First Hearings

Question 1

When does the first hearing occur?

Answer 1

Where the defendant is on bail, the first hearing must be within:

• 14 days of being charged- if the prosecutor anticipates a guilty plea which is likely to be sentenced in a magistrates’ court;
• 28 days of being charged- where it is anticipated that the defendant will plead not guilty, or the case is likely to go to the Crown Court for either trial or sentence.

If a defendant was detained in police custody following charge they must be brought before the next available court.

Question 2

Where does the first hearing occur?

Answer 2

All adult defendants have their first hearing in a magistrates’ court

· Summary-only offence: trial and sentence at the magistrates’ court

· Either-way offence where:

o magistrates’ court accepts jurisdiction and D consents to summary trial- trial at the magistrates’ court and sentence at the magistrates’ court or Crown Court.

o magistrates’ court declines jurisdiction or D elects Crown Court trial- trial and sentence at the Crown Court.

· Indictable-only offence: trial and sentence at the Crown Court.

This element deals with first hearings in the magistrates’ court and pleas.

Question 3

Does the defendant need to attend the first hearing?

Answer 3

The defendant must be present at the first hearing. If the defendant was bailed by the police to attend court and fails to attend, the court can issue a warrant for the defendant’s arrest. Failure to surrender to bail at the appointed time is an offence under the Bail Act 1976.

When the defendant does not attend as required then the court will consider whether it can proceed with the hearing anyway.

This will not usually be possible if the hearing will deal with allocation of an either-way offence or sending an indictable (either-way or indictable only) case to the Crown Court.

If the defendant has been summonsed to court (typically used for non-imprisonable, minor or road traffic offences) the defendant does not commit any offence for non-appearance. Provided the prosecution has served the statements and the defendant has been warned of the hearing, then the case can proceed in the absence of the defendant. If convicted, then the penalty can also be imposed in absentia.

Question 4

What is the IDPC?

Answer 4

Initial details of the prosecution case (IDPC)

Criminal Procedure Rules, Part 8

The prosecution is obliged to serve the initial details on the court officer as soon as practicable and in any event, no later than the beginning of the day of the first hearing.

Where a defendant requests those details, the prosecutor must serve them on the defendant as soon as practicable and, in any event, no later than the beginning of the day of the first hearing.

A solicitor would almost certainly request the documents. The Crown Prosecution Service now uses electronic case files. These can be sent to defence representatives via secure email.

Ordinarily, the failure to supply initial details does not constitute a ground upon which a court may dismiss a charge or give rise to an abuse of process application. The usual remedy is for the court to adjourn a first hearing and/or award costs to the defence for the prosecution’s failure to serve.

Initial details – content

Initial details must include:

• a summary of the circumstances of the offence;
• any account given by the defendant in interview;
• any written statements and exhibits that are available and material to plea and/or mode of trial or sentence;
• victim impact statements; and
• the defendant’s criminal record.

The rules prescribe that where the defendant was in police custody immediately before the first hearing, initial details need only comprise:

• a summary of the circumstances of the offence; and
• the defendant’s criminal record.

Initial details

• The information supplied must be sufficient at the first hearing to allow the court to take an informed view on plea and venue for trial.
• Where no guilty plea is anticipated, they should be sufficient to assist the court in identifying the real issues and in giving directions. The information required for the Preparation for Effective Trial (PET) form must be available and where there is to be a trial, the parties must complete the form.

Question 5

What happens at first hearings for summary and either-way offences?

Answer 5

The first hearing will be the hearing that deals with matters such as:

• plea;
• bail;
• representation and legal aid.

Depending on the type of offence it might progress to sentence.

Question 6

What happens at first hearings for indictable only offences?

Answer 6

The magistrates’ court has no jurisdiction to deal with an indictable only offence and so a defendant charged with an indictable only offence makes only a brief first appearance in a magistrates’ court.

The court will deal with bail and legal aid then the defendant is sent to the Crown Court where they will enter a plea. The hearing at the Crown Court is three or four weeks later depending on the defendant’s bail status.

Question 7

When will summary only offences go to the crown court?

Answer 7

• There is an important exception to the rule that summary only offences never go to Crown Court.
• This happens when a defendant is charged with an offence that is to be tried in the Crown Court and there is a summary only offence which is connected to the indictable offence.
• If the summary only offence is one of those listed on the next page and is before the magistrates’ court at the same hearing as the indictable offence, it must be sent to the Crown Court.

Related summary matters that must be sent for trial and included on an indictment (s 40 CJA 1988)

• Common assault
• Assaulting a prison or secure training centre officer
• Taking a motor vehicle or other conveyance without authority
• Driving a motor vehicle while disqualified
• Criminal damage

A summary offence that is on the s 40 Criminal Justice Act (CJA) 1988 listand is related to the matter that has been sent to the Crown Court for trial can be included on the indictment and the jury will consider it then return a verdict.

Related summary matters that must be sent for plea only (s 51(3) CDA 1998)

Any summary matter not listed in s 40 CJA 1988 but that is punishable by disqualification from driving or imprisonment.

Where a summary only offence is not on the list in s 40 it will not appear on the indictment. When the trial for the indictable offence is over, the accused will be asked to enter a plea in relation to the summary only offence. If D pleads guilty, the Crown Court may deal with the offence in any way that would have been open to a magistrates’ court. If D pleads not guilty, the Crown Court has no further power to deal with the offence. If there is to be a trial it is remitted to a magistrates’ court.

Question 8

When is the plea before venue?

Answer 8

· Summary-only offence: trial and sentence at the magistrates’ court

· Either-way offence where:

o magistrates’ court accepts jurisdiction and D consents to summary trial- trial at the magistrates’ court and sentence at the magistrates’ court or Crown Court.

o magistrates’ court declines jurisdiction or D elects Crown Court trial- trial and sentence at the Crown Court.

· Indictable-only offence: trial and sentence at the Crown Court.

Plea before venue

At a first hearing when the offence is one which is triable either-way, the defendant will be asked to indicate their plea. The defendant is supplied with a copy of the initial details by the prosecutor in accordance with Criminal Procedure Rules, Part 8. The charge is written down and read out to the defendant.

The defendant can:

• indicate guilty;
• indicate not guilty; or
• give no indication.

Where no indication is given, it is treated as a not guilty indication.

This is part of the hearing is known as ‘plea before venue’ and this procedure is set out in s 17A Magistrates’ Courts Act 1980.

Before they indicate their plea, the defendant must be warned that if they plead guilty, they can be:

• sentenced by the court; or
• committed to the Crown Court for sentence under s 14 Sentencing Act 2020 if a magistrates’ court is of the opinion that its sentencing powers are insufficient to deal with the offence.

A guilty plea must be unequivocal; that is to say, it must be one free of any suggestion or statement that the defendant is not guilty, either because they purport to rely on a defence or refuse to accept an element of the offence. If a plea is equivocal, it will be treated as a not guilty plea rather than a guilty plea. Examples of an equivocal plea are:

• To an allegation of inflicting grievous bodily harm- ‘Guilty, but I was acting in self-defence’
• To an allegation of theft- ‘Guilty, but I was going to give it back’

Question 9

What happens if a defendant pleads guilty to an either-way offence on first hearing?

Answer 9

If the defendant indicates a guilty plea the court will treat that as a formal plea of guilty and proceed to sentence.

As an either-way offence can be sentenced in either a magistrates’ court or the Crown Court, a magistrates’ court must consider whether its sentencing powers would be sufficient in the circumstances given. A magistrates’ court does not have power to impose more than 6 months imprisonment in respect of any summary only or either-way offence (s 224 Sentencing Act 2020).

For two or more either-way offences, the maximum sentence in the magistrates’ court is 12 months imprisonment.

If the court decides that its powers are sufficient then sentence may be passed immediately or adjourned for the preparation of a pre-sentence report (‘PSR’). The sentencing process is considered in more detail in another element.

Where the court adjourns sentence for the preparation of a PSR, it must be careful not to create an expectation that the offender will be sentenced in a magistrates’ court if there is a possibility of committal for sentence.

The court should make it clear that all sentencing options, including committal to the Crown Court for sentence, remain open.

Question 10

What is committal for sentence?

Answer 10

If the court decides that its powers are insufficient either because the sentence exceeds their maximum, or because the defendant should be made subject to a sentence of a kind that they cannot pass, then the defendant will be committed for sentence to the Crown Court.

A magistrates’ court should order a PSR for use by the Crown Court if it considers that:

• there is a realistic alternative to a custodial sentence; or
• the defendant may be a dangerous offender; or
• there is some other appropriate reason for doing so.

The defendant will make their next appearance at the Crown Court to be sentenced by a Crown Court Judge who will be able to pass a sentence of anything up to the Crown Court limit for the offence.

Question 11

What happens if a defendant pleads NOT guilty to an either-way offence on first hearing?

Answer 11

If a defendant indicates a not guilty plea then the court moves on to consider where the trial will be held. This is known as allocation and is set out in s 19 Magistrates’ Courts Act 1980. Additionally, the court must follow the allocation guideline.

The court must take into account the allocation guideline which indicates that either-way offences should generally be tried summarily unless:

• the court’s sentencing powers would be insufficient i.e. the outcome would clearly be a sentence in excess of the court’s powers for the offence(s) after taking into account personal mitigation and any potential reduction for a guilty plea; or
• for reasons of unusual legal, procedural or factual complexity, the case should be tried in the Crown Court.

Question 12

What is the allocation hearing?

Answer 12

The allocation guideline states that in cases with no factual or legal complications the court must bear in mind its power to commit for sentence after trial (s 14 Sentencing Act 2020) and, crucially, may retain jurisdiction notwithstanding that the likely sentence might exceed its powers.

This means that, in practice, cases are likely to be retained and tried in the magistrates’ court unless the offence was clearly so serious that only the Crown Court should have the power to deal with the defendant.

Given the key consideration for a magistrates’ court when deciding whether to accept jurisdiction is whether its sentencing powers are adequate, the court will need to consider the relevant sentencing guidelines and any associated case law.

The court should also take into account the submissions of the parties.

Question 13

What does the prosecution do at an allocation hearing?

Answer 13

• Opens with the facts.
• Outlines the defendant’s offending history (if any).
• Makes submissions as to where the trial should be held consistent with the allocation guidelines.

The submissions will cover the nature and seriousness of the offence including any particular aggravating and mitigating features.

Question 14

What does the defence do at an allocation hearing?

Answer 14

• Can make submissions as to venue.
• Where they agree with the prosecution it may be no more than saying that.
• However, if the prosecution submits that the case should be heard in the Crown Court and the defence disagree, they will need to make fuller, more persuasive submissions at this point.

The court must then decide whether to allocate the case to a magistrates’ court (accept jurisdiction) or send it to the Crown Court.

If they decide to allocate it to the Crown Court, the matter is sent pursuant to s 51 Crime and Disorder Act 1998 and the defendant will make their next appearance at the Crown Court. The defendant has no right to elect a magistrates’ court trial in these circumstances.

If the court decides to retain jurisdiction (s 20 Magistrates’ Courts Act 1980), there are further steps in this process.

The court will explain to the defendant that:

• The court has decided that summary trial is more suitable.
• The defendant can consent to be tried summarily or, if D so wishes, be tried by a jury.
• If D is tried summarily and is convicted, D may still be committed to the Crown Court for sentence.

Question 15

When does an indication of sentence happen?

Answer 15

• The defendant is able to ask for an indication of sentence if they were to plead guilty instead.
• The court has the discretion as to whether they will give an indication.
• The court can decline to give an indication.
• If they do, it must be confined to telling the defendant whether the sentence would be custodial or non-custodial.
• If the defendant asks for an indication and one is given, they can change their plea to guilty and the process followed will be as if they had pleaded guilty from the outset.
• Where a non-custodial sentence is indicated, that indication will be binding on any later magistrates’ court.

Question 16

What is election?

Answer 16

If the defendant does not ask for an indication, or if the court refuses to give one, or if having heard the indication the defendant sticks with their not guilty plea, the court asks the defendant:

• if they consent to being tried in a magistrates’ court, meaning the case will be adjourned; or
• if they want to elect to be tried by a jury meaning the case will be transferred to the Crown Court.

This is known as ‘election’.

The defendant will be told that even if they consent to summary trial, the court still has the power to commit them to the Crown Court for sentence.

Note: If the defendant chooses not to change their plea to guilty then the indication given will not bind any later court in the event that the defendant falls to be sentenced.

Advice on election

It is one of the duties of the defendant’s legal representative to advise the defendant on whether to consent to summary trial or to elect trial.

Elect trial on indictment

Quite often the advice will be to elect trial on indictment in the Crown Court:

• the acquittal rate is higher in the Crown Court; and
• the separate tribunals of law and fact in the Crown Court can be advantageous to the defendant. Voir dire procedures allow the judge to hear arguments to exclude evidence in the absence of the jury.
• it is not always the case that a Crown Court judge will sentence more harshly than a magistrates’ court.

Consent to summary trial

Proceedings in a magistrates’ court:

• are less formal
• the waiting time before the trial date is much shorter
• the trial itself is much quicker.
• do not require a defendant to serve a defence statement.
• are less expensive than the Crown Court.
• magistrates have to provide reasons for their decision whereas juries do not give reasons.
• magistrates have less sentencing powers than those of the Crown Court. However, the magistrates’ court has a power to commit to the Crown Court for sentence even after trial.

Question 17

What happens is the defendant consents to a summary trial?

Answer 17

D consents to summary trial

If the defendant consents to summary trial then the court:

• progresses as if the case were a summary only offence
• sets a trial date
• conducts any case management that is required.

Question 18

What happens if the defendant elects for a crown court trial?

Answer 18

If the defendant elects trial at the Crown Court then:

• the matter is sent pursuant to s 51 Crime and Disorder Act 1998;
• the defendant will make their next appearance at the Crown Court.
• the court will complete the ‘Case sent to the Crown Court for trial – case management questionnaire’.

Question 19

What are the exceptions to the rules of which courts hear which offences?

Answer 19

The simple rule that summary only offences must be dealt with in the magistrates’ court, indictable only must be sent to Crown Court and either-way can be dealt with in either court is, naturally, subject to some exceptions.

In relation to either-way offences there are some key ‘special cases’ which affect the jurisdiction of some offences nominally classed as either-way by making some into summary only and others indictable only.

The key ones are:

• Low value shoplifting
• Criminal damage
• Cases involving complex fraud or where children may be called as witnesses

‘Special’ cases

Low-value shoplifting

Low value shoplifting is stealing goods valued at £200 or less.

Although theft is a an either-way offence low value shoplifting is treated as summary only.

The maximum sentence is 6 months.

Somewhat oddly, the defendant still has the right to elect to be tried at the Crown Court under s 22A(2) Magistrates’ Courts Act 1980.

Criminal damage

Although classed as either- way the offence can be dealt with at the Crown Court only when the damage is:

• over £5000; or
• caused by fire (arson).

If £5000 or less, the offence becomes summary only and must be dealt with in the magistrates’ court. When this is the case, the maximum penalty that can be imposed is 3 months’ imprisonment or a level 4 fine. This is an exception to the normal rule regarding magistrates’ powers.

‘Special’ cases

Section 50A Crime and Disorder Act 1998 provides that cases involving complex fraud or where children may be called as witnesses should be sent directly to the Crown Court, if notice has been given under:

• section 51B (regarding fraud); or
• section 51C (regarding children).

Although the offences themselves might be classed as either-way, these type of cases will be sent to the Crown Court without going through the plea before venue or allocation procedure.

For all intent and purposes, they are indictable only.

Complex fraud

To be complex fraud, at least two of the following must be present:

• The amount is alleged to exceed £500,000
• There is a significant international dimension
• The case requires specialised knowledge of financial, commercial, fiscal or regulatory matters such as the operation of markets, banking systems, trusts or tax regimes
• There are numerous victims
• There is substantial and significant fraud on a public body
• The case is likely to be of widespread public concern or the alleged misconduct endangered the economic well-being of the United Kingdom, for example by undermining confidence in financial markets

Question 20

What is adjournment?

Answer 20

In any case where the defendant is presented to court, and the court cannot conclude the case in one hearing, the case will have to be adjourned. It is important to note the word ‘adjournment’ applies to the case. It does not describe what happens to the defendant.

Question 21

What is a remand?

Answer 21

When a defendant is sent away and told to come back another day, it is called a ‘remand’. A defendant on remand is obliged to come back to court to continue with the case. The remand may either be served in custody, or served in the community on bail.

Remanded into custody

Who applies?

It is for the prosecution to apply to have the defendant remanded into custody if that is its desire.

How?

To have the defendant remanded into custody the prosecution present objections to bail, due to the presumption in favour of bail.

What objections?

The objections that one can raise are finite and defined by law. They vary according to the type of offence involved. There are more and broader objections for more serious offences and fewer and more qualified objections for more trivial offences.

Why the variety of objections?

If a defendant is refused bail and is kept in custody for a more trivial offence, then the worry is that the defendant will be in custody for longer whilst awaiting trial than the defendant would ever be in custody as part of a sentence for the offence. This is clearly undesirable.

Question 22

Who applies for bail and when?

Answer 22

Once a prosecution objection to bail has been raised, it is then for the defence to apply for bail. All cases commence in the magistrates’ court, and so the first decision in relation to bail is made by that court (except in murder cases, where only a Crown Court Judge can grant bail). The defence and the prosecution can appeal decisions on bail from the magistrates.

Bail can be granted subject to conditions, and it is important for a defence advocate to consider what sort of conditions might alleviate the court’s concerns in relation to the defendant’s behaviour on bail.

Question 23

Is there a right to bail?

Answer 23

• The prosecution needs to apply for the remand into custody of a defendant. This is because of a principle commonly referred to as the ‘right to bail’. Following the Bail Act 1976 s.4, the court must presume that a defendant is entitled to bail, and it is only if an objection is properly made out that bail can be refused.
• The purpose of the right to bail is to secure the notion that the prosecution has to apply to remove bail as a matter of normal practice. In all cases where the right to bail applies, it is therefore the prosecution that has to make the first move and apply for the defendant to be remanded into custody, ie to rebut the right to bail on a legally specified objection.
• The idea of the presumption in favour of bail has been made more complicated by offences like murder, where the language of the statute appears to remove the presumption.
• The right to bail still applies to a person after conviction when the case is adjourned to assist in sentencing, although the concerns about a defendant absconding may be more serious following conviction. The right to bail also applies when a person is alleged to have breached a requirement of a community order.
• Note that there are time limits for getting a defendant through the criminal justice system, and the right to bail usually becomes absolute if the case has not progressed according to the time limits.

Question 24

When does the right to bail NOT apply?

Answer 24

The right to bail does not apply to:

(a) those appealing their conviction or sentence; or

(b) to defendants being committed for sentence from the Magistrates’ Court to the Crown Court.

Bail can be granted in both these cases; it is simply that the presumption does not apply.

Both exceptions are logical in that if, in relation to the first, a defendant is appealing, it is because a court has already concluded that the defendant is guilty (and may have sentenced D already). The courts are less anxious about putting a person already determined to be guilty into custody than those who are still awaiting their trial.

Similarly, if a defendant is committed for sentence from the magistrates’ court to the Crown Court, it is the view of the magistrates’ court that the defendant is deserving of a sentence of more than six months (or more if the magistrates’ limit is higher). It is therefore a very low risk that a defendant put into custody at this point will receive a lesser sentence than the time the defendant will serve in custody waiting for the case to be moved from the magistrates’ to the Crown Court.

Question 25

When can the prosecution object to bail?

Answer 25

(a) ‘Indictable’ cases- are those that are either ‘indictable only’ or ‘either-way’ cases. Most familiar offences in crime are indictable, and the objections for these offences are therefore the most important to learn.

(b) Summary cases, imprisonable- Not all summary only cases carry custody as an available sentence. Common assault would be a good example of an offence which is summary only, but can attract a custodial sentence.

(c) Summary non-imprisonable- There are hundreds of these offences, many related to ‘road traffic’. These offences present an obvious problem – what do you do if a defendant simply won’t attend court, but is only charged with a minor offence for which the defendant cannot be punished with custody (eg having a defective fog lamp on D’s car)? Do we really allow for the courts to remove bail for trivial offences?

Question 26

What are the substantial grounds for denying bail?

Answer 26

(a) fail to attend a subsequent hearing (failure to surrender to custody);

(b) commit further offences on bail; and/or

(c) interfere with witnesses, or otherwise obstruct the course of justice eg witness intimidation or destruction of evidence.

Question 27

What the test for the prosecution having substantial grounds for believing a ground for denying bail?

Answer 27

The threshold to which these grounds must be made out is ‘substantial grounds for believing’ that if granted bail, the defendant will behave in a way that the ground specifies (eg will commit further offences on bail). This is not a particularly high test.

It is not for the court to conclude that the defendant would behave in the way specified in the ground, or even that D’s behaviour would be more likely than not to include the behaviour in the ground. It is not enough for the judge simply to have a subjective perception of one or more of these three risks.

It is only necessary to show that the fears of the behaviour happening have substance and merit. This enquiry is a factual one, and is not a trial per se, and so there are no formal rules of evidence in determining if the ground is made out. Representations will be made by both the prosecution and the defence but generally neither party needs to call witnesses or produce documentary evidence. Witnesses can be called (such as a police officer or the person proposed as a surety although it’s rare) and hearsay evidence is permitted (i.e. statements made out of court presented in evidence as proof of its contents). The magistrates have an inquisitorial role in this process and may ask questions of either party or insist that sureties are called to give evidence of their means and relationship with the defendant.

Question 28

What is the final filter when determining whether bail should be denied?

Answer 28

A recent addition to the law is a final filter on considering bail under one of the ‘big three’ objections.

The final filter is that bail should not be removed under one of these grounds if the defendant is charged with an offence (or offences) where there are ‘no real prospects’ of the defendant receiving a custodial sentence.

Theft is an indictable offence, and so, strictly speaking, even stealing a banana is indictable. If there is no real prospect of the sentence for the offence being custodial, then the ground of objection cannot succeed.

The ‘big three’ grounds are available for any indictable offence (carrying imprisonment).

Question 29

When can a defendant be denied bail for a summary offence?

Answer 29

For lesser summary offences, the general rule is that they are only available if a defendant, having been given bail, breaches a condition of that bail in these proceedings or has a conviction for ‘fail to surrender’ in their past.

The logic is that for offences of lesser seriousness, it is broadly assumed that a defendant would not risk absconding, or interfering with witnesses and is not so committed to crime that the defendant will offend on bail.

However, if the defendant’s behaviour on bail suggests otherwise and D breaches a condition of bail (or has a history of this), then the grounds for objection become eligible grounds to remand D in custody. The grounds therefore are only activated by a trigger event – namely the defendant being arrested for a breach of bail.

Question 30

After the three main grounds, what are other objections to bail?

Answer 30

a) a remand in custody would be for the defendant’s own protection;

b) the court has insufficient information to deal with the issue of bail, and so remands in custody for a (short) period for the production of sufficient evidence; and/or

c) the defendant is already serving a sentence in custody.

For these three grounds, the test is simply that the defendant ‘need not’ be granted bail if one of these conditions exist.

Question 31

What are more specialist grounds for denying bail?

Answer 31

In addition to the ‘big three’ and the other trio of objections, there are a number of other grounds, but these are all relatively uncommon or rather more specialist.

We have grouped a series of them together under two broad headings, namely:

a) serious cases with high penalties; and

b) cases of a particular nature that affect the assessment of the risk posed by a defendant on bail.

Under the latter heading, the most notable ground of objection to bail relates to defendants who might commit offences and cause physical or mental injury (or fear of it) to an ‘associated person’. This is an important ground used frequently in domestic violence cases.

Question 32

What are the four groups of offences that are considered when considering the grounds for denying bail?

Answer 32

The law has been added to and amended so often now that reading the list of the grounds and when they apply is a fraught experience.

Four diagrams/tables seek to assist your understanding as to when grounds are available. We have tried to group the offences helpfully. In short, there is special provision for:

a) serious cases (such as murder and rape) where it is harder to get bail because of the gravity of the consequences of such offending;

b) cases of a particular character (such as drugs and domestic violence) where a different approach needs to be taken because of the particular behavioural difficulties commonly encountered with defendants who commit these offences;

c) cases where the defendant infringes bail;

d) the remaining cases - dealt with in relation to their classification and, even with the ‘standard’ cases, there are a number of provisos to watch out for.

Question 33

What is the process for bail objections?

Answer 33

• Check whether your defendant falls into the provisions of one of the special categories (either serious crime, or crimes of particular character).
• If the provisions in relation to serious cases (eg murder) are satisfied, the courts must follow the more stringent test and the more general objections cease to apply.
• For cases of a particular character, the prosecution can either use these additional grounds or rely on the more general grounds.

Question 34

Can bail be granted for serious crimes?

Answer 34

Is D charged with: (a) murder; (b) attempted murder, rape, attempted rape, serious sexual offence or manslaughter; or (c) an offence carrying life imprisonment as its maximum sentence?

a) Murder (Note: only a Crown Court Judge can grant bail)

· If D has a pre-con for: (i) murder; (ii) attempted murder; (iii) rape; or (iv) a serious sexual offence, D may not be granted bail unless there are exceptional circumstances to justify it*

· If D does not fall into the above, D may not be granted bail unless there is no significant risk of D causing an offence likely to cause physical or mental injury

b) Attempted murder, rape, serious sexual offence etc

· If D has a pre-con for: (i) murder; (ii) attempted murder; (iii) rape; or (iv) a serious sexual offence, D may not be granted bail unless there are exceptional circumstances to justify it*

c) An offence carrying life imprisonment

· If D was either: (i) already on bail; and/ or (ii) fails to attend having been on bail, D may not be granted bail unless there is no significant risk of further offences being committed or failure to attend

Pre-con = previous conviction

• The present charge and pre-con do not need to be the same offence. If D does not have a qualifying pre-con, bail is assessed on the usual grounds.

Question 35

Where might particular characteristics affect risk regarding bail?

Answer 35

Is D charged with: (a) an offence that suggests D would cause injury (mental or physical) to a partner or family member; or (b) abuse of drugs?

(a) An offence against partner or family- D need not be granted bail for any imprisonable offence if the court believes there are: substantial grounds to believe that D would commit an offence on bail by engaging in conduct that would, or would be likely to cause physical or mental injury to an associated person. An associated person is a spouse, partner or a family member. This ground is available for non-imprisonable offences only if D is arrested under s.7 Bail Act for a breach of bail.

(b) Abuse of drugs- Where:

(i) the test shows D has a Class A drug in D’s body; and

(ii) the offence relates to a Class A or was caused/ motivated by D taking Class A drugs

Court may not grant bail unless there is no significant risk of D committing an offence on bail.

Question 36

Will a defendant be automatically denied bail for absconding?

Answer 36

If the defendant was on bail at the time of the alleged offence:

· If D is said to have committed an indictable offence, then the court ‘need not’ grant bail; or

· If D is said to have committed a summary imprisonable offence, then the court ‘need not’ grant bail if there are substantial grounds for believing that D will commit further offences.

If D absconds whilst on bail for an indictable offence, then bail need not be granted again, unless it is prior to conviction and there are no realistic prospects of the defendant receiving a custodial sentence.

Question 37

What factors should be taken into account when considering the grounds for objecting to bail?

Answer 37

a) the nature and seriousness of the offence and the likely disposal (ie sentence)- if convicted of a serious offence, D is likely to receive a long sentence and will therefore be tempted to abscond

b) the character of the defendant, D’s antecedents, associations and community ties;

• Antecedents refers to previous convictions which can make a custodial sentence more likely.
• Character might include any personal circumstances such as drug addictions.
• Associations might include friends with criminal records.
• Examining the ‘community ties’ helps to see how easy it could be for the defendant to abscond and how much D has to lose by absconding. If D is married with children or in a job then D might be less likely to ‘disappear’ compared to someone of ‘no fixed abode’.

c) the defendant’s bail record in the past- whether D has absconded in the past can be seen as indicative that D may do so again. Here, the court will also look at whether D has a tendency to commit offences on bail.

d) the strength of the evidence- a D who knows there is a good chance of being acquitted is arguably less likely to abscond than one who anticipates almost certain conviction.

It is unclear the extent to which the court would expect to hear reference to these factors in any of the other grounds.

These factors give the court a wide discretion.

• In order for bail to be refused the court must find that there is an exception to the right to bail under s. 4. The grounds for objection differ depending on whether the offence is indictable, summary imprisonable or summary non-imprisonable. When considering the grounds for objecting to bail, there are factors to be taken into consideration.

Question 38

What are common bail conditions?

Answer 38

• Residence at a given address- a condition that the defendant must live and sleep at a specified address. This helps solicitors and the court communicate with the defendant by post, and the police to know where to find the defendant if the defendant doesn’t attend court. This will be imposed to reduce the risk of the defendant absconding.
• Curfew- curfews are designed to prevent further offences being committed while on bail. A curfew requires the defendant to remain indoors during certain hours. These are often imposed for offences which occur at night i.e. burglary. A curfew is only appropriate where the time of day/night is relevant to the pattern of offending.
• Reporting to a local police station at given times- to check the defendant is still ‘in town’. This condition would be imposed to reduce the risk of the defendant absconding.
• Surety- the offer of money made by someone with influence over the defendant to secure the defendant’s return to court. A surety is usually required where there is a risk of the defendant absconding. The surety will agree to forfeit a sum of money if the defendant absconds. The defendant cannot stand as a surety in their own case. Sureties do not deposit the sum of money, referred to as a recognisance, at the time bail is granted. They merely promise to pay that sum of money if the defendant fails to surrender to the court and the court then orders all or part of the recognisance to be forfeited.
• Security- the defendant, or someone on the defendant’s behalf, putting up money or some other valuable item to be forfeited if the defendant does not answer bail and attend court. The taking of a security is another means of trying to reduce the risk of the defendant absconding. Note the difference between a surety, which can only be given by a third party and a security which can be given by either a third party or the defendant. Securities are deposited with the court or the police before the defendant is released on bail.
• Restriction on where a defendant may go during bail- prohibiting the defendant from going into a certain area or to a specific place. This condition could be imposed to reduce either: the risk of the defendant committing any further offences while on bail and/or (depending on the circumstances) interfering with witnesses.
• Restriction on who the defendant might have contact with during bail- The court can direct that the defendant does not approach or contact, either directly or indirectly, named individuals (these can be victims or prosecution witnesses), in order to reduce the risk of interference with witnesses and/or obstructing the course of justice, or co-defendants to prevent further offending.
• Electronic monitoring (tagging)- A curfew can be subject to electronic monitoring (tagging). In addition to preventing further offences being committed on bail, electronic monitoring requirements can also be imposed to address fears of failure to surrender and interference with witnesses.
• Bail hostels- Residence at a bail hostel and a further condition that the defendant complies with the rules of the bail hostel can be used to try to prevent the defendant absconding, and/or interfering with witnesses and/or committing further offences on bail. A bail hostel may be used if the defendant does not have a fixed address. It provides a residence and a curfew while the defendant is on bail. The bail hostel will also place upon the resident its own rules with which the defendant must comply e.g. not to bring alcohol or controlled drugs onto the premises. If the rules are breached, the resident would have to leave and would consequently be in breach of the court imposed bail condition of residence.
• Surrender of passport- In some circumstances it may be necessary for the court to impose a condition that the defendant surrenders their passport to prevent the risk of them absconding.

Question 39

Can bail conditons be varied?

Answer 39

Applications to vary bail conditions

Can be made by the defence or the prosecution on advance notice to the other party.

The application should be made to the court which granted bail (or the Crown Court if the accused has been sent for trial or committed for sentence).

If the parties agree on the variation, the court may decide to vary a bail condition without a hearing.

Question 40

What happens if bail conditions are breached?

Answer 40

Breach of bail conditions may result in the accused being arrested under the Bail Act 1976, s 7(3) and D is at risk of either having the bail conditions tightened or being remanded in custody, ie bail being withdrawn.

It is routine for courts to impose conditions on bail.

If a defendant is found in breach of a condition, the defendant is not actually committing an offence. There is no offence of ‘breaching a bail condition’.

The Bail Act s.7 provides that there is a power of arrest allowing officers to arrest those either who are in breach, or who are about to be so.

If D is given bail with a condition to be indoors at home in London by 8pm, and D is found in a field in Glastonbury at 7:30pm, the officer does not have to wait until 8pm to arrest D for breaching bail.

Given that the breach of bail is not an offence, the defendant who is arrested for a breach of bail must then be brought forthwith to a magistrates’ court, and then the question to determine is simply whether the defendant should have bail going forward.

Question 41

What happens if a defendant does not surrender to custody?

Answer 41

There are a number of instances whereby the breach of bail will introduce more grounds of objection which might not have been previously available.

Even if the breach does not trigger any new grounds, the assessment of whether the defendant gets bail will be likely to alter against the defendant’s interests if there’s been a breach of a condition. D faces a real possibility of being remanded in custody until the case is concluded.

The only bail breach which is a criminal offence is failing, without reasonable cause, to surrender to custody. This offence is commonly known as failing to surrender (‘FTS’). This is an offence punishable summarily by up to three months’ imprisonment and/ or an unlimited fine or 12 months and/ or an unlimited fine on indictment.

Question 42

What is the procedure for applying for bail?

Answer 42

If the defendant has been refused bail by the police, D will appear before the next available magistrates’ court in custody.

On D’s arrival at the court the defence advocate will first check with the prosecutor to see if the prosecutor intends to object to bail being granted. If the prosecutor has no objections then this will be stated to the court.

If however the prosecution objects to the grant of bail, the prosecutor will outline the objections to the court. Where the accused has previous convictions, these are handed to the court.

The defence then presents its arguments for bail to be granted.

After hearing both the prosecution and the defence submissions, the court will announce its decision. Where the defendant has a right to bail under s. 4 Bail Act 1976 the court must give its reasons if it refuses bail or imposes conditions. A form setting out the decision of the court will also be completed.

Question 43

How do bail hearings differ based on the court?

Answer 43

The general rule is that a defendant who is having a trial in the magistrates’ court can have two attempts at getting bail at the magistrates’ court, and one attempt on appeal to the Crown Court.

Magistrates’ Court

There are some complications around this general principle. If bail is refused, then D can repeat the same application and have a second attempt at getting bail at the next hearing. Thereafter, D has either to appeal the decision against granting bail to the Crown Court, or to find fresh points to make (eg by finding a surety which D didn’t have available before).

Crown Court

A defendant whose trial will be heard in the Crown Court has one attempt at bail at the first hearing in the magistrates’ court (unless charged with murder; the magistrates’ court has no jurisdiction to consider bail where a person is charged with murder) and a further application as of right in the Crown Court.

Question 44

What is the bail timeline usually?

Answer 44

• The defendant attends court the first time the case is listed, and applies for bail.
• If the defendant is unsuccessful, the case will be returned to court a week later where the issue of bail can be raised a second time without any restriction or qualification, and the defendant can apply again. In principle it is possible for the defence advocate to make identical applications at the first and second hearings and to find that the same application is denied first but then allowed by a different bench of magistrates (or District Judge).

· Once the defendant has had both applications, the defendant must secure a ‘certificate of full argument’ from the magistrates’ court before then appealing to the Crown Court (if D wishes to do so). The certificate is simply a short summary that the magistrates produce so that the Crown Court knows what has transpired in the court below. Appeals are heard one business day after an appeal notice is served.

• D can only apply again if there has been a change in circumstances.

Question 45

What is the bail timeline for urgent cases?

Answer 45

In urgent cases, the defence may wish to exercise its appeal right more quickly than would be allowed by waiting a week for a second attempt in the magistrates’ court.

The Crown Court will hear a bail appeal no later than one business day after the appropriate notice is served, but clearly this is still a quicker route to being heard than waiting for a week to pass and applying again in the magistrates’ court.

If a defendant appeals to the Crown Court after only one application in the magistrates’ court, then the defendant loses the right to a second application in the magistrates’ court.

D can only apply again if there has been a change in circumstances.

Appeal notices must be served as soon as practicable.

Question 46

Can the prosecution appeal against the granting of bail?

Answer 46

The magistrates’ court grants bail

It is very rare for the prosecution to appeal against the granting of bail. It is possible, and the very basic process, is that the:

a) prosecution must have opposed bail originally

b) offence must be punishable by imprisonment

c) prosecution indicates orally at the hearing when bail is granted that they will appeal (the defendant is then held in custody)

d) intention to appeal is confirmed in writing and served on the court and defence within two hours

e) appeal is heard within 48 hours – excluding weekends

f) appeal is heard by a Crown Court Judge

Where the Crown Court grants bail

Equally rare is the prosecution appealing the grant of bail by the Crown Court.

The procedure is the same as for a magistrates’ court appeal save that the appeal is heard by a High Court Judge sitting in the High Court.

Question 47

What are the custody time limits?

Answer 47

There are rules that seek to prevent unduly long periods of time being spent on remand in custody awaiting trial.

The incentive for the prosecution to bring cases to trial within a proper time frame is that the prosecution cannot hold a defendant beyond the ‘custody time limits’ unless the court has sanctioned an extension.

The limits themselves depend upon the classification of the offence.

The numbers to remember are:

• 56 days for trials in the magistrates’ court of summary only or either-way offences; and
• 182 days for trials in the Crown Court of indictable only or either-way offences, less any days spent in custody prior to the case being sent to the Crown Court (usually zero).

Custody time limit expiry

A trial must commence before the expiry of the custody time limit.

• In the magistrates’ court the start of the trial is defined as when the court begins hearing evidence from the prosecution.
• In the Crown Court the start of the trial is defined as when a jury is sworn.

If the limits expire, then the defendant will be released, unless the prosecution applies to extend the time limits and can show that it has acted with ‘all due diligence and expedition’ and that there is ‘good and sufficient cause’ to have the defendant further remanded into custody.

Question 48

What are the time limits for first and onward remand in the magistrates’ court

Answer 48

Sent to the Crown Court

Where a defendant is charged with an offence that is sent to the Crown Court (ie indictable only or an either-way where the magistrates decline jurisdiction or the defendant elects crown court trial), the custody time limit is 182 days and they will not make a further appearance in the magistrates’ court.

Trial in the magistrates’ court

There are, however, particular rules about how long a person can be remanded into custody for where they are going to be tried in the magistrates’ court.

If a defendant is remanded into custody at their first hearing and their trial will take place in the magistrates’ court, their first remand must be for no more than eight clear days.

What does that mean?

They must be brought back to court within eight clear days so that another bail application could be made, though the defendant may choose not to make one.

Does this mean that the courts are clogged up with people making a ‘second appearance’ which may be pointless?

Yes, to an extent. To get around this, a second appearance can be via video link and most courts now operate this as the default position. The defendant is considered to be ‘present in the courtroom’ despite appearing on a screen.

After the ‘second appearance’ the defendant must be brought back to court every 28 days or fewer just so that the court can ‘remand them onwards’ to their trial. This truly is a waste of time and resources! A defendant can therefore, at any point, consent to these ‘onward remands’ being conducted in their absence. No video link; the magistrates simply have to remember to say on an appointed day ‘I remand Bob Smith for a further 28 days in the absence’.