Administrative error with bail conditions

07 July 2021

Not reviewed after the date of publication

Question: 

A detainee is given conditional bail to reside at his father’s address. An address he knows well, but it is not his usual abode. The condition is explained to the detainee by the custody officer at the time of bail and a patrol physically conveys them to the address.

The detainee’s legal representative has then raised a complaint that the bail was null and void as the custody officer had incorrectly recorded the fathers address, using ‘road’ instead of ‘street’ and recording the postcode incorrectly.

Is the solicitor correct due to the administrative error, clearly the detainee knew what his residency condition was, and where he was required to stay, but is the bail lawful due to this error?

Answer:

When bail is granted, conditions of bail can be attached where necessary to prevent the suspect from failing to surrender, offending on bail, interfering with prosecution witnesses or otherwise obstructing the course of justice, or for his own protection. Section 3 of the Bail Act 1976 (D297 on PNLD) provides for the granting of 'unconditional' and 'conditional' bail by a court or a custody officer by virtue of section 3A (D1330 on PNLD) of this Act.

Where conditions are imposed in respect of bail in criminal proceedings, the legislation requires that a record of the decision is made, of which a copy can be given to the person if requested (section 5(1) of the Bail Act 1976).

The question raised is unprecedented and is not provided for in the legislation, however, it is our opinion that the record of the bail conditions should be accurate if any breach of bail conditions is to be enforceable and an administrative error, such as you describe, will have the effect of making the bail condition incorrect, but not of making the bail itself null and void.

The following options could be considered to correct the error, and which option is suitable will be fact specific to each case:

1) Section 5B of the Bail Act 1976 could be utilised which allows a prosecutor to apply to the court for conditions of bail to be varied in relation to indictable or either way offences which would allow for the error to be corrected.

2) Alternatively, consideration could be given to waiting for the suspect to answer their bail and then they could be re-bailed with new or amended conditions as authorised by the custody officer.

3) The bail date could be brought forward.  Section 47(4A) of the Police and Criminal Evidence Act 1984 states that where a person has been granted bail under this Part subject to a duty to attend at a police station, a custody officer may subsequently appoint a different time, or an additional time, at which the person is to attend at the police station to answer bail.  The suspect could then be re-bailed with new or amended conditions as authorised by the custody officer.

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