The Law Commission

PART XIV

CONCLUSION AND RECOMMENDATIONS

Conclusion

Although it has not been our remit in this project to carry out a systematic review of the law of bail, our work has led us to the view that the Bail Act 1976 is not happily drafted. Furthermore, although we have concluded that the legislation can be applied so that the Convention rights are not violated, we nevertheless believe that, given the importance of the law of bail to the liberty of the subject, it is desirable that the legislation spell out, accurately, the grounds upon which pre-trial detention may be justified and the factors which may be taken into account in determining whether those grounds have arisen, rather than depending, in a few respects, on section 3 of the HRA for an interpretation that complies with the Convention.

While we have concluded that there is no need for immediate legislation in order for bail decisions to be compatible with the Convention, we make the following recommendations for desirable changes to the existing legislation.

Recommendations

Defendant on bail at the time of the alleged offence

1     . We recommend that the Bail Act 1976 be amended to make it plain that the fact that the defendant was on bail at the time of the alleged offence is not an independent ground for the refusal of bail, as paragraph 2A of Part I of Schedule 1 to the Bail Act may appear to suggest, but is one of the considerations that the court should take into account when considering withholding bail on the ground that there is a real risk that the defendant will commit an offence while on bail.

(paragraph 4.12)

Arrest under section 7

2     . We recommend that

(1) paragraph 6 of Part I of Schedule 1 to the Bail Act 1976 be repealed; and

(2) paragraph 5 of Part II of Schedule 1 to the Bail Act 1976 be amended by adding a requirement that the court must be 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 while on bail, or interfere with witnesses or otherwise obstruct the course of justice.

(paragraph 7.35)

Bail conditions

3     . We recommend that the Bail Act 1976 be amended to empower the police and the courts to impose such conditions as appear necessary for the defendant's own protection, consonant with the exception to the right to bail at paragraph 3 of Part I of Schedule 1 to the Bail Act.^[1]

(paragraph 9A.27)

(Signed) ROBERT CARNWATH, Chairman
HUGH BEALE
CHARLES HARPUM
MARTIN PARTINGTON
ALAN WILKIE

MICHAEL SAYERS, Secretary
23 May 2001

Note 1    It will be necessary for the police and the courts to interpret this power in the same way that they are required to interpret that exception.    [Back]