Bail in UK Law

To grant this application at this stage would, in the view of this Court, be to put a premium on prisoners jumping bail; it may even have the effect of encouraging others to do so. It may also have as a side effect, increasing the reluctance of a Court in a very long trial to grant bail lest Jones' conduct be repeated by others. To put a premium on jumping bail is something which this Court is not for one moment prepared to countenance.

The seriousness of the offence and the severity of the penalty likely to be imposed on conviction may well, as pointed out at the beginning of this paragraph, provide grounds for refusing bail, but they do not do so of themselves, without more: they are factors relevant to the judgment whether, in all the circumstances, it is necessary to deprive the applicant of his liberty.

These observations were made in the context of a case about temporary admission. The House of Lords held that the distinction between the existence and the exercise of the power to detain was material to the power to grant temporary admission to a person "liable to detention". There is no warrant for applying that distinction to the different question of whether there is a power to grant bail in respect of a person who may not lawfully be detained at the time when it is proposed to grant bail.

In the present case our particular focus is not on a power of executive detention, but on a power to grant bail. Nevertheless, and despite the fact that the purpose may be to effect a release from detention, I consider that this similarly attracts the presumption of statutory interpretation because the conditions which may be attached to a grant of bail are capable of severely curtailing the liberty of the person concerned.

Paragraph 22 of Schedule 2 confers a power to release on bail in the case of three categories of person, namely a person detained under paragraph 16(1) pending examination, a person detained under paragraph 16(1A) pending completion of his examination or a decision on whether to cancel his leave to enter, and a person detained under paragraph 16(2) pending the giving of directions. Each category is defined by reference to the person being detained under paragraph 16 of Schedule 2.

I accept the submission on behalf of the Home Secretary that where there is a risk of absconding and a refusal to accept voluntary repatriation, those are bound to be very important factors, and likely often to be decisive factors, in determining the reasonableness of a person's detention, provided that deportation is the genuine purpose of the detention. The risk of absconding is important because it threatens to defeat the purpose for which the deportation order was made.

I will now try and look at the problem overall, taking, first, the High Court. In my judgment you cannot apply to the High Court for bail unless the High Court is seized of some sort of proceeding. It may be seized of an application for leave to apply for judicial review or it may be seized of the substantive application. So long as it is seized of either of those applications, you can apply to the High Court and the court can grant or refuse bail.