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Bail

“Bail” is the term for being let out of custody (“custody” is where a person is held either in Police cells or a gaol/prison) .

You are on bail after you sign a promise to turn up on the next Court date for your matter and to obey any conditions of your bail.

Often matters can take a long time to finish, especially if they are going to trial or contest and it is important that people try to get bail if they can do so.

There is a presumption that you should get bail unless you fall into particular categories (i.e. certain serious charges, if you are already on bail, you threatened witnesses etc) where it will be necessary to show cause or exceptional circumstances as to why you should be released.

The court will refuse bail if they believe there is an unacceptable risk that you will not turn up to the next court date, or they believe that you may commit other offences if released, or endanger the public, interfere with witnesses or otherwise obstruct the course of justice.

Your best chance of getting bail is generally on your first attempt and it is important to have everything in place to give the Magistrate or Judge good reasons to release you.

A Magistrate or Judge has to decide that you should be on bail. It is not the decision of the Police although their view carries some influence

Granting of bail

Bail can be granted in the following ways:

Contested Bail application
Uncontested bail application
Own Undertaking
With Conditions
With a Surety
Own deposit
Show Cause
Exceptional circumstances
Appeal Bail

Appealing a refusal of bail

You can appeal a decision not to grant you bail in the Supreme Court.

The law in relation to bail is mainly covered in The Bail Act 1977 but as with all these matters you should discuss this with your lawyer.

This is just an overview of Bail and is a starting point for you to understand what the terms used mean.

Contested Bail application

This is where the person who has charged you is opposing you being released on bail.
Generally bail applications follow this procedure

1. The prosecutor will outline the reasons bail is opposed

2. The Informant (the person who charged you) will tell the Magistrate or Judge the reasons they think you should not get bail.

3. Any other witnesses will be called by the Prosecutor (the victim, other Police etc).
Your lawyer will question both these witnesses and the Informant with the aim of showing that even given their concerns you should get bail

4. You or witnesses on your behalf will tell the Magistrate details about you (about your health, or that you have stable housing and a good job etc). The prosecutor will question your witnesses.

5. Your lawyer will then tell the Magistrate or Judge why you should be released on bail.

6. The prosecutor will tell the Magistrate or Judge why you should not be released

7. The Magistrate or Judge will make a decision to grant bail or not.

Uncontested bail application

An uncontested bail application is one where the prosecutor and Informant are not opposing bail being granted. While this puts you in a much better position it does not mean that you automatically get bail.

It is for the Magistrate/Judge to make the decision as to whether you get bail and the fact that it is uncontested is only one factor for them to take into account.

On own undertaking

The Court can bail you on your own undertaking. This means that you sign a promise to turn back up at Court on a different date.

With conditions

A Bail with conditions is one where you are granted bail on that basis that you comply with conditions imposed on you. The court may impose any number of conditions that it considers appropriate to you and to the offences you are charged with.

This may include a curfew, reporting a number of days a week to a police station, or the requirement not to contact or interfere with witnesses. The Court might also decide that you have to stay at a drug or alcohol rehabilitation centre.

Surety

A Court may decide that you can only get bail if you agree to arrange a surety.

A surety is a person who agrees to provide security (money or assets) to the Court to
ensure that you turn up to Court.

The amount of the security will be fixed by the Court and the person who provides the undertaking must satisfy the Court that they can provide the fixed amount.

This is usually done by providing money or lodging title documents to prove they have assets to the value of the security.

If the person charged does not appear at Court, the person giving the undertaking may lose their money or have their assets sold to pay the security to the Court.

If you have bail on a surety you need the surety to turn up to Court whenever you intend to vary the bail

Own Deposit

This is where you are granted bail on the basis that you lodge money or property with the court.

This is very similar to a Surety, excepting that the security is provided by you rather than someone else.

If you do not appear at your next Court date you may forfeit the amount lodged.

Show Cause

When you are is a show cause situation you must show the Magistrate or Judge reasons why your detention in custody is not justified. A show cause bail application is one where the Court no longer is presuming that you should bail.

It is not capable of being precisely defined.

It can be established by showing that there are a number of factors that make your detention unjustified (i.e. the strength of the case against you, your age, work, lack of prior convictions)

Exceptional circumstances

Exceptional circumstances bail applications are ones where you have to show that your detention is not justified because there are exceptional circumstances about you or the offence. It is the highest test for a person trying to get bail and is extremely hard to establish.

It is not precisely defined by the Courts and your lawyer will be able to tell you what is not exceptional but not what is.

Examples of offences that may put you in an exceptional circumstances position are murder or trafficking in commercial quantity of drugs.

On a murder charge only the Supreme Court can grant bail.

Appeal Bail

If a Magistrate imprisons you it is possible to apply for appeal bail. The decision is one for the Magistrate who imprisons you and the important factors are the same as in the original granting of bail.

Generally if you were on bail when you arrived at Court and you had been answering your bail (complying with conditions , reporting as ordered) and there is some possible merit in your appeal the Magistrate will grant appeal bail.

If you are given a sentence that will be finished by the date of the appeal a Magistrate should give you bail. As with any grant of bail there are a number of circumstances involved and you should discuss all the possibilities with your lawyer.

If you are sentenced to be imprisoned by the County Court you can apply for appeal bail if you are appealing to the Court of Appeal.

It is only in exceptional circumstances that the Court will grant bail and it is very difficult to establish exceptional circumstances.

It is very rare for bail to be given on an appeal to the Court of Appeal.