Bail in Murder Cases

Murder is the most serious crime that a person can be charged with and if appearing before the court the question of bail becomes a complex issue.  

The power of magistrates to consider bail in murder cases has been removed by section 115(1) of the Coroners and Justice Act 2009, as such the first application for bail must be made at the Crown Court, and it must be made within 48 hours. 

Bail decisions in murder cases to be made by a Crown Court Judge 

The Coroners and Justice Act 2009 provides: 

(1) A person charged with murder may not be granted bail except by order of a judge of the Crown Court.  

(3) A judge of the Crown Court must make a decision about bail in respect of the person as soon as reasonably practicable and, in any event, within the period of 48 hours beginning with the day after the day on which the person appears or is brought before the magistrates’ court. 

The right to bail   

When a person is charged with murder, the general right to bail does not apply, and this person may only be granted bail where there are exceptional reasons, which justify it. 

Section 114(2) Coroners and Justice Act 2009 provides that bail may not be granted to someone charged with murder unless the court is satisfied that there is no significant risk that, if released on bail, that person would commit an offence that would be likely to cause physical or mental injury to another person other than the defendant.  

When considering this position, the court must have regard to the nature and seriousness of the offence, the defendant’s character and antecedent history (any previous convictions). 

What does the prosecution have to consider in relation to bail in murder cases?  

From the Crown Prosecution perspective, unless there are very exceptional circumstances, bail will very rarely be appropriate in a murder case. The crown will almost always oppose a bail application made by the defence and seek for the court to keep a person accused in custody.  

The prosecution has a duty to protect the public and their main concerns, amongst others, are going to be: 

• The risk to the public – A person may pose a serious risk to the public if they are alleged to have a committed a particular violent murder or particularly if it was a targeted attack, this is of significant concern so as to avoid any further threat to human life which must be preserved.  
• The risk of witness interference or otherwise obstructing the course of justice  –  A defendant may be more inclined to try to influence witnesses or try to destroy evidence if they were to be released.  
• The risk of the flight  –  Should a person be convicted of murder the sentence will inevitably be severe (life imprisonment) as so the risk of a defendant not returning to face trial is likely to be high.  

What does the defence have to consider in relation to bail in murder cases?  

From the defence perspective, bail should not be automatically denied just because the allegation is a serious one.  

The defence have a duty to act in the best interests of their client and to ensure that their client’s liberty is not restricted, simply because they have been accused of murder.  

The defence lawyers’ main concerns are going to be: 

• The presumption of innocent until proven guilty – This is a legal principle that every person accused of a crime is innocent until they are proven guilty beyond reasonable doubt. If reasonable doubt remains after trial a person will be acquitted. If a person has been acquitted, they are innocent and if not granted bail, will have spent a considerable amount of time on remand in custody as an innocent person.  
• Delay and the right to receive a fair trial – Murder trials often take months or sometimes years to reach a conclusion, a person may spend an excessive amount of time in prison without a verdict.  
• A person’s individual circumstances – A person may have compelling reasons for bail, such as medical reasons, a stable address, no previous convictions, strong community ties such as employment.  

The general provisions of s.3 Bail Act 1976 provides:

(1) A person granted bail in criminal proceedings shall be under a duty to surrender to custody, and that duty is enforceable in accordance with section 6 of this Act. 

(6) He may be required to comply, before release on bail or later, with such requirements as appear to the court to be necessary –  

(a) to secure that he surrenders to custody, 

(b) to secure that he does not commit an offence while on bail, 

(c) to secure that he does not interfere with witnesses or otherwise obstruct the course of justice whether in relation to himself or any other person, for his own protection or, if he is a child or young person, for his own welfare or in his own interests, 

(d) to secure that he makes himself available for the purpose of enabling inquiries or a report to be made to assist the court in dealing with him for the offence. 

Bail conditions 

The defence are almost always going to suggest stringent bail conditions to alleviate any concerns that the court may have, as outlined by the crown.  

In making a bail application, these could include but are not limited to: 

• Electronically monitored curfew as an alternative to custody; 
• Regular reporting at a local police station; 
• Relocation of the defendant to a secure address.  

Any condition imposed must be necessary, proportionate and capable of being enforced, they must also meet the objections to bail. 

What is the court’s role in considering bail in murder cases? 

Taking into account both the prosecution views and defence views, the courts’ role is to weigh all the risk factors against a person’s right to liberty and strike a fair balance between the security and risk to the public and fairness for the defendant.  

A judge will also consider the circumstances such as pre-meditation and strength of evidence. If the evidence is sufficiently strong, the court may be more inclined to deny bail, than if the crown were relying on weak evidence to prove their case.   

Whilst it is rare for bail to be granted in murder cases, it is not impossible and Olliers  have been successful in having crown court applications for bail granted in murder cases.  

Instructing Olliers to act in relation to a murder allegation 

If you or someone you know has been arrested or charged in relation to a murder allegation, the sooner you contact us the better. If they are in custody at a police station we will make immediate contact. If they are already charged, we can act and if another legal team is already in place we can consider whether it is in their best interests to instruct Olliers. 

If you or someone you know requires representation in relation to an allegation of murder or manslaughter (or any serious criminal allegation) please contact Olliers by telephone on 0161 834 1515, by email at info@olliers.com or complete the form below.