Bail is an integral part of the criminal justice system, allowing individuals accused of a crime to be released from custody while they await their trial. However, the conditions of bail can vary depending on the case’s specific circumstances and the judge’s discretion. This can lead to clarity and certainty for those involved in the process.
If you’ve been charged with a criminal offence and want to make an appeal for bail, it’s important to understand the different types of bail variations, how they work, and what you need to know if you are facing a bail variation.
Types of Bail Variations
Cash Bail
- This is the most common type of bail application, where the defendant or their family/friends pay the full bail amount in cash.
- The court holds the cash as collateral until the case is resolved, and it may be forfeited if the defendant fails to appear in court or violates any bail conditions.
Property Bail
- Instead of cash, the defendant or their family/friends can put up property (such as a house or car) as collateral for bail.
- The property’s value must equal or exceed the bail amount.
Surety Bond
- This involves a third-party (usually a bail bondsman) posting bail on behalf of the defendant.
- The defendant or their family/friends typically pay a fee (usually 10% of the bail amount) to the bondsman, who then posts the bail with the court.
- If the defendant fails to appear in court, the bondsman is responsible for paying the full bail amount.
Release on Recognisance (ROR)
- This is also known as “own recognisance” or “personal recognisance” and is usually granted to low-risk defendants with strong community ties and a good track record of showing up to court.
- The defendant is released without having to pay bail, but they must agree to certain conditions, such as regular check-ins with a probation officer or restrictions on travel.
Unsecured Bond
- This is similar to a ROR, but the defendant must only pay a set bail amount if they fail to appear in court.
- The defendant is released without having to pay any money upfront, but they must sign a contract agreeing to pay the bail if they violate the conditions of their release.
Partially Secured Bond
- This is a combination of cash bail and a surety bond, where the defendant pays a portion of the bail in cash and a bondsman covers the rest.
- The defendant is still responsible for paying the total amount if they violate the conditions of their release.
Electronic Monitoring
- This is a type of bail application where the defendant must wear an electronic ankle bracelet or other tracking device to ensure that they comply with the conditions of their release, such as staying within a certain geographic area or adhering to a curfew.
Reasons for Bail Variations
Flight Risk
One of the main factors a judge considers when setting bail is the likelihood that the defendant will flee the jurisdiction before their trial.
In cases where the judge determines that the defendant is a flight risk, they may set a higher bail amount or impose more severe bail conditions (such as electronic monitoring or travel restrictions).
Severity of the Offence
The severity of the offence is another crucial factor that a judge considers when setting bail. The more serious the offence, the higher the bail amount is likely to be.
This is because the judge wants to ensure that the defendant has a strong incentive to show up for their trial and prevent them from committing further crimes while they are out on bail.
Criminal History
A defendant’s criminal history is also considered when setting bail. If the defendant has a history of failing to appear in court or committing similar crimes, the judge may consider them a higher risk and set a higher bail amount or impose more severe bail conditions.
Community Ties
The defendant’s ties to the community are another important factor. If the defendant has strong community ties, such as a stable job or a family, the judge may be more likely to grant a lower bail amount or release the defendant on their recognisance (ROR).
This is because the defendant is less likely to flee the jurisdiction and more likely to show up for their trial if they have strong ties to the community.
How to Request a Bail Variation
If you or a loved one is currently out on bail but needs a bail variation, there are several steps you can take to request a modification of your bail conditions. The first step is to hire an experienced criminal defence lawyer to help you understand your legal options and assess your chances of success.
To support your request for a bail variation, you must provide the court with evidence that justifies the modification. This may include medical records, employment information, character references, or other documents demonstrating a change in circumstances since the original bail was set. Your lawyer will then file a motion with the court, outlining why you seek bail variation and providing evidence to support your request.
Once the motion has been filed, the court will schedule a hearing to consider your request. At the hearing, you and your lawyer will present your case to the judge, who will decide whether to grant the bail variation. If the judge approves your request, they will issue an order modifying your bail conditions. If the judge denies your request, you must follow the original bail conditions until your trial is complete.
Challenges to Bail Variations
While bail variations can provide important relief for defendants struggling with their current bail conditions, there are also some challenges to consider. Here are a few potential obstacles you may encounter when requesting a bail variation:
- Resistance from Prosecutors: In some cases, prosecutors may resist a bail variation request if they believe it could compromise public safety or increase flight risk.
- High Bail Amounts: Depending on the severity of the offence, the original bail amount may be set prohibitively high, making it difficult to secure a bail variation that is affordable and manageable.
- Limited Options: Some courts may have limited options for bail variations, particularly in cases where the original bail was set with strict conditions.
- Time Constraints: The bail variation application can be time-consuming, and in some cases, a defendant may not have enough time to pursue a modification before their trial or hearing.
- Lack of Evidence: To secure a bail variation, you must provide compelling evidence that justifies the modification. If you do not have sufficient evidence or cannot make a strong argument for a modification, your request may be denied.
Hiring an Experienced Bail Lawyer
Bail variations can be valuable for defendants struggling with their current bail conditions. By requesting a modification of your bail, you can secure more manageable and affordable terms that better meet your needs and circumstances.
However, it’s essential to remember that the bail application process can be complex and challenging, and several potential obstacles exist to overcome. Working closely with an experienced criminal defence lawyer and gathering compelling evidence to support your request can increase your chances of success.
