The Act: Section by Section Part 1: Bail Changes to the bail test in section 23B of the 1995 Act
11.Section 2 reframes the test which the court must apply when considering whether to grant bail to a person accused of or charged with an offence. As mentioned in paragraph 8 above, section 23B of the 1995 Act sets out that test. Section 23B(1) entitles an accused person to bail except where, by reference to section 23C (grounds relevant to question of bail) and having regard to the public interest, there is good reason for refusing bail. This is subject to section 23D of the 1995 Act, which restricts the granting of bail in certain solemn cases (this is explained further in paragraph 20 below).
12.Section 2(2)(a) amends section 23B of the 1995 Act. It replaces subsection (1) of that section with new subsections (1) and (1A). New section 23B(1) restates the general entitlement to bail. It provides that bail is to be granted to an accused person unless the court determines that there is good reason for refusing bail. New section 23B(1A) sets out the sole basis on which the court may determine that there is good reason for refusing bail. Although it involves a similar two-part test to the one that currently applies under section 23B(1), it narrows the court’s discretion to refuse bail.
13.The first part of the test remains the same. Under new section 23B(1A)(a), the court may refuse bail only if it considers that at least one of the grounds specified in section 23C(1) of the 1995 Act applies. Section 23C(1) lists specific grounds for refusing bail. The list is exhaustive and contains grounds which fall into two categories. The first category requires there to be a “substantial risk” of something adverse happening if the accused were to be granted bail – namely, the accused absconding or failing to appear at court, committing further offences, interfering with witnesses or otherwise obstructing the course of justice. The second category requires there to be some other “substantial factor” which justifies remanding the accused in custody. In assessing the grounds for refusal, the court must have regard to all material considerations. Section 23C(2) of the 1995 Act provides an illustrative list of examples. They include: the nature of the offences before the court; the probable disposal of the case if the accused were convicted of the offences; the question of whether the accused was subject to a bail order, or some other court order, when the offences are alleged to have been committed; the character and antecedents of the accused; and the associations and community ties of the accused.
14.The second part of the test, however, limits the circumstances in which the court may refuse bail. If the first part of the test is met, then under new section 23B(1A)(b), the court may refuse bail only if it considers it necessary to do so for one (or both) of the public interest reasons specified. The first reason is that it is necessary in the interests of public safety. Although not defined, the reference here to “public safety” essentially has the same meaning as the existing reference in section 23B(3). It continues to take the ordinary dictionary meaning of “public” and “safety” combined. Except that the interests of public safety are explicitly stated to include the protection of the complainer from a risk of harm. In this context, “harm” means physical or psychological harm and “psychological harm” includes fear, alarm and distress (see new section 23B(8), added by section 2(2)(c) of the Act). The second reason is that it is necessary to prevent a significant risk of prejudice to the interests of justice. The expression “prejudice to the interests of justice” is defined to mean either (a) the accused person evading justice as a result of the proceedings being delayed or discontinued, or (b) the course of justice in the proceedings being impeded or prejudiced as a result of various adverse outcomes relating to the availability, veracity, quality and sufficiency of evidence (see new section 23B(9) and new section 23B(10), which further defines what is meant by the “quality” of evidence, both added by section 2(2)(c) of the Act).
15.In considering whether the “necessity test” under new section 23B(1A)(b) is met, the court must still have regard to the wider public interest. In doing so, it must continue to consider the extent to which the public interest could (if bail were granted) be safeguarded by imposing bail conditions (see sections 23B(2) and 24(4) and (5) of the 1995 Act). So, where one of the grounds for refusal in section 23C of the 1995 Act applies, the court may refuse bail only if it considers that imposing bail conditions would not adequately safeguard the interests of public safety or (as the case may be) justice as set out in new section 23B(1A)(b)(i) or (ii).
16.Finally, as a consequential amendment, section 2(2)(b) repeals the definition of “public interest” in section 23B(3) of the 1995 Act. It defines “public interest” as including the interests of public safety. The definition is no longer required, however, given that it has been incorporated into the necessity test in new section 23B(1A)(b)(i).