Bail Application Format Under Section 439 with PDF
When a person accused of committing a crime is arrested, he/she has a legal right to file a Bail Application, seeking to be considered for release on bail. Bail is the process of securing the legal release from custody, of an accused charged with certain offences. A person has to execute a bail bond and furnish securities. This is a sample of how to write an application to grant bail to someone in police custody or in a court case. If you are writing a similar application, just replace the words in bracket with your own suitable words to accomplish your purpose.
The structure and detail of the application will vary according to the nature and level of the prosecution's opposition how to write a bail application bail.
Thus it is important for the duty solicitor to negotiate with the prosecutor beforehand, as to whether conditions can be agreed and confirm whether the client will be willing and able to comply with those conditions.
It is important the applicant is in the dock before submissions begin for the bail application. It is important that they are present in court and can hear everything that is said.
The formal order of address is as follows:. Where prosecution have indicated that bail is unopposed and an agreement has been reached about bail conditions, submissions to the Court are straightforward, such as:.
Then outline the necessary details relating to those conditions [see Proposals for bail conditions below]. It is important that submissions are accurate yet concise. They must address the contentious issues raised by prosecution. The submissions should form an argument rather than a narrative or description of a scenario.
Personal style and the individual case will affect the structure of the argument. Toggle navigation. Legal Help for all South Australians. Refine results. Search by. The structure of a bail application. Where a defendant has been arrested for breaching a bail condition, it is not advisable for the duty solicitor to offer or suggest that the defendant should be re-released on bail, subject to even more stringent bail conditions.
Order of address. Submissions for an unopposed bail application. I understand my friend is not opposing bail with particular condition s and those can be what to wear for maternity photo shoot. Submissions where bail is opposed.
Submissions where bail is opposed : Last Revised: Mon May 21st Disclaimer Privacy Accessibility Adviser. The prosecution are keen to see strict compliance with conditions what does the adjusted trial balance show bail. If the prosecution proposes bail conditions which appear unnecessarily onerous, the duty solicitor should be prepared to argue the application in the normal way, and focus upon explaining the reasons for the breach, if the breach is in fact admitted.
The duty solicitor should not advise their client to agree to any conditions simply for the sake of bail being granted, because they may be more difficult for the client to comply with. A Magistrate may well agree with a duty solicitor's view and grant bail on less stringent conditions than sought by the prosecution.
The duty solicitor must ensure that any bail conditions arising from an application are consistent with those pre-existing it. A Magistrate may call into court all other files to ensure consistency of bail conditions. The duty solicitor must make it clear that their appearance on the bail application is in their capacity as duty solicitor, otherwise the Magistrate may not note this fact on the court file.
Bail Application: The Format
The structure and detail of the application will vary according to the nature and level of the prosecution's opposition to lovealldat.com it is important for the duty solicitor to negotiate with the prosecutor beforehand, as to whether conditions can be agreed and confirm whether the client will be willing and able to comply with those conditions. APPLICATION UNDER SECTION OF THE CODE OF CRIMINAL PROCEDURE FOR GRANT OF BAIL. Most Respectfully Show: 1. That the present application under section of the Code of Criminal Procedure is being filed by the Petitioner for seeking grant of bail in FIR No. _____ registered at Police Station_____. bail. Preview text. Bail template – Preparing a Bail Application. Prosecution. IntroductionsIdentify the factsConfirm the law (is there a Prima Facie Right to Bail?) Flag up your grounds for objecting to bail (Schedule 1 Bail Act ) FTS? Offend on bail? Interfere with witnesses/justice? Take each ground in turn (remember the prosecution must make out 1 or more ofthe grounds under Schedule 1 of the Bail .
Without it needing to be prolonged, the fact itself of being held in immigration detention can be quite distressing. Once a person finds themselves detained under immigration powers, it is very most likely with a view to deportation or removal. In such circumstances, the immediate question then becomes when and how best to submit a bail application. Some several matters set out below may be worth considering when preparing an application for bail.
Whilst a person who is served with a notice of illegal entry, notice of administrative removal, or is the subject of deportation action is liable to detention, such a person may, as an alternative to detention, be granted temporary admission or release on restrictions.
Home Office policy is that detention is to be used sparingly, and there is a presumption in favour of granting temporary admission or release on restrictions. Another alternative to detention is the granting of bail. The power to grant temporary admission to illegal entrants and persons served with notice of administrative removal who are liable to detention under paragraph 16 is set out in paragraph 21 1 and 2 to Schedule 2 of the Immigration Act and as amended by the Act.
This provides that the grant of temporary admission in illegal entry or administrative removal cases. It follows that immigration officers, with the authority of a CIO, are able to grant temporary admission in all illegal entry and administrative removal cases liable to detention under paragraph A person who is the subject of deportation action who is detained or liable to detention may be placed on a restriction order, under paragraph 2 5 of Schedule 3 to the Act.
This provides for similar conditions to be attached to the grant of release on restrictions in deportation cases to those in illegal entry and administrative removal cases, with the exception that it is for the Secretary of State to notify in writing any conditions attached to their release. Once a copy of both these forms are signed and returned, an IS is completed by the home office authorising release. The Home Office should no longer make the lodging of bail monies with representatives a condition of CIO or Secretary of State bail, nor should they ask the Tribunal, to make this a condition of bail.
CIOs or the Secretary of State may attach such conditions as are likely to result in the appearance of the person bailed at the required time and place. These conditions may include:. Amount of bail and acceptable sureties having regard to Home Office policy Guidance:.
Where there is a strong financial incentive to remain here, it is justifiable to fix bail or suggesting to the immigration judge that it be fixed at a larger sum. Property such as houses or businesses, or cars, may be offered but they are difficult to seize and should be rejected unless there are wholly exceptional circumstances in view of the potential hardship this could cause to others who have no part in the bail application.
Few applicants will have at their disposal in this country sufficient means to meet such a sum. It may therefore be necessary to accept from the applicant himself a recognizance or, in Scotland, bail bond in a nominal sum e. If the recognizance or bail bond taken from the applicant exceeds the nominal sum because he has cash or assets here, this sum should be taken into account.
The applicant should be required to produce sureties who are willing to enter into recognizances for the payment of sums which satisfy the above criteria. The Procedure Rule 38 requires that any application for bail shall include the names, addresses, occupations and dates of birth of any persons who have agreed to act as sureties.
Although sureties are not required under the Act, any decision to grant bail will normally be dependent upon the availability of nominated sureties. To be effective as a surety, a person needs to be able to exert some control over the applicant, thereby ensuring he complies with the conditions of bail. In order to be acceptable, a surety should:. Paragraph 2 5 Schedule 3 Immigration Act provides for the placing of restrictions on those who are liable to detention pending deportation.
In cases where immigration detention or continued immigration detention is not considered appropriate but action to pursue deportation continues, home office policy states that it will normally be appropriate to impose restrictions under a Restriction Order in order to prevent absconding.
A Restriction Order will normally impose:. Restriction Orders also include some degree of contact management. Electronic Monitoring combined with reporting to an Immigration Reporting Centre or police station is considered by the home office to provide the highest level of contact management and is likely to be appropriate in the highest risk cases. A CIO or the Secretary of State can refuse bail orally or by means of a brief, written explanation, similar to that used when temporary release is refused.
If a CIO or Secretary of State is not prepared to grant bail, he should advise the applicant that he may apply to the Immigration Tribunal. A CIO or the Secretary of State could justifiably use the exceptions in paragraph 30 to Schedule 2 of the Act which apply to immigration judges as reasons for not granting bail:.
This guidance is stated not to be binding because First-tier Tribunal Judges must apply the law and, if there is any divergence between the law and this guidance, the law will always be preferred. Nevertheless, First-tier Tribunal Judges should have regard to the guidance when considering bail applications and may need to give reasons if it cannot be applied in a particular situation. In essence, a First-tier Tribunal Judge will grant bail where there is no sufficiently good reason to detain a person and lesser measures can provide adequate alternative means of control.
A First-tier Tribunal Judge will focus in particular on the following five criteria which are in no particular order when deciding whether to grant immigration bail. The available alternatives to detention including any circumstances relevant to the person that makes specific alternatives suitable or unsuitable. A First-tier Tribunal Judge may require an applicant for bail to produce sureties.
This should not be an automatic requirement and the Judge must have due regard to the fact that people recently arrived in the country may have nobody to whom they could expect to stand surety for them. The purpose of requiring a surety in an appropriate case is to reduce the risk of a breach of bail conditions and increase confidence that the applicant will comply with all the conditions of bail. If there are no reasonable grounds for concluding that the applicant will abscond, a surety may well be unnecessary.
If the applicant fails to attend the surety risks losing all or some of the recognisance pledged to ensure that duty. A surety has no other obligations in law under the bail conditions. A surety need not reside at the same address as the applicant, and the degree of supervision that the surety may seek to exercise to ensure that the applicant attends when required is a matter for the surety in the light of the risk of the loss of the recognisance.
Confidence in a surety may be increased by the amount of the recognisance offered that should remind the surety of the principal duty. A surety who has no immigration status, regular address, means of subsistence or knowledge of the applicant may well be unsuitable to act as such, as will a surety who has criminal convictions that are not spent.
Details of sureties offered should be supplied in advance to the respondent who may well make background checks. If there are doubts as to identity or suitability of a proposed surety the judge will need to explore the facts and decide an amount the recognisance that will clearly focus his or her mind on the duties of a surety. A judge will need to verify the identity and residence of the proposed surety and their ability to stand in the sum offered. A surety should have been informed to bring some evidence of their ability to pay the recognisance if required to do so.
What constitutes sufficient proof may depend on the size of the recognisance and other circumstances of the case. There is no inflexible rule. Bank statements for three months before the hearing date, a building society or other savings account of similar duration may be sufficient. Where a bail application is made to the Tribunal and bail is granted by an Immigration Judge, a person granted bail will be made subject to a condition to ensure they maintain regular contact with the immigration authorities.
Such contact can take a number of forms. The most common is a requirement for the person granted bail to report weekly to a Reporting Centre maintained by the immigration authorities.
The relevant provisions for electronic monitoring are set out in s. This condition is most likely to be imposed if bail is to be granted to a person who has previously committed a criminal offence where the immigration authorities have requested it as an additional safeguard for the protection of the public. Where in the view of the Immigration Judge, there has been no material change in circumstances, the application will be dismissed on the papers and both the applicant and the Home Office will be informed.
Where in the view of the Judge, the applicant has demonstrated a material change in circumstances, a bail hearing will be listed, following the normal process. Where it seems that a bail application is most likely to be refused either just before or during bail proceedings and if an opportunity presents itself, it might be better to withdraw the bail application.
Section 7 of the Immigration Act amends schedule 2 to the Immigration Act to allow that where notice to remove a bail applicant from the United Kingdom have been set and served within 14 days of the date of the bail hearing, the Immigration Judge can only grant bail if the Secretary of State consents. If the Immigration Judge announces their decision to grant bail, the presenting officer will be asked if the Secretary of State will grant consent. The presenting officer will seek instruction from a senior civil servant.
If that consent is not given, the applicant will not be released on bail. Where the presenting officer makes mere assertions that removal directions have been set but provides no such evidence, the bail Judge can be invited to consider that the consent of the Secretary of State is not required in the absence of a copy of the actual removal directions. Bail may be refused by reference to a seeming previous or current failure to cooperate with the home office in relation to the re- documentation process.
The home office may require provision of relevant information or documents to assist them in in obtaining or issuing a return travel document during the course of deportation or removal proceedings. When considering the length of immigration detention, a First-tier Tribunal Judge will take into consideration any periods where a person has obstructed the reasonable inquiries of the immigration authorities or during an appeal or other legal proceedings which have the effect of preventing further investigation or the intended removal.
Where this is not available, people can be removed on the following types of document:. The Guide contains the following information for each listed country:. In response to a bail application, the home office may indicate in their bail summary that the time scale to obtain an emergency travel document is 2weeks and therefore removal being imminent, bail should not be granted.
On the other hand, awareness of the relevant guide may indicate in fact that there is no established timescale for the issue of an ETD or that it may take one month or two months to obtain the relevant removal document from the Embassy.
A counter argument would therefore be removal is not imminent. Section 35 of the Asylum and Immigration Treatment of claimants etc. Act applies in non-compliant cases. Section 35 action should only be taken against individuals who are eligible for removal from the UK. Non-compliance with such a requirement can be:. Examples of what might constitute reasonable excuse include the failure to attend an interview because of a medical appointment or difficulties with transport, or needing time for further information.
Chapter 18 — Enforcement instructions and guidance, Amended instructions for documenting removals and the implementation of section 35 of the Asylum and Immigration Treatment of claimants etc.
Act in non-compliant cases. During the course of consideration of a bail application, the Tribunal Immigration Judge has no jurisdiction to declare detention unlawful. The judge has no power to declare the detention unlawful and give any relief if it is considered to be; such matters need to be decided in the Administrative Court or in a claim for damages. Given the wide ranging powers of the immigration authorities in relation to the detention of non-nationals, First-tier Tribunal Judges should normally assume that a person applying for immigration bail has been detained in accordance with the immigration laws.
However, it will be a good reason to grant bail if for one reason or another continued detention might well be successfully challenged elsewhere. Although a First-tier Tribunal Judge does not have the power to decide whether the length of detention in a particular case is excessive and therefore unlawful , the judge must take into account the length of immigration detention because the period will be informative about why the person remains detained and whether they should continue to be.
The senior courts have been reluctant to specify a period of time after which the length of detention will be deemed excessive and as a result that bail should be granted.
Each case turns on its own facts and must be decided in light of its particular circumstances. However, it is generally accepted that detention for three months would be considered a substantial period of time and six months a long period. Imperative considerations of public safety may be necessary to justify detention in excess of six months. Detention of over a year has been held to be proportionate where there is a high risk of the applicant causing serious harm to the public. On the other hand, a period of weeks might be disproportionate where one of the effects of detention is to keep a parent apart from young children.
In practice, however a person can be detained past the point when it becomes no longer reasonable nor justifiable. The power to detain an illegal entrant, seaman deserter, port removal or a person liable to administrative removal or someone suspected to be such a person is in paragraph 16 2 of Schedule 2 to the Act as applied by section 10 7 of the Immigration and Asylum Act Section 62 of the Nationality, Immigration and Asylum Act introduced a free-standing power for the Secretary of State i.
The power to detain a person who is subject to deportation action is set out in paragraph 2 of Schedule 3 to the Act, and section 36 of the UK Borders Act automatic deportation.