Second Bite at Bail: Fresh Application, Surety and the Interference Ground
Marcus, 26, is charged with assault occasioning actual bodily harm against his ex-partner, Jade. Four weeks ago the magistrates refused bail after a full argument and sent him for trial to the Crown Court, where the trial is listed in ten weeks. He has two convictions for battery (2019 and 2021) and one breach of a community order. The Crown opposes bail on the grounds of further offences against Jade, failure to surrender and interference with witnesses, relying on a message he sent to Jade's sister from the police station two days after the alleged assault. The proposed address is his aunt's flat, forty miles from Jade. His aunt, who receives universal credit, offers a £2,000 surety but says she will act only if he lives with her. Marcus says the message was an apology.
1. You are asked to make a fresh bail application in the Crown Court. What must you establish, and how does the earlier full argument affect your approach?
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Jurisdiction. Where a defendant has been committed for trial and bail has been refused by the magistrates, s.5(1) Bail Act 1976 permits an application to the Crown Court. The Crown Court hears it afresh in the sense that it applies Schedule 1 Part I to the current material, but it will not ordinarily re-run the same argument on the same evidence. The principle in R v Nottingham Justices, ex parte Davies - that a repeat application requires a change of circumstances - is applied in practice.
Therefore you need new material. On these facts the new material is: (a) the aunt's address and her offer of a surety, provided this was not fully before the magistrates; (b) the ten-week trial date, which is relevant delay but not a trump card; (c) evidence about the message - its full content, context and the apology explanation; (d) a letter or statement from the aunt confirming her means and willingness to supervise. Without something new, the judge may decline to entertain the application.
Approach. Do not simply repeat that he denies the offence. Build a package: a stable address far from the complainant, supervision by a family member, a curfew, reporting conditions and a clear non-contact condition. Address the Schedule 1 exceptions head-on rather than leaving the Crown to prove them unopposed, and be ready to explain why the earlier bench's concerns are now met.
2. Assess the strength of the three grounds the Crown relies on, including any legal gaps in them.
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Failure to surrender - weak to moderate. There is no history of absconding in what we are told; two old batteries and a breach of a community order do not establish a real risk of flight. The Crown will point to the likelihood of a custodial or suspended sentence and the 40-mile address, but that is thin without more.
Offending on bail - probably inapplicable. Schedule 1 Part I para 2(1)(b) applies only if the offence was committed while he was on bail in criminal proceedings. Nothing in the facts suggests he was. If he was not, this ground falls away entirely and the Crown should be held to it.
Interference with witnesses - the real battleground. The message to Jade's sister, sent from custody two days after the assault, is the Crown's best point. The Crown will say it shows he can reach the complainant's family and that he was trying to influence her. The defence case is that it was an apology, which is not interference. The court will look at the exact words, their tone, whether they were sent before or after he was remanded, and whether there is any pattern of controlling behaviour.
Overall. If the message is genuinely apologetic and the other two grounds are weak or absent, bail is realistically obtainable on strict conditions. If the message is intimidatory, the application is much harder and the court is likely to find substantial grounds under para 2(1)(c).
3. What conditions should you propose, and what are the strengths and weaknesses of the surety?
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Conditions to propose.
- Residence at the aunt's address, with no change without the court's approval.
- A curfew, if appropriate with electronic monitoring - a condition available under s.3(6ZAA) Bail Act 1976.
- Reporting to a named police station on specified days.
- A non-contact condition covering Jade and her sister, expressly extending to indirect contact, social media and third parties.
- A prohibition on entering Jade's home area, defined by a clear boundary.
- A condition not to contact prosecution witnesses and to notify any change of circumstances.
The surety - strengths. The aunt is a stable, apparently responsible figure who is willing to put her money at risk and to supervise. Residence with her is a real safeguard and the 40-mile distance is a genuine protective factor for Jade.
The surety - weaknesses. A £2,000 surety from someone on universal credit is likely to be illusory; the court will ask about her means and may conclude she could not pay, which reduces the deterrent value. She is also a family member with an obvious emotional interest, and her condition that she will act only if he lives with her means the arrangement collapses if she withdraws. Consider reducing the sum, providing evidence of her savings, or proposing a third-party support package alongside her.
Conclusion. Propose the conditions as a package and be candid about the surety's means; overstating it damages credibility.