2. Bail Applications at Court, First Hearings Before the Magistrates, Plea Before Venue, and Case Management and Pre-Trial Hearings

Question 1

What is the distinction that is drawn between exclusions and exceptions to the right to bail?

Answer 1

1. Exclusions - no right to bail.
2. Exceptions - circumstances where defendant need not be granted bail.

Question 2

Where a defendant is denied bail in the Magistrate’s Court, what next step should they take?

Answer 2

Apply for bail to a Crown Court judge in writing.
* rehearing of their bail application will occur within 48 hours

Question 3

What are the three catch-all exceptions that support the prescribed bail exceptions?

Answer 3

only need to satisfy one of them.

Substantial grounds to believe that D, if granted bail, would:
1) fail to surrender to custody/show up at later hearing.
2) commit further offences while on bail; or
3) interfere with witness or otherwise obstruct the course of justice.

‘would’ is not the same as might or may = higher threshold

Question 4

In what four circumstances is the right to bail excluded?

Answer 4

1) Appeals following summary convictions
2) Committal of sentence following summary conviction
3) Specific violent offence where there is also a previous conviction for one of these.
4) Murder cases specifically

Question 5

In what five circumstances can conditional bail be imposed?

Answer 5

only in these five cases:
preventing
- Absconding
- Reoffending
- Interference with witnesses/obstruction of justice
- Self-protection
- Available - to assit in inquiries or a compiling of sentencing report.

ARISA - mnemonic

Question 6

Only whom can hear a bail application for a murder charge?

Answer 6

Crown Court Judge

Question 7

What must a defendant charged with murder show to secure bail?

Answer 7

No presumption in favour of bail, and may not be granted, unless the court is satisfied there no significant risk that they defendant would commit an offence likely to cause physical or mental injury to another person.

• only C.C judge can grant bail, and make a decision within 48 hours from day defendant appears in Magistrates’ court.

Question 8

What must a defendant charged with specific violent offence show to secure bail, and to what offences does this exclusion relate to?

Bail exclusion

Answer 8

Court must be of the opinion that there are exceptional circumstances justifying the grant of bail.

Exclusion applies if defendant is charged/convicted of either:
- Rape, attempted murder, murder, manslaughter, or attempted rape
and
- has previously been convicted of any of these.

Note - manslaughter, exception only appleis where previous conviction resulted in sentence of imprisonment.

Question 9

What are the exceptions for bail for indictable imprisonable offences?

Both either way and indictable only.

Answer 9

need not scenarios:
1) Substantial grounds as to risk of absconding, further further offences, or intereference with witnesses. (Catch-all)
2) Harm to an associated person
3) Offence committed while on bail
4) Defendant’s own protection
5) Already serving a custodial sentence
6) Arrested for absconding/breaching bail in relation to ongoing proceedings
7) Not practicable

CHODANA

Question 10

When does the bail exclusion on harm to an associated person apply?

bail exclusion

Answer 10

Where there are substantial grounds to believe that defendant, if released on bail, would committ an offence by engaging in conduct that would, or would likely:
1) cause physical or mental injury to an associated person; or
2) cause them to fear it

Note - associated person includes spouse/ex-spouse, parent, cohabitant.

Question 11

When does the bail exclusion relating to offences committed while on bail apply?

Answer 11

only where defendant committed the relevant offence while already out on bail.

Question 12

When does the bail exclusion where the defendant is arrested for absconding?

Answer 12

if defendant is granted bail in the relevant proceedings, but was then arrested for absconding or breaking conditions of bail.

Question 13

When does the bail exclusion where granting bail not praticable apply?

Answer 13

1) Insufficient information to consider question of bail due to shortneess of time since start of proceedings; or
2) Case is adjoured for inquiries or a report, and not practicable to do so while defendant is out on bail.

Question 14

What is the limitation on the right to bail, and what is its effect?

Answer 14

Where all three conditions are met, then the exceptions to bail will not apply:
1) Defendant is 18
2) Not been convicted of an offence in relevant proceedings; and
3) Appears to court that there is no real prospect of a custodial sentence.

Applies only to three exceptions - (i) catch-all exception; (ii) offence committed while on bail; or (iii) arrested for absconding.

Question 15

What are the exceptions against bail for summary-only imprisonable offences?

Answer 15

Next three are different:
need not grant bail if:
1) D was previously given bail in relevant proceedings, failed to surrender, and court believes this will happen again if bail is granted. (limitation applies)

2) On bail on date of relevant offence and substantial grounds to believe they would reoffend if out on bail.

3) Arrested for absconding/breaching bail and substantial grounds to believe any of the three circumstances in the catch-all exception are satisfied. (limitation applies)

Same applicable exceptions as indictable offences:
1) Harm to associated person exception (same as indictable offences)
2) Keep in custody for their own protection
3) Not practicable due to shortness of time.
4) Already serving a custodial sentence

Question 16

What are the five exceptions against bail for summary non-imprisonable offences?

Answer 16

1) Convicted of the offence and either:
* previously granted bail, failed to surrender, and court believes this will happen again; or
* arrested for breaching bail or absconding and substantial grounds to believe that if release any of the 3 catch-all exceptions would be met.

2) Arrested for bail breach/absconding and substantial grounds to believe that D would engage in conduct that would cause physical or mental harm (or fear) to an associated person.

3) Already serving custodial sentence

4) Kept in custody for their own protection.

Question 17

Thereafter, what is required for a defendant to make an additional bail application?

Answer 17

Change of circumstance, relating the the case generally or defendant

Question 18

What is allowed to happen if a defendant breaches their bail conditions?

Answer 18

They can be arrested without a warrant

Question 19

What happens at the first court hearing in the Magistrates where the offence is (1) summary only, (2) either way, or (3) indictable only?

Answer 19

1. Summary: D pleads guilty or not guilty
2. Either way: Court proceeds to plea before venue process
3. Indictable: Matter is sent immediately to the Crown Court for trial

Question 20

For summary only offence, what happens if the defendant’s plea is (1) guilty and (2) not guilty?

Answer 20

Guilty: Court proceeds immediately to sentencing
Not guilty: Court will set a trial date for six to eight weeks later

Question 21

Whose decision alone is the plea, and who must never instruct this?

Answer 21

The defendant’s alone, and the solicitor should never tell D how to plead

Question 22

What is the two part test for a representation order, i.e. to receive legal aid?

Answer 22

1. Means test
2. Interests of justice test

Question 23

Net income (after deductions and adjustments) over what amount will not satisfy the means test for criminal legal aid?

Answer 23

£3,398

Question 24

What is plea before venue?

Answer 24

Procedure where defendant appears at the Magistrates Court charged with an either way offence

Question 25

What are the three advantages of electing for the Magistrates Court?

Answer 25

1. Limited sentencing powers
2. Relative speed and low cost
3. Less stringent disclosure requirements

Question 26

What are the three advantages of electing for the Crown Court?

Answer 26

1. Higher rates of acquittal
2. More effective process for challenging admissibility of evidence
3. Longer delay before trial, making gathering evidence more practical

Question 27

If the defendant at a plea before venue pleads not guilty or gives no indication, what must the Magistrates decide, and what two factors will they consider in doing so?

Answer 27

Whether the offence can be dealt with in the Magistrates Court, or if the Crown Court is more appropriate, considering:

1. D’s previous convictions
2. Whether the court’s sentencing powers are adequate to deal with the conduct alleged

Question 28

When deciding their plea, the defendant can request an indication as to what, and what is this known as?

Answer 28

Whether the sentence would be custodial or non-custodial if they were to plead guilty (but the court is under no obligation to provide this indication).

Goodyear indication.

Question 29

If an indication is given, and the defendant then pleads guilty, is the court bound to follow what they said?

Answer 29

Yes

Question 30

If an indication is given, and the defendant maintains their not-guilty plea, is the court bound to follow what they said?

Answer 30

No

Question 31

What two standard case management directions are given in Magistrates Court?

Answer 31

1. Prosecution’s initial duty of disclosure serve its evidence within 28 days
2. Defence must serve a defence statement (if they are serving one) within 14 days, and notify prosecution within 7 days of its defence Ws.

Question 32

In the Magistrates Court, what are the standard trial preparation limits?

Answer 32

• Notice to call defence witnesses - within 10 days from IDPC
• Defence statement - within 10 days from IDPC

Question 33

Within what timeframe must a notice to introduce hearsay evidence be submitted, and how does this differ between the defence and prosecution?

Answer 33

For the prosecution
in the C.C - within 10 business days after non-guilty plea
in the M.C - within 20 business days after non-guilty plea

For the defence
As soon as reasonably practicable.

• objections = within next 10 business days from service

Question 34

Within what timeframe must a notice to introduce bad character evidence concerning the defendant be submitted?

Answer 34

For the prosecution
in the C.C - within 10 business days after non-guilty plea
in the M.C - within 20 business days after non-guilty plea

For a Co-defendant
ASAP or in any event max 10 business days after P has disclosed material relating to the notice

– objections = within next 10 business days from service

Question 35

Within what timeframe must a notice to introduce bad character evidence concerning a non-party be submitted?

Answer 35

As soon as practicable and no later than 10 business days from when the prosecution first disclosed the material concerned.

Question 36

How long does a party have to oppose an application to introduce hearsay?

Answer 36

10 business days after whichever of these occurred last:
(i) service of notice;
(ii) service of evidence (if notice not required);
(iii) D pleads not guilty

Question 37

In what circumstances, must a preliminary hearing be held in the Crown Court?

Answer 37

1. Trial likely to last more than 4 weeks
2. Case management problems to address
3. Early trial date is needed
4. Defendant is a minor
5. Likely to be an early guilty plea

Question 38

Within what timeframe of the case being sent from Magistrates will a PTPH take place in Crown Court?

Answer 38

28 days from sending

Question 39

Within what timeframe is the defence required to serve its defence statement in the Crown Court?

Answer 39

within 28 days of prosecution’s IDPC

Question 40

In the Crown Court, within what timeframe must the prosecution serve its evidence on the defence?

Answer 40

50 days. 70 days if D on bail.

Question 41

What is the prosecution also under an ongoing duty to disclose?

Answer 41

Any unused material which might reasonably be considered capable of undermining the case for the prosecution or assisting the defence

Question 42

After the prosecution has made disclosure, how long does the defence have to serve their defence statement?

Answer 42

within 28 days

Question 43

What statutory factors must be taken into account when deciding whether there are substantial grounds for denying bail?

Answer 43

Factor that must be considered when determining risk posed by defendant regarding the bail exceptions:

• nature and seriousness of the offence
• Character, community ties, associations, and prior convictions.
• strength of the evidence against defendant (not relevant where convicted);
• Past bail record
• Any other factors (ie. misuse of drugs)

Mnemonic - PECAN

Question 44

When must a court grant unconditional bail to a defendant?

Answer 44

whenever, in light of the statutory factors, the court is of the view that defendant does not pose a real risk in respect of any of the exceptions.

• Otherwise, it will be up to the defence to reassure court through use of bail conditions.

Question 45

How many attempts at bail does a defendant have, and what is the timeline for each hearing?

Answer 45

if tried in Magistrates Court
- 2 attempts in mags - heard one week apart, AND
- 1 appeal to C.C - heard next business day after appeal is filed.

if tried in Crown Court
- 1 attempt in mags (unless murder offence), AND
- Further application in C.C

Question 46

What bail conditions can the court impose on D?

Answer 46

no closed list, but must be relevant, proportionate, and enforceable.
- appropriate conditions = vary depending on the particular defendant/offence.
- include - curfew, residence @ given address, surety, ankle monitor, bail hostel, drug test.

Question 47

When does a police officer have power to arrest a defendant without a warrant for breaching bail conditions?

Answer 47

If they have reasonable grounds to believe defendant has either:
- 1) broken any of his bail conditions, or
- 2) Likely to do so.

Once arrested, must be brought before Mags ASAP and in any event *within 24 hours of their arrest. If not, they must be released.

Question 48

Is breaching a bail condition a criminal offence?

Answer 48

no, instead, D will simply have to face the judge again who will consider whether bail should be revoked or its conditions amended.

• cf. absconding = criminal offence

Question 49

Magistrates’ Court

If a defendant is remanded into custody, how often must they reappear in court?

Answer 49

first time - 8 clear days from being remanded.

afterwards - 28 days if next stage of proceedings is set.

• note - this is standard protocol. D is called back to court even if ≠ make another bail application.

Question 50

For how long can D be kept in pre-trial detention (custody time limit)?

Answer 50

Magistrates court - 56 days

Crown Court - 182 days (less any days spent prior to case being sent)

Question 51

What are the two exceptions allowing sending of an either-way offence to C.C without allocation hearing following
notice from prosecution?

Answer 51

Where prosecution gives notice to court that case involves:

(1) serious or complex fraud
- satisfy minimum two of these conditions:
(i) amount alleged exceeds £500,000
(ii) significant international dimension
(iii) requires specialised knowledge
(iv) fraud on public body
(v) widespread public concern (ie. endangered well-being of UK financial markets)
(vi) numerous victims.

OR

(2) involves children (related to a violent/serious offence).
- ie. child is a witness, and to avoid prejudicing their welfare, should be taken over by C.C w/out delay.

Question 52

What are the main three instances allow sending to C.C without an allocation hearing?

Answer 52

1) Notice cases
2) Related offences
3) Related offenders

Question 53

When will a related either-way/summary offence be send sent to C.C without allocation?

Answer 53

where charge is jointly heard w/indictable-only offence = must send to C.C directly.

where charge is heard in separate hearings - may send subsequent either-way/summary to C.C directly.

Note
- offence must be related meaning it arises out of the same circumstances.

(Similar to youth court procedure.)

Question 54

When will a jointly charged defendant (D1) be sent to C.C w/out allocation for an either-way offence?

Answer 54

Where D1 appears together with D2, who is charged with an indictable-only offence = must send

Where D1 appears in subsequent/separate hearing = may send

(Similar to youth court procedure)

Question 55

When and who is required to complete a PTPH form?

Answer 55

Must be completed prior to case management hearing in both Mags and C.C by both prosecution and defence.

Question 56

What main function does the PTPH form serve?

Answer 56

Provides the court w/ necessary information to give directions/make adjustments/timetable trial.

• Gathers all necessary information from the parties (ie. witnesses to call, challenges to evidence).
• Monitors the extent of P’s pre-PTPH disclosure.
• Informs court on whether further hearings are necessary.

Question 57

If a defendant is denied bail in the magistrates’ court on both attempts, what options does he have?

Answer 57

1) If D can raise new legal or factual arguments, then can apply for subsequent hearing in Mags.

2) Appeal to C.C - rehearing will take place within 48 hrs of initial refusal of bail.

Question 58

If a defendant wishes to appeal against a decision on bail to the C.C, how much notice must they give to the CPS?

Answer 58

24 hrs notice of their intention to appeal

Question 59

When can the prosecution appeal against a defendant’s granting of bail?

Answer 59

Only where the defendant is charged/convicted with an imprisonable offence.
- power is not invoked lightly, and reserved for cases of grave concern.

Question 60

What is the procedure for prosecution appeals against bail?

Answer 60

1) Give oral notice at end of hearing where defendant is granted bail, and released on bail.

2) Serve written notice of appeal not more than two hours after oral notice.
- High Court - if appealing Crown court’s decision to grant bail (not applicable to cases considered on appeal from mags).
- Crown Court- against mags decision.

3) Defendant must be remanded into custody until the appeal is determined

4) For Crown Court appeals, must be held ASAP, and in any event, no later than 2nd business day after appeal notice.

Question 61

In what two circumstances will a defendant be liable for absconding?

Answer 61

Either where:
1) Failed to surrender without reasonable cause (from the outset); or
2) Initially had reasonable cause, but afterwards failed to surrender as soon as was reasonably practicable.
- ie. defendant is ill and discharged from hospital on Wednsday, but then waits 3 days to surrender….

Question 62

What are the court’s sentencing powers where a defendant is guilty of absconding?

Answer 62

Crown Court - unlimited fine /up to 12-months imprisonment;
Magistrates’ Court - up to 3-months imprisonment/maximum fine of £5,000.

May be sentenced either immediately, or at end of proceedings.

Question 63

When will a defendant’s first hearing be scheduled for?

Answer 63

1. If D is on-bail

Magistrates Court
14 days from charge - prosecutor anticipates guilty plea + likely to be sentenced.

Crown Court
28 days of sending- not guilty plea is anticipated or case is likely to go to the C.C for either trial or sentencing.

2. If D is in custody

Must be brought before the next available court.

Question 64

Is the defendant’s presence at the first hearing mandatory?

Answer 64

Yes, but can be present by video link.

• Failure to attend w/out good reason = give court power to issue an arrest warrant.

Question 65

What are the two exceptions to the need for the defendant to be present at their first hearing?

Answer 65

1. Disorderly conduct
2. Good reason/consent

Question 66

What three conditions must met to satisfy the ‘disorderly conduct’ exception?

Relates to excluding defendant from his own hearing

Answer 66

(a) Legally represented;

(b) due to D’s disorderly conduct before the court = not practicable for him to attend;
AND

(c) proceedings should continue in D’s absence.

Question 67

What three conditions must met to satisfy the ‘good reason/consent’ exception?

Answer 67

he accused is legally represented;

(a) D is legally represented;
(b) D’s solicitor indicates that D consent to mode of trial proceedings conducted in his absence;
AND
(c) court is satisfied there is a “good reason” for D’s absence.

Question 68

In the magistrates’ court, within what timeframe must the prosecution comply within its initial disclosure obligation (IDPC)?

Answer 68

Must be filed @ court as soon as practicable, and no later than beginning of day of first hearing.

Cf.
- no automatic obligation to provide D with IDPC, but if requested, must be served as a soon as practicable.
- otherwise, must still be made available bf. start of day of first hearing.

Question 69

What information must the prosecution include in its IDPC to comply with its initial disclosure duty?

Answer 69

Disclosure must be sufficient to allow, the accused & the court, at the first hearing, to take an informed view on plea and (where applicable) venue for trial.

Question 70

If the accused is on bail, and the prosecution anticipates a not guilty plea, what additional standard of initial disclosure is the prosecution subject to?

Answer 70

Initial details must be sufficient to assist the court in identifying real issues & give appropriate directions for effective trial (regardless of whether trial is to be heard in Mags or C.C).

Question 71

To comply with their initial disclosure obligations, what information is the IDPC required to contain?

Answer 71

depend on whether D is in custody or not immediately prior to first hearing.

1 If in police custody:
- Summary of circumstances of the offence.
- D’s criminal record

2. If free
   - Summary of the offence and any account given by D in prior interviews.
   - D’s criminal record (if any)
   - W’s statements and exhibits, which are P considers material to (i) plea; (ii) sentence; or (iii) mode of trial.
   - Victim impact statements (if available)

Question 72

What are the consequences if the prosecution fails to supply initial details of its case by the first hearing?

Answer 72

Ordinarily, failure to supply initial details = not grounds for dismissal of charge or abuse of process application.

BUT - usual remedy
- first hearing is adjourned and/or awards costs to defence for prosecution’s failure to serve.

Question 73

What happens if a defendant fails to surrender to court while on bail?

Answer 73

Since failure to surrender is a criminal offence, if convicted, then conviction forms grounds for bail to be refused.
* but remanding to custody is not automatic.

Question 74

When will a guilty plea not be considered ‘unequivocal’?

Answer 74

Where it is qualified with words that suggest defendant may have a defence.

Question 75

How will plea of “no contest” be treated by court?

Answer 75

not guilty plea

Question 76

What approach is adopted in the magistrates court regarding summary only trials?

Answer 76

Undertakes ‘proportionate’ approach

1. Timetabling
   - any trial estimated to last over one day = scrutinised with the utmost rigour:
2. Live evidence
   - only witnesses ‘who are really needed in relation to genuinely disputed, relevant issues should attend’.

Question 77

When is the prosecution required to prepare an IDPC at first hearing in the Magistrate’s Court?

Answer 77

Summary or either-way offences.

cf. indictable-only - not required as case will be automatically committed to C.C.

Question 78

What information must the Magistrate’s Court consider when deciding on the most suitable trial venue?

Answer 78

1. Defendant’s prior convictions.
2. Whether the outcome (after accounting for personal mitigation/potential reduction for a guilty plea) exceed its sentencing powers.
3. Whether case is of an unusual legal, procedural, or factual complexity.

Question 79

What are the two exceptions where an indication of sentence will not be binding on the Crown Court?

Answer 79

Not binding on C.C where:

(1) dangerous offender provisions are engaged.
- in such case, if criteria for extended sentence for ‘dangerous offenders’ appears satisfied, Mags must commit D to C.C for sentencing.

(2) D is tried in C.C for a related offence AND either-way offence where guilty plea was entered is committed to C.C for sentencing.
- However, C.C is only freed from its binding effect if Mags warned D at the time that it also retained power to commit for sentencing.

Question 80

When is the PTPH hearing listed in the C.C?

Answer 80

within 28 days of sending from Mags.

Question 81

When should a PTPH form be completed, and by when?

Answer 81

Where D intends to plead not guilty.
- Must be completed before PTPH hearing.

Question 82

What types of cases may require a further case management hearing (FCMH)?

Answer 82

Generally wish to avoid these.
- appropriate only in

1) identified complex cases; OR
2) Where a ‘ground rules hearing’ is necessary set ground rules for conduct of questions of a witness or defendant.
- ie. adjustment needed for vulnerable witnesses, restrictions on types of questions asked.

Question 83

What conditions must be met for an applicant be “passported” through the means-test?

Answer 83

Applicant automatically satisfies means test if:
- under 18; or
- In receipt of Universal Credit/welfare benefits.

Question 84

Distinction between means test in Crown Court versus Magistrate’s Court

Answer 84

1. Magistrate’s Court - only account of defendant’s income.
2. Crown Court - consider income, capital, and equity.
   - may possibly be liable to contribute to funding (cf. M.C)

Question 85

What threshold automatically renders a defendant ineligible for Legal Aid under the means test?

Answer 85

Crown Court - £37,500 of disposable income or more.

Magistrates - £22,325 or more.

Question 86

Distinction between an ‘initial’ and ‘full’ means-test

Answer 86

Initial means test

• annual gross income (post-tax)
• weighted against family circumstances (ie. age/# of dependents).

Full means test
- disposable income after deducting living expenses.

• conducted if D’s annual gross income is over £12,475.

Question 87

Will a defendant charged with an indictable-only offence enter a plea before Magistrates Court?

Answer 87

No - but will still give an ‘indication’ of plea.

Question 88

What are the consequences of failing to submit, or submitting an incomplete defence statement?

Answer 88

court can draw adverse inference.

Question 89

On what grounds may the prosecution withhold disclosure, and what relevant procedure must it follow?

Answer 89

Public interest immunity

Must consider whether disclosure creates a real risk of serious prejudice to an important public interest, that P believes outweighs the public interest in disclosing it to the defence.

Procedure depends on how sensitive its content is:
1) Low level - notice must be given to defence + opportunity to make representations in open court.
2) Medium level - notice is served on defence without any details as to the withheld content. Closed court, only prosecution/judge.
3) High level - ‘exceptional’ that this is allowed. No notice is given to the defence.

Question 90

What factors should the prosecution consider when determining what material should be disclosed to the defence (AG’s Guidelines)?

Answer 90

• use in cross-examination
• capacity to support submission to:
  a) exclude evidence
  b) lead to a stay of proceeding
  c) Abuse of process application
  d) Support a case for violation of D’s ECHR rights or by a public authority.

no need to disclose neutral information

Mnemonic - ELSA

Question 91

How should the defence proceed where it believes that the prosecution is withholding possibly beneficial evidence?

Answer 91

make an application for specific disclosure stating what it wants, and why there is reasonable cause to believe P is in possession of the material, and why it should be disclosed.

• Prosecution has 10 business days to respond