BAIL - A Dozen Issues to Digest

This month’s episode tackles one of the most technical yet practical areas of criminal law - bail. From time limits to informal hearings and changes in circumstances, Clive Smith and Colin Beaumont explore why bail occupies “an entirely separate train carriage” in criminal practice, and why understanding its quirks is essential for every advocate.

The discussion begins by contrasting bail with other areas of law: less formal, full of exceptions, and uniquely centred on the liberty of the subject. Colin and Clive highlight the paradox between rigid procedural timeframes and the informality of evidence rules, both examples of how liberty can be limited and then granted back by exception.

From there, the episode moves through practical advocacy — how to shine in bail applications, the importance of preparation, and why even losing well can build trust with clients and their families. They share anecdotes from youth court, Crown Court, and the magistrates’ court, bringing to life the strategy behind every application — when to speak, when to hold back, and how to balance persuasion with precision.

The conversation dives deep into core legal principles and case law:
Whether the court must accept the prosecution’s case at its highest;
The importance of Regina v Lee and common law disclosure duties;
Tactical approaches to “insufficient information” under paragraph 5;
Key statutory references from the Bail Act 1976, PACE, and Criminal Justice and Public Order Act 1994; and
The exceptional circumstances test under section 25 CJPOA and its human rights evolution.

They also explore the two bites of the cherry rule, bail appeals from the magistrates’ court to the Crown Court, and the process for varying pre-charge bail conditions under section 47.1E PACE — complete with cautionary tales of advocates caught off guard by procedural time limits.

As the discussion unfolds, the hosts turn philosophical again: can the passage of time itself constitute a change in circumstances? Drawing on European case law such as Letellier v France and Clouth v Belgium, they argue that it can - particularly in today’s climate of backlogs and delays.

Finally, the episode closes with a reminder that bail remains one of the most important protections in criminal justice - a daily safeguard of liberty, a test of advocacy, and a constant reminder of why precision and fairness matter in every courtroom.

For more information or to book a place on a forthcoming course, please visit: legal-eagle-training.com

Chapters:
00:25 – The quirks of bail and the liberty of the subject
03:40 – COVID, psychoactive substances, and legislative parallels
06:00 – Bail as advocacy: shining in difficult cases
08:00 – Do the defence have to agree with the prosecution case?
09:30 – Common law disclosure and Regina v Lee
10:45 – Challenging case summaries and practical examples
13:10 – Positive cases and supporting witnesses
14:30 – Early charge and overzealous custody decisions
15:45 – Two bites of the cherry: paragraph 5 and insufficient information
18:00 – Sureties, securities, and bail in principle
20:00 – Reconsideration of police bail and section 5B Bail Act
22:10 – Prosecution challenges and judicial discretion
24:00 – Presumptions in favour of bail
25:30 – Section 25: “no bail for second offence” and its human rights history
29:45 – Bail appeals to the Crown Court and procedural pitfalls
31:50 – Varying pre-charge bail under section 47.1E PACE
33:00 – Exceptions under Schedule 1 of the Bail Act
34:10 – CPS and defence appeal routes to the High Court
36:00 – The writ of habeas corpus and unlawful detention
38:30 – Passage of time as a change in circumstances
41:00 – Admissibility of previous convictions and Section 74
42:10 – European influence and humour in the courtroom