My client is ill and or is self isolating due to coronavirus (COVID-19). What steps can be taken in the event they cannot report for bail, attend court or attend an arranged interview under caution?

Produced in partnership with Tori Adams of 4 King’s Bench Walk

‘…(1)If a person who has been released on bail in criminal proceedings fails without reasonable cause to surrender to custody he shall be guilty of an offence.

(2) If a person who—

(a) has been released on bail in criminal proceedings, and

(b) having reasonable cause therefor, has failed to surrender to custody, fails to surrender to custody at the appointed place as soon after the appointed time as is reasonably practicable he shall be guilty of an offence.

(3) It shall be for the accused to prove that he had reasonable cause for his failure to surrender to custody.

(4) A failure to give to a person granted bail in criminal proceedings a copy of the record of the decision shall not constitute a reasonable cause for that person’s failure to surrender to custody…’

It is therefore the case that, if a person fails to surrender to the custody of the court without reasonable cause, they shall be guilty of an offence. It is for the defendant to show reasonable cause for the failure. Similarly, under BA 1976, s 7:

‘…(1) If a person who has been released on bail in criminal proceedings and is under a duty to surrender into the custody of a court fails to surrender to custody at the time appointed for him to do so the court may issue a warrant for his arrest.

[…]

(2) If a person who has been released on bail in criminal proceedings absents himself from the court at any time after he has surrendered into the custody of the court and before the court is ready to begin or to resume the hearing of the proceedings, the court may issue a warrant for his arrest; but no warrant shall be issued under this subsection where that person is absent in accordance with leave given to him by or on behalf of the court.

(3) A person who has been released on bail in criminal proceedings and is under a duty to surrender into the custody of a court may be arrested without warrant by a constable—

(a) if the constable has reasonable grounds for believing that person is not likely to surrender to custody;

(b) if the constable has reasonable grounds for believing that person is likely to break any of the conditions of his bail or has reasonable grounds for suspecting that person has broken any of those conditions; or

(c) in a case where that person was released on bail with one or more surety or sureties, if a surety notifies a constable in writing that person is unlikely to surrender to custody and that for that reason the surety wishes to be relieved of his obligations as a surety…’

It is therefore important that, if the client is self-isolating, they inform the police station where they are due to report that this is the case as soon as possible. This is important as the client is at risk of being summonsed to court, which could lead to a warrant for their arrest if they still do not attend, or being charged with bail offence. As the client is following government advice, it is likely that this would amount to a reasonable excuse and so it would be helpful for the client, or solicitors, to call or write to the police station explaining the situation. As testing is not readily available, and it is not possible to attend general practitioner’s (GP) surgeries, it is hoped that they would accept this without a GP note, and no summons would be issued.

If the client were to be summonsed to court and could not attend as they were still self-isolating, the solicitor or client could and should write to the court explaining this. It is hoped that the court would give the client the benefit of the doubt in current circumstances, however they could issue a warrant for the client’s arrest if they thought appropriate.

In terms of attending an arranged interview/interview under caution, again the police station should be contacted either by the client or solicitor to inform them of the circumstances and try to rearrange the interview for a date following the completion of the self-isolation period.

For more information, see Practice Note: Failing to surrender, absconding and breach of bail conditions.