Bail Pending Trial

DOI10.1177/002201834901300310
Publication Date01 July 1949
Date01 July 1949
SubjectArticle
Bail
pending
Trial.
PERHAP S one of
the
most difficult questions which
Justices are called upon to decide when committing
an accused person for trial is
that
of whether he should be
allowed bail or committed in custody pending
the
trial,
and
this difficulty is enhanced by
the
artificial distinction
between felonies
and
misdemeanours which has grown up
in relation to this question.
The
general law on
the
subject is contained in section
23 of
the
Indictable Offences Act 1848 which gives Justices
adiscretion as to whether
they
will
grant
bail or not in all
cases of felony, certain specified misdemeanours
and
"any
misdemeanour for
the
prosecution of which costs
may
be
allowed
out
of
the
county rate". By
the
Costs in Criminal
Cases Act·1908
the
costs of all felonies
and
misdemeanours
except
the
offences relating to non-repair of
the
highway
(section 9(3)),
may
be allowed
out
of
the
local rate, so
that
now bail is discretionary in all cases except non-repair of
the
highway
and
treason.
According to
the
decided cases, in all these cases where
bail is discretionary,
the
proper test of whether bail should
be granted or refused is whether it is probable
that
the
accused person will appear to
take
his trial (Re Robinson,
23 L.J.Q.B. 286),
but
the
test
should be applied by refer-
ence to
the
following considerations
:-
(1)
The
nature
of
the
accusation;
(2)
the
nature
of
the
evidence in support of
the
accusation;
(3)
the
severity of
the
punishment which conviction
will
entail;
(4)
whether
the
sureties are independent or indemni-
fied
by
the
accused person. (Archbold, page 68).
These
matters
were mentioned in
the
well-known case
of R. v. Phillips (1947,
III
J.P.
333) which came before
the
Court of Criminal Appeal,
and
from
the
obiter dicta of
312

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