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Criminal Justice and Immigration Act 2008

Section 52 and Schedule 12: Bail for summary offences and certain other offences to be tried summarily

378.Section 52 and Schedule 12 amend the 1976 Act to restrict the grounds on which a person charged with an imprisonable summary offence or a relevant low-level criminal damage offence may be refused bail.

379.Schedule 1 to the 1976 Act sets out the grounds on which a court may refuse bail in criminal proceedings (the “exceptions to the right to bail”): Part 1 of Schedule 1 currently applies where a defendant is accused or convicted of an imprisonable offence; Part 2 applies to non-imprisonable offences and has a more restricted list of exceptions than Part 1. Schedule 12 will disapply Part 1 for certain defendants, and instead insert and apply a new Part 1A. New Part 1A will include the four exceptions to the right to bail that are in Part 2 as well as four further exceptions, two of which derive from Part 1.

380.Paragraph 2 of Schedule 12 amends section 3(6D)(a) of the 1976 Act so that the conditions of bail specified in that provision (which apply to persons for whom there is drug test evidence of a Class A drug and who are required to undergo a relevant assessment or participate in a follow-up) will still apply to defendants within new Part 1A.

381.Paragraphs 3 to 5 of Schedule 12 insert a new section 9A into the 1976 Act and amend Part 1 of Schedule 1 to prescribe which defendants will fall within new Part 1A, which is inserted by paragraph 6. Part 1A will apply to a defendant charged with imprisonable offences that are -


summary offences, or


offences listed in Schedule 2 to the Magistrates’ Courts Act 1980 (certain offences involving criminal damage), where the value involved is less than the relevant sum (currently £5000).

382.For offences listed in Schedule 2 to the Magistrates’ Courts Act 1980 (criminal damage, related offences, and certain forms of aggravated vehicle-taking), a defendant over 18 will fall within new Part 1A if, under the procedure in section 22 of the Magistrates’ Courts Act 1980 (for determining mode of trial), the court has decided it is clear that the value involved does not exceed £5000. New section 9A provides for a court to take the same decision in relation to defendants under 18, for the purposes of applying the 1976 Act.

383.Paragraph 1 of new Part 1A establishes which defendants fall within the new Part, and paragraphs 2 to 9 prescribe eight exceptions to the right to bail. Where an exception applies, the court need not grant bail to the defendant, but still has a discretion to do so which will be exercised having regard to all the circumstances of the case. The exceptions are as follows:


Paragraph 2 applies if, having been granted bail previously, the defendant has failed to surrender to custody and the court believes that, if released on bail, he would do so again.


Paragraph 3 applies if the defendant was on bail in criminal proceedings on the date of the offence and the court believes that, if released, he would commit an offence on bail.


Paragraph 4 applies if there are substantial grounds to believe that, if released on bail, the defendant would commit an offence by engaging in conduct that would be likely to cause physical or mental injury, or fear of such injury.


Paragraph 5 applies if the court is satisfied the defendant should be kept in custody for his own protection or, if a child or young person, for his own welfare.


Paragraph 6 applies if the defendant is in custody under the sentence of a court or officer under the Armed Forces Act 2006.


Paragraph 7 applies if, having been released on bail in proceedings for the same offence, the defendant was arrested under section 7 of the Bail Act (liability to arrest for absconding or breaking conditions of bail) and the court believes that, if released, he would:

  • fail to surrender to custody;

  • commit an offence while on bail,

  • interfere with witnesses or

  • otherwise obstruct the course of justice.


Paragraph 8 applies if it has not been practicable to obtain enough information to take decisions required by Part 1A due to lack of time since the proceedings began.


Paragraph 9 applies paragraphs 6A to 6C of Part 1 (exception applicable to drug users in certain areas) to defendants falling within Part 1A.

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