Report No. 78

2.2. History of bail.-

The concept of bail has a long history. It would appear that historically, at least in England, the institution of bail arose because of necessity. When the administration of justice was in its infancy, imprisonment for the purposes of preliminary inquiry continued at least till the Sheriff held his `town', and in more serious cases, till the arrival of the justices, which might be delayed for years. Trials were delayed by the infrequent visits of itinerant justices and many accused persons died because of insanitary conditions in the prisons. It was therefore a matter of the utmost importance to be able to obtain a provisional release from custody.1

It was this necessity which led to the institution of bail the need to free untried prisoners waiting for the delayed trials conducted by travelling justices. Certain ad hoc arrangements were made by the Sheriffs for release on personal recognizance with or without bond or on the promise of a third party to assume responsibility for the appearance of the accused. It was in 1275 that the practice of the Sheriffs to grant bail was standardised.2 This power was later transferred to the justices in 1360-1361.3 The Statute of Westminster (1275) specified the conditions under which pre-trial release was permissible and limited the power of the Sheriffs to determine sufficient security in each case.4

The third party or surety had to assume a personal responsibility for the appearance of the accused, on penalty of forfeiture of his own property. The Bill of Rights5 guaranteed a right against "excessive bail". The Habeas Corpus Act6 made certain provisions for discharge on bail of persons who though "committed for high treason or felony plainly expressed in warrant shall not on petition be indicted as herein mentioned."

In course of time, the granting or denying of bail in England became almost completely a discretionary function of the judiciary, and (subject to certain special limitations) this substantially remained the position until 1976. In 1976 was passed the Bail Act, which confers a right to bail subject to certain exceptions. We shall mention its important provisions in due course.7

1. Stephen History of the Criminal Law in England, Vol. 1, p. 233.

2. The Statute of Westminster, 1275.

3. Statute of 1361, 34 Edward 3.

4. Note, Bail: An Ancient Practice Re-examined, (1961) 70 Yale 14 966.

5. The Bill of Rights, (1689) 1 Williams & Mary 10.

6. Section 6, Habeas Corpus Act, 1679.

7. Paras. 2.18 and 2.19, infra.