Bail

Traditionally, bail is some form of property deposited or pledged to a court to persuade it to release a suspect from jail, on the understanding that the suspect will return for trial or forfeit the bail (and possibly be brought up on charges of the crime of failure to appear). In some cases, bail money may be returned at the end of the trial, if all court appearances are made, regardless of whether the person is found guilty or not guilty of the crime accused. If a bondsman is used and a surety bond has been obtained, the fee for that bond is the fee for the insurance policy purchased and is not refundable.

In some countries, granting bail is common. Even in such countries, however, bail may not be offered by some courts under some circumstances; for instance, if the accused is considered likely not to appear for trial regardless of bail. Legislatures may also set out certain crimes to be not bailable, such as those that carry the penalty of capital punishment. Even for lesser crimes, bail will not be granted if it is deemed likely that the accused will flee, tamper with evidence, or commit the same offense before trial.

Canada

Persons charged with a criminal offence in Canada have a constitutional right to reasonable bail unless there is some compelling reason to deny it. These reasons can be related to the accused's likelihood to skip bail, or to public danger resulting from the accused being at large. In stark contrast to many other jurisdictions granting a constitutional right to bail, in Canada the accused may even be denied bail because the public confidence in the administration of justice may be disturbed by letting the individual, still legally innocent, go free pending the completion of the trial or passing of sentence (Criminal Code, s. 515 (10)(c)). Sureties and deposits can be imposed, but are optional.

Czech Republic

Instead of remand, a court in the Czech Republic may decide to accept either

• guaranty of a trustworthy person or association or
• a written word of honor of the charged person or
• surveillance of a probation officer or
• a bail.

Bail can be considered when a charged person is held because of concern of possible escape or of a continuation of criminal activity. Bail cannot be considered where there is a concern of influencing witnesses or otherwise frustrating of the proceedings. Bail is also excluded in case of 31 specified serious crimes (e.g. murder, grievous bodily harm, rape, robbery, public endangerment, etc.) when the person is held due to concern of continuation of criminal activity. Bail may be posted either by the charged person, or with his or her consent, by a third party, but this only after this third party has received a thorough briefing regarding the charges and reasons for custody^[8] and possible grounds for the forfeiture of the bail.^[9]

After the bail has been posted, the court must again review the grounds for bail, and must decide either to accept or refuse the bail.^[10] When accepting the bail, the court may also require the charged person to stay in the country.^[11]

The court may decide to rescind the bail if the charged person ^[12]

• escapes, is in hiding or fails to report a change of address and thus frustrates the possibility of delivery of summons or other documents from the court, the prosecution or the police, or
• is at fault for failing to appear for a proceeding, which may not take part without him or her, or
• continues criminal activity, or attempts to finish the crime which he or she had attempted or threatened previously, or
• is evading execution of imprisonment sentence, court ordered fine or other court ordered punishment.

The court holds out on bail as long as the reasons for custody remain (which includes pending of the charges), and in case of conviction until the convict starts serving prison sentence, reimburses the criminal proceedings and/or pays court ordered fine. In case that the court decided also on damages and the aggrieved party asks for it within three months, the bail or its part may be used also to reimburse the damages.^[13] Otherwise, the court returns the bail.

Both the prosecutor and the person in custody may challenge any decision on custody (including bail) by filing a complaint which leads to review by an appellate court.^[14]

England and Wales

History

In medieval England, the sheriffs originally possessed the sovereign authority to release or hold suspected criminals. Some sheriffs would exploit the bail for their own gain. The Statute of Westminster (1275) limited the discretion of sheriffs with respect to the bail. Although sheriffs still had the authority to fix the amount of bail required, the statute stipulates which crimes are bailable and which are not.

In the early 17th century, King Charles I ordered noblemen to issue him loans. Those who refused were imprisoned. Five of the prisoners filed a habeas corpus petition arguing that they should not be held indefinitely without trial or bail. In the Petition of Right (1628) Parliament argued that the King had flouted Magna Carta by imprisoning people without just cause.

The Habeas Corpus Act 1679 states, "A Magistrate shall discharge prisoners from their Imprisonment taking their Recognizance, with one or more Surety or Sureties, in any Sum according to the Magistrate's discretion, unless it shall appear that the Party is committed for such Matter or offences for which by law the Prisoner is not bailable." The English Bill of Rights (1689) states that "excessive bail hath been required of persons committed in criminal cases, to elude the benefit of the laws made for the liberty of the subjects. Excessive bail ought not to be required." This was a precursor of the Eighth Amendment to the US Constitution.

Forms

In England and Wales there are three types of bail that can be given:^[15]

• Police bail where a suspect is released without being charged but must return to the police station at a given time.
• Police to court where, having been charged, a suspect is given bail but must attend his first court hearing at the date and Court given
• Court bail, where having already been in court, a suspect is granted bail pending further investigation or while the case continues

By police before charge

Under the Police and Criminal Evidence Act 1984, the police have power to release a person, who has not been charged, on bail. This is deemed to be a release on bail in accordance with sections 3, 3A, 5 and 5A of the Bail Act 1976.^[16]

By police after charge

After a person has been charged, he must ordinarily be released, on bail or without bail.^[17] Exceptions to this include:

• Difficulty to ascertain a real name or address.
• Reasonable grounds for believing that the person arrested will fail to appear in court to answer to bail.
• In the case of a person arrested for an imprisonable offence, the custody officer has reasonable grounds for believing that the detention of the person arrested is necessary to prevent him from committing an offence.
• In the case of a person arrested for an offence which is not an imprisonable offence, the custody officer has reasonable grounds for believing that the detention of the person arrested is necessary to prevent him from causing physical injury to any other person or from causing loss of or damage to property.
• The custody officer has reasonable grounds for believing that the detention of the person arrested is necessary to prevent him from interfering with the administration of justice or with the investigation of offences or of a particular offence.
• The custody officer has reasonable grounds for believing that the detention of the person arrested is necessary for his own protection. But in the case of an arrested juvenile the exceptions include circumstances where: the custody officer has reasonable grounds for believing that he ought to be detained in his own interests.
• the offence with which the person is charged is murder or treason.^[18]

By a court

Rights

Under current law, a defendant has an absolute right to bail if the custody time limits have expired and otherwise ordinarily a right to bail unless there is sufficient reason not to grant it,^[19]

Any person accused of committing a crime is presumed innocent until proven guilty in a court of law. Therefore, a person charged with a crime should not be denied freedom unless there is a good reason.

The main reasons for refusing bail are that the defendant is accused of an imprisonable offence and there are substantial grounds for believing that the defendant would:

1. Abscond
2. Commit further offences while on bail
3. Interfere with witnesses^[19]

The court should take into account the:

1. Nature and seriousness of the offence or default (and the probable method of dealing with the defendant for it)
2. Character, antecedents, associations and community ties of the defendant,
3. Defendant's bail record, and
4. Strength of the evidence^[19]

The court may also refuse bail:

• For the defendant's own protection
• Where the defendant is already serving a custodial sentence for another offence
• Where the court is satisfied that it has not been practicable to obtain sufficient information
• Where the defendant has already absconded in the present proceedings
• Where the defendant has been convicted but the court is awaiting a pre-sentence report, other report or inquiry and it would be impracticable to complete the inquiries or make the report without keeping the defendant in custody
• Where the defendant is charged with a non-imprisonable offence, has already been released on bail for the offence with which he is now accused, and has been arrested for absconding or breaching bail^[19]

Where the accused has previous convictions for certain homicide or sexual offences, the burden of proof is on the defendant to rebut a presumption against bail.^[20]

The Criminal Justice Act 2003 amended the Bail Act 1976 restricting the right to bail for adults who tested positive for a Class A drug and refused to be assessed or refused to participate in recommended treatment.^[21]

Where a defendant is charged with treason, bail may only be granted by a High Court judge or by the Secretary of State.^[22] Section 115 of the Coroners and Justice Act 2009 prohibits magistrates' courts from granting bail in murder cases.^[23]

Conditions

Conditions may be applied to the grant of bail, such as living at a particular address or having someone act as surety, if the court considers that this is necessary:

• To prevent the defendant absconding
• To prevent the defendant committing further offences while on bail
• To prevent the defendant interfering with witnesses
• For the defendant's own protection (or if he is a child or young person, for his own welfare or in his own interests)^[19]

Failure to comply

Failing to attend court on time as required is an offence, for which the maximum sentence in a magistrates' court is three months' imprisonment, or twelve months in the Crown Court.^[24] (Sentences are usually much shorter than the maximum, but are often custody.) In addition to imposing punishment for this offence, courts will often revoke bail as they may not trust the defendant again. The amended Consolidated Criminal Practice Direction states (at paragraph 1.13.5) that "the sentence for the breach of bail should usually be custodial and consecutive to any other custodial sentence".^[25]

Failing to comply with bail conditions is not an offence, but may lead to the defendant being arrested and brought back to court, where they will be remanded into custody unless the court is satisfied that they will comply with their conditions in future.

India

Indian law stresses the principles of presumption of innocence. The principle embodies freedom from arbitrary detention and serves as a bulwark against punishment before conviction. More importantly, it prevents the State from successfully employing its vast resources to cause greater damage to an un-convicted accused than he/she can inflict on society. While considering bail applications of the accused, courts are required to balance considerations of personal liberty with public interest.^[26] The Supreme Court has laid down in its judgements, ""Personal liberty, deprived when bail is refused, is too precious a value of our constitutional system recognized under Article 21 that the crucial power to negate it is a great trust exercisable, not casually but judicially, with lively concern for the cost to the individual and community. To glamorize impressionistic orders as discretionary may, on occasions, make a litigative gamble decisive of a fundamental right. After all, personal liberty of an accused or convict is fundamental, suffering lawful eclipse only in terms of procedure established by law." The courts have also held that foreign nationals cannot be deprived of the right to seek bail. The Delhi High Court observed, "Law does not permit any differentiation between Indian Nationals and Foreign citizens in the matter of granting bail. What is permissible is that, considering the facts and circumstances of each case, the court can impose different conditions which are necessary to ensure that the accused will be available for facing the trial. It cannot be said that an accused will not be granted bail because he is a foreign national."^[27]

The Code of Criminal Procedure, 1973 does not define bail, although the terms bailable offence and non-bailable offence have been defined in section 2(a) of the Code. A Bailable offence is defined as an offence which is shown as bailable in the First Schedule of the Code or which is made bailable by any other law, and non-bailable offence means any other offence. Further, Sections 436 to 450 set out the provisions for the grant of bail and bonds in criminal cases. The amount of security that is to be paid by the accused to secure his release has not been mentioned in the Code. Thus, it is left to the discretion of the court to put a monetary cap on the bond. The Supreme Court of India has delivered several cases wherein it has reiterated that the basic rule is - bail and not jail. One such instance came in State Of Rajasthan, Jaipur v. Balchand @ Baliay which the Supreme Court decided on 20 September 1977, and held that the basic rule is bail, not jail, except where there are circumstances suggestive of fleeing from justice or thwarting the course of justice or creating other troubles in the shape of repeating offences or intimidating witnesses and the like by the petitioner who seeks enlargement on bail from the court. The bench of Krishnaiyer, V.R. had observed that when considering the question of bail, the gravity of the offence involved and the heinousness of the crime which are likely to induce the petitioner to avoid the course of justice must weigh with the court. Taking into consideration the facts of the case the apex court held that the circumstances and the social milieu do not militate against the petitioner being granted bail.

When a person accused of a crime is arrested, his statement is recorded and information such as the name, residence address, birthplace, charges filed are noted. The police officer may also check back the criminal record if any in the police station and ask for fingerprints to file a case against the accused. Under the Code of Criminal Procedure 1973 (First Schedule), offences have been classified as "bailable" and "non-bailable" offences. In the case of bailable offences, if the accused produces proper surety, and fulfills other conditions, it is binding upon the Investigating officer to grant bail. However, in case of a non-bailable offence, the police cannot grant bail; it can only be granted by a Judicial Magistrate/Judge. The Investigating Officer must produce the accused before the Judicial Magistrate / Judge concerned within 24 hours of his arrest. At that time, the accused has a right to apply for bail. Depending upon the facts of the case, the judge decides whether bail should be granted. If bail is granted the accused must deposit money with the court. Generally, for lesser crimes, a standard amount is asked to be deposited for awarding the bail.

There are some conditions put under section 437 of the Cr.P.C. wherein bail can be requested even for non-bailable offense. In non-bailable cases, bail is not the right of the accused, but the discretion of the judge if regards the case as fit for the grant of bail, it regards imposition of certain conditions as necessary in the circumstances. Section 437(3) elaborates the conditions set by the law to get bail in non-bailable offenses. The sub-section says that when a person accused or suspected of the commission of an offense punishable with imprisonment which may extend to seven years or more or of an offense under Chapter VI, Chapter XVI or Chapter XVII of the Indian Penal Code (45 of 1860) or abatement of, or conspiracy or attempt to commit, any such offense, is released on bail under sub-section (1). However, for that the Court has power to impose any condition which it considers necessary. Some conditions that the court may place while granting bail are to ensure that such person shall attend in accordance with the conditions of the bond executed under this Chapter, or to ensure that such person shall not commit an offence similar to the offence of which he is accused or of the commission of which he is suspected, or otherwise in the interests of justice.

Scotland

Under Scots law, no deposit or pledge of property is asked for; bail is only granted where the court is satisfied the accused will turn up for trial. As only a court can grant bail, the police can grant bail on permission from the court. The crimes of murder and treason are not bailable.

United States

In pre-independence America, bail law was based on English law. Some of the colonies simply guaranteed their subjects the protections of that law. In 1776, after the Declaration of Independence, those that had not already done so enacted their own versions of bail law.

Section 9 of Virginia's 1776 Constitution states "excessive bail ought not to be required..." In 1785, the following was added, "Those shall be let to bail who are apprehended for any crime not punishable in life or limb...But if a crime be punishable by life or limb, or if it be manslaughter and there be good cause to believe the party guilty thereof, he shall not be admitted to bail." Section 29 of the Pennsylvania Constitution of 1776 states that "Excessive bail shall not be exacted for bailable offences: And all fines shall be moderate."

The prohibition against excessive bail in the Eighth Amendment is derived from the Virginia Constitution, on which Samuel Livermore commented, "The clause seems to have no meaning to it, I do not think it necessary. What is meant by the term excessive bail...?" The Supreme Court has never decided whether the constitutional prohibition on excessive bail applies to the States through the Fourteenth Amendment.^[28]

The Sixth Amendment to the Constitution, like the English Habeas Corpus Act of 1679, requires that a suspect must "be informed of the nature and cause of the accusation" and thus enabling a suspect to demand bail if accused of a bailable offense.

Judiciary Act of 1789

In 1789, the same year that the United States Bill of Rights was introduced, Congress passed the Judiciary Act of 1789. This specified which types of crimes were bailable and set bounds on a judge's discretion in setting bail. The Act states that all non-capital crimes are bailable and that in capital cases the decision to detain a suspect, prior to trial, was to be left to the judge.

The Judiciary Act states, "Upon all arrests in criminal cases, bail shall be admitted, except where punishment may be by death, in which cases it shall not be admitted but by the supreme or a circuit court, or by a justice of the supreme court, or a judge of a district court, who shall exercise their discretion therein."

Bail Reform Act of 1966

It should be noted that, although the Eighth Amendment prohibits excessive bail, there is no inherent Constitutional right for a Defendant to be offered bail in the first place. In 1966, Congress enacted the Bail Reform Act of 1966, which changes that by giving non-capital defendants a statutory right where a Constitutional right is lacking, to be released, pending trial, on his personal recognizance or on personal bond, unless the judicial officer determines that such incentives will not adequately assure his appearance at trial. In that case, the judge must select an alternative from a list of conditions, such as restrictions on travel. Individuals charged with a capital crime, or who have been convicted and are awaiting sentencing or appeal, are to be released unless the judicial officer has reason to believe that no conditions will reasonably assure that the person will not flee or pose a danger. In non-capital cases, the Act does not permit a judge to consider a suspect's danger to the community, only in capital cases or after conviction is the judge authorized to do so.

The 1966 Act was particularly criticized within the District of Columbia, where all crimes formerly fell under Federal bail law. In a number of instances, persons accused of violent crimes committed additional crimes when released on their personal recognizance. These individuals were often released yet again.^[29]

The Judicial Council committee recommended that, even in non-capital cases, a person's dangerousness should be considered in determining conditions for release. The District of Columbia Court Reform and Criminal Procedure Act of 1970 allowed judges to consider dangerousness and risk of flight when setting bail in noncapital cases.

Current federal law

In 1984 Congress replaced the Bail Reform Act of 1966 with new bail law, codified at United States Code, Title 18, Sections 3141-3150. The main innovation of the new law is that it allows pre-trial detention of individuals based upon their danger to the community; under prior law and traditional bail statutes in the U.S., pre-trial detention was to be based solely upon the risk of flight.

18 U.S.C. § 3142(f) provides that only persons who fit into certain categories are subject to detention without bail: persons charged with a crime of violence, an offense for which the maximum sentence is life imprisonment or death, certain drug offenses for which the maximum offense is greater than 10 years, repeat felony offenders, or if the defendant poses a serious risk of flight, obstruction of justice, or witness tampering. There is a special hearing held to determine whether the defendant fits within these categories; anyone not within them must be admitted to bail.

The Supreme Court upheld the 1984 Act's provision providing for pretrial detention based on community-danger in United States v. Salerno.

State laws

Bail laws vary somewhat from state to state, as is typical of U.S. jurisprudence. Generally, a person charged with a non-capital crime is presumptively entitled to be granted bail. Recently, some states have enacted statutes modelled on federal law that permit pretrial detention of persons charged with serious violent offenses, if it can be demonstrated that the defendant is a flight risk or a danger to the community.

Some states have very strict guidelines for judges to follow; these are usually provided in the form of a published bail schedule.^[30] These schedules list every single crime defined by state law and prescribe a presumptive dollar value of bail for each one. Judges who wish to depart from the schedule must state specific reasons on the record for doing so. Some states go so far as to require certain forfeitures, bail, and fines for certain crimes.^[31]

In Texas, bail is automatically granted after conviction if an appeal is lodged, but only if the sentence is fifteen years imprisonment or less. In Tennessee, all offenses are bailable, but bail may be denied to those accused of capital crimes.^[32]

Forms

In the United States there are several forms of bail used, these vary from jurisdiction, but the common forms of bail include:

1. Recognizance (ROR) – when an accused is released on recognizance, he or she promises to the court to attend all required judicial proceedings and will not engage in illegal activity or other prohibited conduct as set by the court. Typically a monetary amount is set by the court, but is not paid by the defendant unless the court orders it forfeited. This is called an unsecured appearance bond or release on one's own recognizance.^[33]
2. Unsecured bail. It is still a release without a deposit but it differs from ROR in that the defendant must pay a fee upon breaching the terms of the bail.^[34]
3. Percentage bail. The defendant deposits only a percentage of the bail's amount (usually 10%) with the court clerk.^[34]
4. Citation Release also known as Cite Out – This procedure involves the issuance of a citation by the arresting officer to the arrestee, informing the arrestee that he or she must appear at an appointed court date. Cite Outs usually occur immediately after an individual is arrested and no financial security is taken.^[33]
5. Surety Bond – by a surety bond, a third party agrees to be responsible for the debt or obligation of the defendant. In many jurisdictions this service is provided commercially by a bail bondsman, where the agent will receive 10% of the bail amount up front and will keep that amount regardless of whether the defendant appears in court. The court in many jurisdictions, especially states that prohibit surety bail bondsmen – Oregon, Nebraska, Wisconsin, Illinois, Kentucky and Maine^[35] – may demand a certain amount of the total bail (typically 10%) be given to the court, which, unlike with bail bondsmen, is returned if the defendant does not violate the conditions of bail. This is also known as surety on the bond. The bail agent guarantees to the court that they will pay the forfeited bond if a defendant fails to appear for their scheduled court appearances, so the third party must have adequate assets to satisfy the face value of the bond. In turn, the Bond Agency charges a premium for this service and usually requires collateral from a guarantor. The bail agent then posts a bond for the amount of the bail, to guarantee the arrestee's return to court.^[33]
6. Property Bond – the accused or a person acting on his behalf pledges real property having a value at least equal to the amount of the bail. If the principal fails to appear for trial the state can levy or institute foreclosure proceedings against the property to recover the bail. Used in rare cases and in certain jurisdictions. Often, the equity of the property must be twice the amount of the bail set.^[33]
7. Immigration Bond – used when the defendant that been arrested is an illegal lmmigrant. This is a federal bond and not a state bond. The defendant deals directly with either the Department of Homeland Security (DHS) or the Bureau of Immigration and Custom Enforcement (ICE). The typical cost associated with this specialty bond is often fifteen to twenty percent of the original bond amount.^[36]
8. Cash – typically "cash-only," where the only form of bail that the Court will accept is cash. Court-ordered cash bonds require the total amount of bail to be posted in cash. The court holds this money until the case is concluded. Cash bonds are typically ordered by the Court for the following reasons: when the Court believes the defendant is a flight risk, when the Court issues a warrant for unpaid fines, and when a defendant has failed to appear for a prior hearing. Cash bonds provide a powerful incentive for defendants to appear for their hearings. If the defendant does not appear as instructed, the cash bond is forfeited and a bench warrant is issued. If the defendant shows up for their scheduled court appearances, the cash is returned to the person who posted the bond. Anyone including the defendant can post a cash bond. If the defendant posts his own bond, the Court will deduct fines and costs from the bond before returning any balance.^[37]
9. Pretrial Services – a defendant is released to the supervision of a pretrial services officer (similar to a probation officer). In most cases defendants have no financial obligation to be supervised. Supervision by pretrial services can include phone or in-person check-ins, drug testing, court date reminders, and any other condition the judges deems necessary. See Pretrial Services Programs.
10. Combinations – courts often allow defendants to post cash bail or surety bond, and then impose further conditions, as mentioned below, to protect the community or ensure attendance.

• Conditions of release – many varied non-monetary conditions and restrictions on liberty can be imposed by a court to ensure that a person released into the community will appear in court and not commit any more crimes. Common examples include: mandatory calls to the police, regular check-ins with a Pretrial Services Program, surrendering passports, home detention, electronic monitoring, drug testing, alcohol counseling, surrendering firearms.
• Protective order, also called an 'order of protection' – one very common feature of any conditional release, whether on bail, bond or condition, is a court order requiring the defendant to refrain from criminal activity against the alleged crime victim, or stay away from and have no contact with the alleged crime victim. The former is a limited order, the latter a full order. Violation of the order can subject the defendant to automatic forfeiture of bail and further fine or imprisonment.

See also

• Bail bondsman
• Bounty hunters
• Mainprise
• Extortion

References