What Is the Procedure for Bail Pending Appeal?

After conviction or sentencing in criminal proceedings, a defendant who has lodged an appeal may wish to remain at liberty while the appeal is heard. Bail pending appeal is the legal process that determines whether a person can be released from custody while their appeal is ongoing. This process is governed by statute, court rules and established practice in England and Wales. It involves specific applications, conditions, time limits and judicial discretion. This article explains how bail pending appeal works, who decides, what factors courts consider, and practical steps for appellants.

Why Bail Pending Appeal Matters

Appeals can take many months or even years to be heard. Without bail, a person convicted and sentenced to immediate custody must remain in prison while waiting for the Court of Appeal (Criminal Division) to decide their case. Applying for bail pending appeal offers an opportunity to secure release until the appeal is resolved. Bail pending appeal is discretionary, meaning it is up to the court to decide, and the usual presumption in favour of bail does not automatically apply after conviction.

Legal Basis and Court Rules

The main statutory and procedural framework for bail pending appeal includes:

• Section 19 of the Criminal Appeal Act 1968, which permits bail pending appeal.
• Criminal Procedure Rules (CrimPR) Part 39.8, which govern how bail applications are made in appeal proceedings.
• Practice Directions issued by the Judicial Office, which explain practical steps for bail applications at appeal.

Applications must follow the rules and be served on the Registrar of the Court of Appeal and the prosecution. The prosecution is given an opportunity to make representations before the application is decided.

When and Where to Apply

A bail pending appeal application can be made:

• After filing a notice of appeal against conviction or sentence;
• At the Court of Appeal (Criminal Division), once the appeal is lodged; or
• In some cases, to a single judge or the full court before the appeal is listed for hearing.

Under the rules, bail may be granted by a judge of the Court of Appeal or by the trial or sentencing judge if they have certified the case fit for appeal.

If a certification has already been given and the application is made early (within 28 days of conviction or sentence), bail may be considered by the original judge. However, if an application has already been made to the Court of Appeal, the certification route is not available.

The Application Process

Notice and Service

An application for bail pending appeal must be supported by the appropriate form (CrimPR Form B) and served on the Registrar of the appeal court and the prosecution. Written notice must usually be given at least 24 hours before the hearing, unless the court directs otherwise.

Prosecution Representations

The court will not decide the application without allowing the prosecution to make representations. This means the prosecution's views on whether bail should be granted must be considered before a decision is made.

Supporting Materials

The court generally requires relevant transcripts and appeal materials so that bail can be considered on the merits of the appeal and related factors. Applications marked as urgent - for example due to health, age or vulnerability - should highlight these issues to the court.

Conditions of Bail Pending Appeal

If bail is granted, the court may attach conditions designed to mitigate risk. Common conditions include:

• Residence at a specified address;
• Reporting regularly to police stations or bail supervisors;
• Restrictions on contact with certain people;
• Electronic monitoring or curfew conditions where appropriate.

The Registrar serves a certificate recording any conditions to the appellant, their custodian and others directly affected. Conditions must be complied with, and failure can lead to bail being revoked. Variations to bail conditions may be made only with the consent of the prosecution following statutory provisions.

Factors the Court Considers

There is no automatic right to bail pending appeal after conviction. The court must balance competing considerations, including:

• Strength and prospects of success on appeal;
• Time likely to elapse before the appeal is heard;
• Risk of absconding or failing to surrender to custody;
• Risk to public safety and victims;
• Nature and seriousness of the offence;
• Character, antecedents and community ties.

Because the usual presumption in favour of bail under the Bail Act 1976 does not apply post‑conviction, the appellant bears the burden of showing why bail should be granted.

In practice, a strong case on the merits of the appeal - including a real prospect the conviction or sentence will be overturned - is often persuasive. However, even a strong appeal argument may be outweighed by concerns about risk or public protection.

What Happens If Bail Is Refused?

If bail pending appeal is refused, the appellant remains in custody while waiting for the appeal hearing. There is usually no further right to appeal the refusal of bail at this stage, as the decision rests within the appellate court's discretion. In exceptional circumstances, renewed applications may be made, especially if circumstances change materially, such as new medical issues or additional evidence affecting the merits of appeal.

Practical Considerations

Timing and Preparation

Applications should be made promptly after the appeal is lodged. Legal representatives should prepare detailed grounds for bail, including reasons why custody during the appeal would be unjust or disproportionate.

Service on Parties

Ensuring timely service on the Registrar and prosecution is crucial, as delays can impact whether the application is heard before critical dates in the appeal timetable.

Compliance with Conditions

Once bail is granted, strict compliance with conditions is essential. Breaches may lead to revocation of bail and return to custody pending the appeal decision.

Common Questions

Can bail pending appeal be granted at any stage?
Yes. Bail can be granted by a single judge, the full Court of Appeal, or the trial judge with certification, but the timing and procedure vary depending on how far the appeal has progressed.

Does the prosecution oppose bail?
The prosecution may oppose bail and make representations on risk factors. The court must consider these before deciding.

Are there automatic rights to bail after conviction?
No. After conviction, there is no presumption of bail. Granting bail pending appeal is at the court's discretion based on all relevant factors.

Can bail conditions be varied?
Yes, but only with the consent of the prosecution and subject to statutory provisions. Changing conditions usually requires formal application and court approval.

Key Takeaways

The procedure for bail pending appeal in England and Wales enables defendants to apply for release from custody while their appeal is considered. This process involves serving notice on the court and prosecution, making credible submissions on the merits of appeal and risk factors, and accepting any bail conditions imposed. Because post‑conviction bail is discretionary, applicants must demonstrate why release is justified and how conditions address concerns about public safety and surrender. Understanding this process helps appellants and their legal representatives navigate the options available while waiting for appeal outcomes.