This guide is maintained as a current resource for September 2026 and covers only the laws of England and Wales. Information is for general guidance, not legal advice. Consult a qualified solicitor for advice specific to your situation.
Discover how remand decisions are made in criminal courts in England and Wales. This guide explains the Bail Act, statutory exceptions, risk assessments, the “no real prospect” test, youth considerations, and how courts decide between bail and custodial remand.
When a person is charged with a criminal offence in England and Wales, one of the first decisions a court must make is whether to release them on bail or remand them in custody (or on bail) while proceedings continue. This decision affects the defendant's liberty and has significant consequences for how the case unfolds. This article explains the legal framework, procedural steps, relevant tests, and practical considerations involved in remand decisions. It is designed for solicitors, students, and members of the public seeking a clear explanation of how remand decisions are made in criminal courts.
What Is a Remand Decision?
A remand decision determines where a defendant will be held between court appearances and up to trial (or sentencing). If a court decides not to grant bail, the defendant may be remanded in custody - meaning they remain in prison until the next court date.
Remand decisions arise when a person is first charged or when proceedings are adjourned and the court must decide whether bail is appropriate. The decision is governed mainly by the Bail Act 1976, supported by procedural rules and practice.
The Starting Point: Presumption in Favour of Bail
Under the Bail Act 1976, there is a presumption in favour of bail for defendants who have been charged but not yet convicted. This means that, in general, people should be released while their case continues unless there are good reasons not to do so.
How the Presumption Works
- The court begins with the position that bail should be granted.
- This presumption applies to most defendants unless a statutory exception applies.
The underlying principle is that a defendant should not be deprived of liberty before conviction without a strong justification.
Statutory Exceptions That Allow Custodial Remand
Although bail is the starting point, the Bail Act 1976 lists specific exceptions in Schedule 1 where the court can refuse bail and remand a defendant in custody.
Common grounds include where there are substantial grounds for believing that if released, the defendant would:
- Fail to surrender to custody (attend their next hearing),
- Commit further offences,
- Interfere with witnesses or otherwise obstruct justice,
- Pose a significant risk to public safety.
Each of these requires evidence specific to the defendant's circumstances.
The “No Real Prospect” Test
A key element of assessing bail is the “no real prospect” test, which focuses on whether there is a real prospect of an immediate custodial sentence if the defendant is convicted for the offence charged.
- If no real prospect of a custodial sentence is anticipated, then - even if one of the exceptions might otherwise apply - bail should normally be granted.
- This ensures that defendants who are unlikely to receive a prison sentence are not remanded in custody.
Recent proposed reforms in the Sentencing Bill 2025 would further clarify and strengthen this aspect of the test to reduce unnecessary custodial remands.
How the Court Applies These Tests
When making a remand decision, the court must:
- Consider the nature and seriousness of the offence, including potential sentence.
- Assess whether any statutory exceptions apply under the Bail Act.
- Evaluate the risk factors such as likelihood of non‑attendance, re‑offending, or interference with justice.
- Apply the “no real prospect” test to determine whether custody is justified in the individual case.
- Explain its reasons for refusing bail or imposing conditions on bail - including specific reference to the factors it has considered.
If bail is refused, the court may remand the defendant in custody for the period until the next hearing or trial.
Practical Considerations in Remand Decisions
Risk of Absconding
If the court believes a defendant may not attend future hearings, this can justify remand in custody. Evidence can include failure to comply with bail in the past or lack of stable residence.
Public Safety and Re‑offending
Custodial remand may be considered where there is credible evidence that a defendant would commit more offences if released.
Witness or Evidence Interference
This ground reflects the risk that the defendant may intimidate witnesses, tamper with evidence, or otherwise disrupt the administration of justice.
Children and Young Persons
For defendants under 18, courts have a statutory duty to consider their welfare and best interests, and to prefer non‑custodial remand wherever possible. Remand to custody should normally be limited to the most serious cases where risk cannot be managed in the community.
Procedural Safeguards and Transparency
Decisions on remand must be recorded with clear reasons, showing the factors that led the court to refuse bail or impose conditions. This accountability helps ensure that remand powers are used appropriately and consistently.
Research by legal reform organisations has highlighted concerns that some remand decisions made in magistrates' courts may not always reference the law fully or provide sufficient reasoning, underscoring the importance of clear judicial explanation.
Key Takeaways
Remand decisions in criminal courts in England and Wales involve a structured legal analysis:
- The starting point is bail, supported by the Bail Act 1976 presumption.
- Statutory exceptions allow custodial remand where necessary to manage risk.
- The “no real prospect” test ensures defendants unlikely to receive a custodial sentence are not remanded unnecessarily.
- Courts must give clear reasons for their decisions, considering offence seriousness, risk factors, and personal circumstances.
Understanding these principles helps clarify why courts make different decisions in similar cases and emphasises the importance of properly articulated reasons when bail is refused.
