bail bondsmen



Legislatures may also set out certain crimes to be unbailable, such as capital crimes.

Under the current law of England and Wales, bail simply refers to the release of the accused before trial.

Forms of bail

The form of bail varies from jurisdiction, but the common forms of bail include:

  • Recognizance — a promise made by the accused to the court that he/she will 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 denominated an unsecured appearance bond or release on one's own recognizance.
  • Cash — typically "cash-only," where the only form of bail that the Court will accept is cash.


Bail law in England and Wales


In mediæval England, the sheriffs originally possessed 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 ones 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) the 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 offenses 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 of Bail

In the UK there are three types of bail:

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

Police bail 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.

Police bail after charge

After a person has been charged, he must ordinarily be released, on bail or without bail. Unless the accused has a previous conviction (or equivalents in cases of insanity) for certain specified homicide or sexual offences, the accused must be released either on bail or without bail unless:

(a) If the person arrested is not an arrested juvenile—cha

(i) his name or address cannot be ascertained or the custody officer has reasonable grounds for doubting whether a name or address furnished by him as his name or address is his real name or address;

(ii) the custody officer has reasonable grounds for believing that the person arrested will fail to appear in court to answer to bail;

(iii) 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;

(iiia) in the case of a person who has attained the age of 18, the custody officer has reasonable grounds for believing that the detention of the person is necessary to enable a sample to be taken from him under section 63B below]

(iv) 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;

(v) 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; or

(vi) the custody officer has reasonable grounds for believing that the detention of the person arrested is necessary for his own protection;

(b) if he is an arrested juvenile—

(i) any of the requirements of paragraph (a) above is satisfied; or

(ii) the custody officer has reasonable grounds for believing that he ought to be detained in his own interests.

If he is granted bail it will be bail to appear at a Magistrates' Court at the next available sitting.

Bail by a court

Right to bail


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:

  1. will abscond;
  2. will commit further offences whilst on bail; or
  3. will interfere with witnesses.

The court should take into account:

  1. the nature and seriousness of the offence or default (and the probable method of dealing with the defendant for it),
  2. the character, antecedents, associations and community ties of the defendant,
  3. the defendant’s bail record, and
  4. the strength of the evidence.

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.

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.

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


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 whilst on bail;
  • to prevent the defendant interfering with witnesses; or
  • for the defendant's own protection (or if he is a child or young person, for his own welfare or in his own interests).

Failure to comply with bail

Failing to attend court on time as required is an offence, for which the maximum sentence in a magistrates’ court is three years and twelve months' imprisonment in the Crown Court. (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".

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.

Bail law in the United States

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


Section 29 of the Pennsylvania Constitution of 1776 states that "Excessive bail shall not be exacted for bailable oflences: And all fines shall be moderate."

The Eighth Amendment in the US Federal Bill of Rights is derived from the Virginia Constitution, "Excessive bail shall not be required...", in regard to 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.

The Sixth Amendment, to the Constitution, like the English Habeas Corpus Act of 1678, 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.

The Judiciary Act of 1789



The Bail Reform Act of 1966




Current U.S. bail law



State bail laws


Some states have very strict guidelines for judges to follow, with a published bail schedule. Some states go so far as to require certain forfeitures, bail, and fines for certain crimes.

See also



External links and References

Frequently Asked Bail Questions

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