Bail: What are bail conditions and how difficult can they be?


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Created on April 28, 2022

In many cases, a person awaiting trial for an imprisonable offence may be subject to conditional bail. Conditions may only be imposed where the court considers it necessary to address risks that would be present when granting unconditional bail. For example, to prevent a defendant from failing to surrender to court, committing further offences, interfering with witnesses, or otherwise obstructing the course of justice.

For example, if someone is charged with an offence against the person, or if a victim is involved, a non-contact condition may be imposed to prevent witness intimidation and reduce the risk of further offences. Likewise, conditions of non-attendance at certain places are likely to be imposed when someone, for example, allegedly steals from somewhere.

In the wake of the Covid-19 pandemic and a backlog stricken criminal justice system, the Article 6 ECHR right that proceedings must be concluded within a reasonable time, is inevitably stretched further and further. It is currently common for individuals to be subject to bail for a year or more.

But how onerous can bail conditions become?

The number of bail conditions that can be imposed on a person is not limited. Pre-trial conditional bail is in many circumstances an alternative to being remanded in custody. Whilst the number of conditions is not limited, consideration should be given to ensure that the objectives of bail are met but not exceeded. These objectives could be:

  1. Risk of Absconding
  2. Risk of Further Offending
  3. Harm to the Victim/Public

The conditions imposed on a defendant should be necessary, reasonable, and proportionate.

Being proportionate to the aim of a condition does not prevent it from becoming a difficult one. For example, an individual may be subject to a number of bail conditions, such as:

  1. Not to have any direct or indirect contact with witnesses
  2. Not to attend a certain address
  3. To sign-on at a local police station numerous times per week during a set time period
  4. Not to enter a county or town
  5. To reside at a certain address

These conditions may be considered proportionate, but nonetheless are incredibly onerous on a person’s life. They essentially control where a person has to be and where a person cannot be, at any given time. In the above example, a person’s work life is likely affected by having to sign on during the middle of the working day, their family life may be affected by having to reside at a certain address or not being allowed to enter a certain place. The combination of these conditions essentially places a person under many constraints.

This sort of combination is not unusual in certain cases and a higher number of conditions are more likely in more severe cases.

Whilst these conditions affect a person’s life pre-trial, if convicted, they do not account for any reduction in sentence or consideration when sentencing.

There is one condition which does have an effect on sentence; electronically monitored qualifying curfews.

Qualifying Curfew Deductions

Section 240A of the Criminal Justice Act 2003 allows for a calculation to be made of time spent subject to a qualifying curfew with electronic monitoring conditions to be deducted from an overall custodial sentence given to an individual on conviction.

This calculation allows for half a day to be deducted from an overall sentence for every full 24 hours on a qualifying curfew. So, if for example, someone was subjected to a qualifying curfew for 50 days, 25 days could be ordered to count towards their custodial sentence.

Qualifying curfews are not deducted from non-custodial sentences, such as a suspended sentence or community orders.

What makes a curfew qualifying?

A qualifying curfew is one that subjects an individual to a curfew for a minimum of 9-hours per day.

This is usually imposed overnight from early evening to early morning.

Should only qualifying curfews give rise to a reduction in sentence?

The position is a difficult one to assess. The major issue for the legislator is where to draw the line? An assessment of how onerous bail conditions are is entirely subjective. For example, a condition of non-contact and non-attendance may mean an individual struggles to see their family. For another, this may not be an issue at all. This assessment is not likely to be one which the court system has time to handle, nor assess and would create an additional burden on their finite resources.

Likewise, the purpose of sentencing guidelines is to ensure that similar cases are treated alike. By allowing ‘credit’ for a subjective assessment, this purpose becomes less clearly defined.

Electronically monitored qualifying curfews, on the other hand, affect different individuals in the same way. They are much more objectively defined, with specific times and electronic monitoring being a trigger for a curfew qualifying. They act as a form of ‘house arrest’ for that specific time and despite differences in housing between individuals, the function is equally the same.

Whilst being subject to pre-trial conditional bail is in many cases very difficult, it would be nearly impossible to calculate the personal pressure it places on individuals’ lives and whether this should account for ‘time spent on remand’. Conditional bail is seen as an alternative to being remanded in custody and the law has kept any reduction in sentence within tightly defined bounds for that reason.

How can we help?

Old Bailey Solicitors has a great deal of experience in bail variations, with a huge amount of success in this field.

If you have been subject to pre-trial conditional bail, you may wish to have these conditions varied or removed, our team of lawyers can advise you on the merits of any application, assist you through the process and represent you in court to apply for a condition to be varied.

If we can be of assistance in relation to any bail variation matter, please do not hesitate to contact our offices.

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