justice

Advantages of bail Disadvantages of bail

• Accused is innocent until found guilty and should not be • Accused may interfere with witnesses and/or evidence
held in custody while innocent • Accused may abscond before trial
• Accused can gather evidence and witnesses to support • General public not protected if bail is granted
defence; unrestricted access to legal advice • Accused may commit further offences
• Conditions can be attached to ensure good behaviour
and some control over accused
• Accused can continue living with family and in work

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 ACTIVITY
8 Consider each of the following situations and
explain, with reasons, whether you think bail would
be granted or not.
1 Alex, aged 19, is charged with robbery when he
threatened a shopkeeper with a gun and stole
£2000. He has no previous convictions and lives
at home with his mother.
SECTION 1 ENGLISH LEGAL SYSTEM
COMMENT
Balancing conflicting interests
The criminal justice system has to balance the
conflicting interests of the accused (who is presumed
innocent at this stage and entitled to their liberty)
against the needs of the public to be protected from
potentially dangerous criminals. For this reason,
there are restrictions on bail being granted and
conditions on the granting of bail.
There are also methods of trying to ensure that an
offender who is given bail will not reoffend. The first
is the provision of bail hostels, where offenders can
8.7 Factors and conditions for bail
8.7.1 Sureties
The court (and the police) can require a surety for the
grant of bail. A surety is a person who is prepared
to promise to pay the court a sum of money if the
accused fails to attend court. This promise is called a
recognisance, and no money is paid unless the accused
fails to answer to bail. This system is different from
that of other countries, especially the USA, where
the surety must pay the money into court before the
accused is released on bail, but gets the money back
when the accused attends court as required.
8.7.2 Repeat serious offences
Where an accused is charged with murder, attempted
murder, manslaughter, rape or attempted rape and they
have already served a custodial sentence for a similar
offence, they only have the right to bail if the court
thinks that there are exceptional circumstances.
8.7.3 Offence committed while on bail
Where an accused aged 18 or over is on bail and
commits a further offence, s 14 of the Criminal Justice
Act 2003 amends the Bail Act 1976 to read:
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2 Homer, aged 43, is charged with three offences
of burglary. He has been convicted of burglary
on two occasions in the past. He is in a stable
relationship with a young family.
3 Melanie, aged 21, is charged with theft of items
from a sportswear shop. She is unemployed and
homeless. She has no previous convictions.
live while they are on bail. The second is the use of
electronic tagging. This allows the police to know if
any conditions attached to bail are broken, such as
flouting curfew.
It is argued that too many people are refused bail,
as about 10 per cent of those held in prison are the
accused who are awaiting trial and remanded in
custody. Statistics show that one in five of these will
be found not guilty, but will not be entitled to any
compensation for the time spent in custody. Even
where the accused is later found guilty, another one
in five will be given non-custodial sentences.
‘He may not be granted bail unless the court is satisfied
that there is no significant risk of his committing an
offence on bail (whether subject to conditions or not).’
8.7.4 Restrictions on bail for adult drug users
Section 19 of the Criminal Justice Act 2003 amended
the Bail Act 1976 to place restrictions on bail for adult
offenders who have tested positive for specified Class A
drugs where:
» the offender is charged with either possession or
possession with intent to supply a Class A drug, or
» the court is satisfied that there are substantial
grounds for believing that the misuse of a Class A
drug caused or contributed to the offence, or that
the offence was motivated wholly or partly by the
intended misuse of such a drug, and
» the defendant has refused to agree to participate
in an assessment or follow-up in relation to their
dependency upon or propensity to misuse specified
Class A drugs.
Such a defendant may not be granted bail unless the
court is satisfied that there is no significant risk of
them committing an offence on bail (whether subject to
conditions or not).
18/01/21 9:46 PM
 TARGET SKILLS TEST YOURSELF
1 State what ‘being granted bail’ means. 1 Describe, including examples, the meanings
8
2 Identify the test used to decide if an appeal of summary, triable-either-way and indictable
against conviction or sentence is taken by a offences.
defendant convicted in the Crown Court. 2 Describe the rights of a convicted person to
3 Assess the value of the Criminal Cases Review appeal.
Commission.
3 Describe the role of Crown Courts in the
4 Consider how the granting of bail balances
criminal justice process.

Unit 1.2 Machinery of justice

the conflicting interests of an accused and the
4 Describe the issues that a court will take into
state.
account for granting bail.
5 Assess the different procedures involved in a
criminal trial by magistrates and a Crown Court
STRETCH AND CHALLENGE trial before a judge and jury.

Bernard tells you he has been placed under RUI by

the police and told to return to the police station in EXAM-STYLE QUESTIONS
3 months’ time. He is confused what this means.
Write some notes for him explaining what RUI 1 Describe the role of Magistrates’ Courts in the
means and the effect that it might have on his criminal justice process.
family life and work. He is in full-time employment 2 Assess the value of bail in criminal justice.
as a carer for vulnerable children, has a settled
home, he carries out voluntary work in a local
hospital and is married with a family.

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