The Law Commission

PART IV

EXCEPTIONS TO THE RIGHT TO BAIL (2):
DEFENDANT ON BAIL AT THE TIME OF THE ALLEGED OFFENCE

4.1      In English law, the right to bail^[1] is subject to paragraph 2A of Part I of Schedule 1 to the Bail Act,^[2] which provides:

The defendant need not be granted bail if –

(a) the offence is an indictable offence or an offence triable either way; and

(b) it appears to the court that he was on bail in criminal proceedings on the date of the offence.^[3]

The consultation paper

4.2      In the consultation paper we argued that, although the ECtHR has recognised that a risk that, if granted bail, the defendant would commit an offence can justify detention, the facts specified in paragraph 2A cannot in themselves constitute a ground for detention under the Convention. The fact that the defendant was on bail at the time of the commission of the alleged offence might be a relevant factor in weighing the risk of the defendant committing an offence whilst on bail, but it is not in itself equivalent to such a risk.
4.3      Domestic law has already made provision for bail to be refused because of a risk of future offences in paragraph 2(b) of Part I of Schedule 1.^[4] The text of paragraph 2A would not be out of place in paragraph 9, which lists a number of factors to be considered in taking the decisions required by paragraph 2. We argued that it was both inappropriate and unnecessary for it to be listed as a separate ground in paragraph 2A unless a court could properly refuse bail on that ground alone, where none of the other exceptions arose. If a court were to refuse bail solely because the defendant was already on bail, and there were no substantial grounds to believe that, if granted bail, the defendant would commit an offence, this would be a breach of Article 5.^[5] Thus we concluded that, structurally, the requirement was placed in the wrong paragraph of Schedule 1. It should have been added to paragraph 9.
4.4      We therefore proposed that

(1) paragraph 2A of Part I of Schedule 1 of the Bail Act 1976 should be repealed; and

(2) paragraph 9 of Part I should be expanded to include, within the list of considerations to be taken into account in taking the decisions required by paragraph 2, whether the defendant was on bail at the time of the alleged offence.

Analysis of responses

4.5      Most respondents agreed with this proposal, though in some cases (notably the Magistrates' Association, ACPO and the Police Federation) with a degree of reluctance. Only four dissented. Of those four, the DTI, the CPS and the Home Office emphasised that paragraph 2A did not oblige the court to refuse bail, but merely indicated that it might do so having regard to the relevant considerations set out in paragraph 9. They argued that this combination prevented the decision not to grant bail from being taken solely on the basis of the defendant's bail status at the time of the alleged offence.

Our views

4.6      In our view this dissenting argument is not convincing. Read literally, paragraph 2A permits the court to withhold bail in the circumstances specified, even where no other ground for detention exists. The fact that the court is not obliged to withhold bail, but has a discretion not to do so, is not the point. Paragraph 2A elevates to the status of an independent ground that which can, in truth, only be a factor which the court ought to take into account as relevant to the question whether there are substantial grounds for believing that, if granted bail, the defendant would commit an offence.
4.7      The important questions for us, however, are (a) whether courts are in practice likely to refuse bail solely on the basis of the facts specified in paragraph 2A, and (b) whether such a decision would be permissible under English law.
4.8      As to (a), the CPS thought it unlikely that bail would ever be refused on the basis of the facts specified in paragraph 2A alone, and we think they are right. Their view was reinforced by the responses we received from the Magistrates' Association and ACPO, both of whom, though agreeing with our analysis of the law, thought it unlikely that the legislative amendments which we were proposing would make any difference to actual decisions. We believe that the vast majority of courts addressing questions of bail do make the connection between the grounds set out in paragraph 2A and those set out in paragraph 2(b). There will seldom, if ever, be cases where a person is denied bail under paragraph 2A where paragraph 2(b) is not made out. It is inevitable, however, that the prosecution will be tempted to open its case in opposition to a bail application by reminding the judge or the magistrates that the offence was allegedly committed whilst the defendant was on bail so that the "presumption of bail" has been "lost". This loss of presumption may colour the way in which the remainder of the application is approached by the court. Thus the question is not wholly academic, as it may make a difference in a marginal case.
4.9      As to (b), paragraph 2A gives the court a discretion not to grant bail to a person who falls within its remit. The paragraph must be "read down" so that it does not permit detention where this would breach the ECHR.^[6] Furthermore, under section 6 of the HRA, the court is obliged to exercise its discretion in a way that is compatible with the Convention.^[7]

Conclusion

4.10      In our view paragraph 2A is capable of being applied, and must be applied, in a Convention-compliant manner. The application of the Convention requirements for pre-trial detention that we identified in Part II means that a court should not exercise its discretion to refuse bail solely on the basis of paragraph 2A. A defendant should be detained under that paragraph only where the court is also relying on another ground for detention specified in Part I of Schedule 1 to the Bail Act, such as that provided for in paragraph 2(b). A decision to refuse bail solely because the circumstances set out in paragraph 2A exist would not only infringe Article 5, but would also be unlawful under sections 3 and 6 of the HRA.
4.11      The fact that the defendant was on bail at the time of the alleged offence should not, therefore, be regarded as an independent ground for the refusal of bail. It is just one of the considerations which the court should take into account when considering withholding bail for one of the purposes recognised by both English law and the ECtHR, such as a real risk that, if granted bail, the defendant would commit an offence.
4.12      If these guidelines are followed, it is highly unlikely that paragraph 2A will be applied in a way that would be incompatible with Article 5. Nevertheless, it must be recognised that paragraph 2A is misleading. A straightforward reading of the provision, without the aid of the HRA, suggests that the fact that the defendant was on bail at the time of the alleged offence can itself be an independent ground for the refusal of bail. 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.

(Recommendation 1)

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Note 1    Under the Bail Act 1976, s 4.    [Back]

Note 2    Inserted by Criminal Justice and Public Order Act 1994, s 26. In the second reading debate in the House of Commons, the then Home Secretary (the Rt Hon Michael Howard QC MP) promoted this provision by saying: It is estimated that 50,000 offences are committed every year by people on bail. … [T]he Bill removes the presumption in favour of bail for those charged with serious offences that appear to have been committed while the defendant was on bail. Hansard 11 January 1994, vol 235, col 25.    [Back]

Note 3    The word “offence” includes an alleged offence: Bail Act 1976, s 2(2).    [Back]

Note 4    See para 3.1 above.    [Back]

Note 5    In the consultation paper we also suggested that to rely on para 2A offended against the presumption of innocence. We are now persuaded, however, that this concern was overstated. A person who is charged is under reasonable suspicion of having committed an offence, and the ECtHR has repeatedly stated that this is a proper starting point for a decision, on relevant and sufficient grounds, to refuse bail.    [Back]

Note 6    See paras 1.25 – 1.27 above. The Foreign and Commonwealth Office agreed that para 2A could not itself constitute a ground but only a factor, but wondered whether it might be “read down” in a manner compatible with Article 5.    [Back]

Note 7    See paras 1.28 – 1.31 above.    [Back]