Two high-profile murder cases have focused public attention on a defendant’s right to bail


All last week, the press were trying to find out why a judge granted bail to Garry Weddell, the police inspector accused of murdering his wife who then went on to kill his mother-in-law and himself.



Judge Bevan QC did not do himself any favours when he told the Evening Standard he could not remember the ‘precise details’ of Weddell’s four bail applications last year.



To be fair, not even a judge would be expected to remember all the details of a case several months on – that is what transcripts are for – but it made for uncomfortable headlines.



By Friday, the Judicial Communications Office had got hold of the transcripts and was preparing to publish them. They included nothing confidential and there could be no prejudice to a future trial.



But then the coroner stepped in. David Morris, whose area covers Bedford and Luton, will be holding the inquests into the deaths of Weddell, his wife Sandra and her mother Traute Maxfield.



The coroner was ‘anxious to ensure’ that police enquiries into the deaths were not ‘inhibited’ by publication of the transcripts, a spokesman said. To everyone’s immense frustration, they will therefore remain secret until the end of this month.



That said, it is not difficult to see why Weddell was granted bail. A quick glance at Blackstone’s Criminal Practice – the poor man’s Archbold – tells us that the Bail Act 1976 creates a rebuttable presumption in favour of bail. The gravity of the charge is not an automatic reason for refusing to release an unconvicted defendant pending trial.



If a person charged with murder, or another very serious offence, has already been convicted of such an offence, he will not be granted bail unless there are exceptional circumstances that justify it. But, of course, Weddell, a serving police officer, had no such convictions.



So Judge Bevan will have looked more closely at the Bail Act, which says that a defendant charged with an imprisonable offence need not be granted bail if there are ‘substantial grounds’ for believing that he would fail to surrender to custody, commit an offence on bail or interfere with witnesses.



Weddell, of course, did all three. But what evidence of this was there at the time he was granted bail? In its absence, he was entitled to be released – with or without conditions.



One condition in his case was that he should provide a surety in the sum of £200,000. This was put up by Weddell’s brother Geoffrey, a barrister who specialises in personal injury work and claims against the police.



Many people seem to think that a surety has to hand over the cash at the outset. That is not the case in England and Wales, although a defendant can be required to provide ‘security’ – which means depositing something of value, to be forfeit in the case of non-surrender.



But the difficult question now is whether Geoffrey Weddell will have to forfeit the entire £200,000 in which he stood surety. He would no doubt argue that he cannot now secure his brother’s attendance, and the law does not demand the impossible.



But a surety may have to pay up even if he is not to blame for the failure to surrender. As Lord Widgery, the Lord Chief Justice, said in 1976, ‘the real pull of bail, the real effective force that it exerts, is that it may cause the offender to attend his trial rather than subject his nearest and dearest who has gone surety for him to undue pain and discomfort’.



It is up to the surety to show why he should not forfeit all or part of the money, Lady Justice Butler-Sloss explained in 1995. ‘The presence or absence of culpability is a factor,’ the appeal judge continued, but the absence of culpability ‘is not in itself a reason to reduce or set aside the obligations entered into by the surety to pay in the event of a failure to bring the defendant to court’.



Bail was also a factor in another murder case last week. Adam Swellings, 19, from Warrington, was one of a group of drunken youths who kicked and punched Gary Newlove, a father-of-three, to death. It emerged that Swellings had been released on bail only hours before the murder.



The youth had admitted common assault and obstruction of a police officer. Warrington magistrates indicated that a prison sentence would not be imposed but ordered further probation reports before deciding on the most appropriate community sentence.



Nobody would argue that a person should be remanded in custody pending a non-custodial sentence. But Swellings had a history of violence which could have led to a prison sentence.



We can say with some confidence that two murders could have been avoided if Weddell and Swellings had not been granted bail. But that is not to say that we should – or could – lock up all those who might commit a murder at some point in the future.



Keeping an unconvicted person in custody for what may be several months is a serious step to take. Quite apart from the cost to the state and the increased difficulties of preparing for trial, we are talking here about depriving an innocent person of his right to liberty. Article 5 of the Human Rights Convention does permit exceptions to this right, broadly in line with the Bail Act. But rounding up the usual suspects is not a very efficient way of preventing future crimes.



joshua@rozenberg.net