What is failure to comply with release order?
After a prosecutor charges someone with a crime, the court usually releases the person on bail conditions. If they breach those bail conditions, they’re charged with a breach. The formal name for this is failure to comply with release order.
When the police release someone on an undertaking, the offence is called breach of undertaking. If the person fails to attend court after the police served them a summons or promise to appear, they’re charged with failure to comply with appearance notice or summons.
If someone fails to attend court after a judge released them on bail, they’re charged with failure to attend court. A breach of release conditions is similar to breach of probation or breach of recognizance (i.e peace bond). All of these offences can be lumped in as “breach offences”.
What happens if someone breaches a bail condition?
If someone breaches a bail condition, the police must first decide whether to recommend a charge to the prosecutor. If they do, the prosecutor has several options:
(1) They might decline to approve a charge because they don’t feel the breach was serious enough or clear enough;
(2) If the breach is technical, like being a bit late for curfew, they can refer the matter to a judicial referral hearing;
(3) If the breach is minor or unclear, they might get a justice to issue a warrant for the accused’s arrest. The police will then bring the accused into court for a new bail hearing, but the prosecutor won’t charge the accused with a new offence;
(4) In other cases, the prosecutor will charge the accused with a breach.
After the prosecutor charges the accused with a breach, a justice issues a warrant for their arrest. The police will find the accused, arrest them, and bring them into court. The accused will have a new bail hearing.
If the accused has previously breached their bail, the prosecutor is more likely to charge any new breaches. If the judge is willing to re-release the accused, it’ll usually be on a stricter bail order than the previous one.
What are some defences to breach charges?
Many breach charges are open and shut, meaning the prosecutor can easily prove them. Other times, the accused might not be guilty because of a technical defence. For example, the “breached” bail condition might be ambiguous. That can leave a judge in reasonable doubt about whether or not the accused truly breached it.
If a judge finds an accused “not guilty” of their original criminal charge, but the accused is guilty of a breach of bail, the prosecutor might be willing to drop the breach charge. If the prosecutor isn’t willing to drop the breach charge, the judge might still be willing to impose a lenient sentence for it.
What should someone do if there’s an arrest warrant out for them because they breached their bail?
If a justice issues a warrant for an accused’s arrest, it’s just a matter of time before the police will arrest them. The first thing the accused should do is tell their lawyer so that their lawyer can begin to prepare for their new bail hearing.
The next thing the accused should do is turn themselves in at the courthouse. That shows good will. Their lawyer can then work to secure their re-release as soon as possible. In some courthouses it’s possible to have an arrest warrant “notionally executed” so that the accused doesn’t need to be taken into custody.
You can find some of the firm’s case results for failing to comply with release order HERE. Note that the previous name for this offence was “breach of undertaking or recognizance”.