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Report No. 36

19. English law as to object of bail.-

As to English law, the position has been thus stated1:-

"Bail is not to be withheld merely as a punishment."

The requirements as to bail are merely to secure the attendance of the defendant at the trial.- R. v. Rose, 67 LJ QB 289.

1. Archbold Criminal Proceedings, (1966), pp. 71-72, paras. 202-203.

203. The proper test of whether bail should be granted or refused is whether it is probable that the defendant will appear to take his trial.- Re Robinson, 23 LJ QB 286.

The test should be applied by reference to the following considerations:-

(1) The nature of the accusation.- R. v. Barronet and Allain, 1 E&B 1;

(2) The nature of the evidence in support of the accusation.- Re Robinson, ante.

(3) The severity of the punishment which conviction will entail.- Re Robinson, ante.

(4) Whether the sureties are independent, or indemnified by the accused person.- Hermann v. Jeuchner, 15 QBD 561; Consolidated Exploration etc. Co. v. Musgrave, (1900) 1 Ch 37; R. v. Porter, (1910) 1 KB 369: 3 Cr App 237.

For observations on the undesirability of bail being granted by magistrates in cases of house-breaking, where there is a likelihood of the offence being repeated, see R. v. Phillips, 32 Cr App 47.

20. A few cases may be referred to, to show how the discretion to grant bail is exercised in England. It was pointed out in one case,1 that "it is the duty of the Justices to inquire into the antecedents of a man who is applying to them for bail."

In another case,2 it was held that where the crime is of a nature that there is a likelihood of its being repeated if the accused is released, particularly where the evidence indicates that there is no defence to the charge preferred (e.g. accused arrested in the act of house-breaking), the grant of bail pending trial would be wrong.

In that case, the applicant had pleaded guilty in two charges of house-breaking and larceny, and asked that ten similar outstanding offences be taken into consideration. Nine of these offences were committed while the applicant was on bail, seven before and two after his committal for trial. He was sentenced to four years' penal servitude. The Court of Criminal Appeal (Lord Goddard, C.J., Atkinson and Cassels, JJ.), in dismissing an application for leave to appeal against the sentence, made the following observations3:-

"The Court feels very strongly that the applicant ought not to have been released on bail. In cases of felony, bail is discretionary, and the matters which ought to be taken into consideration include the nature of the accusation, the nature of the evidence in support of the accusation, and the severity of the punishment which conviction will entail.

Some crimes are not at all likely to be repeated pending trial, and in those cases there may be no objection to bail; but some are, and house-breaking particularly is a crime which will very probably be repeated if a prisoner is released on bail, especially in the case of a man who has a record for house-breaking such as the applicant had. It is an offence which can be committed with a considerable measure of safety There were three charges against the applicant. With regard to one, there was no defence; and in the case of another, he was actually arrested in the act. Yet in spite of all his previous convictions the applicant was given bail, not once but twice, first pending the hearing before the Magistrates, and again on committal for trial.

To turn such a man loose on society until he has received his punishment for an undoubted offence, an offence which was not in dispute, was, in the view of the Court, a very inadvisable step. They wish Magistrates who release on bail young house-breakers, such as this applicant, to know that in nineteen cases out of 20 it is a mistake. The Court hopes that some publicity will be given to these observations, so that Magistrates may know the view of the Court of Criminal Appeal."

1. R. v. Armstrong, (1951) 2 All ER 219 (CCA). Stone's Justice Manual, (1962), Vol. I, para. 45, f.n. (h).

2. R. v. Phillips, (1947) III JP 338: 32 Cr App Rep 47 (CCA).

3. See Luxford Police Law New Zealand, (1950), p. 91.



Section 497, 498 and 499 of the Codeof Criminal Procedure, 1898 - Grant of Bail with Conditions Back




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