# 1(a) State and explain the two practical requirements that the State must satisfy before a court can legally order the placement of an accused person on remand pending trial.
## Introduction
In England and Wales, the law starts with the idea that a person accused of a crime should not be locked up before they are found guilty. This is known as the general right to bail, which is a very important part of our justice system and is set out in the Bail Act 1976. However, this right is not absolute. A court can decide to keep an accused person in custody, which is called remanding them in custody, while they wait for their trial. This is a serious step because it means someone who is presumed innocent is deprived of their liberty. For this reason, the State, which is usually represented by the Crown Prosecution Service (CPS), cannot just ask for a person to be remanded. It has to persuade the court by satisfying two key practical requirements. This answer will state and explain these two requirements: firstly, the need for the State to show that a legal exception to the right to bail exists, and secondly, the need for the State to provide the court with enough information to justify its belief that this exception applies.
## The First Requirement: Establishing a Valid Statutory Ground for Refusing Bail
The first thing the prosecution must do is point to a specific legal reason why an accused person should not be granted bail. The basic rule is found in section 4(1) of the Bail Act 1976, which says that a person will be granted bail unless one of the exceptions in the Act applies. These exceptions are mainly listed in Schedule 1 of the Act. So, the first job for the prosecution is to argue that the defendant’s case fits into one of these exceptions.
For an adult accused of an offence that can be tried in the Crown Court (an indictable or either-way offence), the main exceptions are found in paragraph 2 of Schedule 1. The prosecution has to show there are ‘substantial grounds for believing’ that if the defendant were released on bail, they would:
* Fail to surrender to custody (that is, not turn up for their next court hearing);
* Commit another offence while on bail; or
* Interfere with witnesses or otherwise obstruct the course of justice.
The phrase ‘substantial grounds’ is key here. It doesn’t mean the prosecution has to prove that the defendant *will* do one of these things. That would be impossible. It is a lower standard than proving something ‘on the balance of probabilities’ (i.e., more likely than not). It basically means there must be a real and serious risk, not just a possibility or a vague worry (Sprack, 2023).
To help the court decide if there are substantial grounds, paragraph 9 of Schedule 1 lists several factors that it should think about. The prosecution will use these factors to build its argument. These factors are:
1. **The nature and seriousness of the offence:** A very serious offence, like murder or robbery, which could lead to a long prison sentence if the person is convicted, makes it more likely that they might not turn up for their trial. The prosecution will stress the seriousness of the charge.
2. **The character, antecedents, associations and community ties of the defendant:** The court will look at the defendant’s past. Do they have previous convictions (antecedents), especially for similar offences or for failing to surrender to bail before? Strong community ties, like having a family, a stable home, and a job, make it less likely a person will run away. The prosecution will highlight a lack of ties or a history of not following court orders.
3. **The defendant’s record in respect of previous grants of bail:** If the defendant has been granted bail in the past and has always complied with the conditions and turned up to court, this will help their case. If they have a history of breaching bail, the prosecution will use this to argue that they cannot be trusted.
4. **The strength of the evidence against them:** If the evidence seems very strong, there is a greater incentive for the defendant to abscond rather than face trial. The prosecution might briefly outline the evidence to show the court that a conviction is a strong possibility, increasing the risk of the defendant failing to surrender.
So, the first practical requirement is that the prosecution must construct a clear argument based on the legal grounds set out in the Bail Act 1976. It cannot just say “we object to bail”. It has to pick a specific ground, like the risk of committing further offences, and then use the factors in paragraph 9 to explain to the court exactly why it believes there are substantial grounds for that risk.
## The Second Requirement: Providing the Court with Sufficient Information
The second requirement is closely linked to the first, but it is about the evidence or information behind the argument. It is not enough for the prosecution to just make claims; it must provide the court with information to back them up. The court has to make its own decision and cannot just take the prosecutor’s word for it. Therefore, the state must present actual information on which the court can base its decision to refuse bail.
This information does not have to follow the strict rules of evidence that apply in a trial. A bail hearing is a more informal process. The information is often provided by the police and summarised for the court by the CPS prosecutor. It might include things like a list of the defendant’s previous convictions, details from police intelligence systems about the defendant’s associates, or a statement explaining why the police believe a witness is at risk of being intimidated. For example, if the prosecution is arguing there is a risk of interfering with witnesses, they might tell the court that the main witness lives next door to the defendant’s family and has already reported a threat.
The defence solicitor has the right to see this information and can challenge it. They can argue, for instance, that the previous convictions are very old and not relevant, or that the defendant has a good explanation for a past failure to attend court. The court then has to weigh up the information provided by the prosecution against the arguments made by the defence.
The duty on the court to properly consider the information is very important. It reflects the fact that a person’s liberty is at stake, which is protected by Article 5 of the European Convention on Human Rights (ECHR). Keeping someone in custody must be a decision that is necessary and based on solid reasons, not on speculation. Because the decision is so important, if a magistrates’ court decides to remand a person in custody, it has to give its reasons and make a record of them, as confirmed in cases like *R v Mansfield Justices, ex p Sharkey* [1985] QB 613. This ensures the decision is not made lightly and can be properly reviewed by a higher court if challenged.
In practice, this means the prosecutor must come to court prepared. They will usually have a file containing the defendant’s criminal record (known as antecedents), a summary of the alleged offence, and any specific objections to bail from the police officer in the case. This allows the court to move beyond generalisations and look at the specific facts relating to the individual defendant. Without this information, the court simply has no basis on which to find “substantial grounds” and would have to grant bail, in line with the general presumption.
## Conclusion
In summary, for a court to legally remand an accused person in custody, the State cannot simply request it. It must overcome the strong presumption in favour of granting bail by satisfying two connected requirements. First, it must identify a specific legal justification for refusing bail from the list of exceptions provided in the Bail Act 1976, such as the risk that the defendant will fail to appear at trial or commit another crime. Second, the State must present the court with sufficient credible information to show that there are ‘substantial grounds’ for believing that this risk is real. This information might relate to the defendant’s past behaviour, the seriousness of the offence, or the strength of the evidence. Only when the prosecution has satisfied both of these practical requirements can the court make the serious decision to deprive a legally innocent person of their liberty pending trial.
## References
- Bail Act 1976
- Human Rights Act 1998
- R v Mansfield Justices, ex p Sharkey [1985] QB 613
- Sprack, J. (2023) A Practical Approach to Criminal Procedure. 24th edn. Oxford: Oxford University Press.
- Zander, M. (2021) Cases and Materials on the English Legal System. 11th edn. Cambridge: Cambridge University Press.
