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

Question 1

As defendants have a general right to bail, what two things are required to remand a defendant in custody at a court hearing?

Answer 1

1. Exception to the right to bail must apply, and
2. Real prospect of custodial sentence being imposed

Question 2

What are six of the exceptions to the right to bail?

Answer 2

1. Substantial grounds for believing D will fail to surrender, commit further offences, or interfere with witnesses
2. D charged with offence triable in Crown Court and was on bail at the time of charge
3. Custody for their own protection
4. Already serving a sentence
5. Insufficient information to make a decision on bail
6. D has failed to surrender in the same proceedings previously

Question 3

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

Answer 3

Crown Court Judge

Question 4

What must be shown in order for a defendant charged with murder to secure bail?

Answer 4

No significant risk that they defendant would commit an offence likely to cause physical or mental injury to another person

Question 5

How often must a court consider bail?

Answer 5

At each hearing

Question 6

However, only how many times many a defendant make a further application on the same facts and submissions?

Answer 6

One additional time

Question 7

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

Answer 7

Change of circumstance, relating to the case generally or defendant

Question 8

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

Answer 8

They can be arrested without a warrant

Question 9

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 9

1. Summary: D pleads guilty or not guilty
2. Either way: Court proceeds to plea before venue process (to determine where def should be sentenced)
3. Indictable: Matter is sent immediately to the Crown Court for trial

Question 10

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

Answer 10

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

Question 11

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

Answer 11

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

Question 12

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

Answer 12

1. Means test
2. Interests of justice test

Question 13

What are the different bands for satisfying the means test for legal aid?

Answer 13

Disposable income below £3,398 - full legal aid

Disposable income between £3398- £37500 - partial legal aid

Disposable income above £37,500- no legal aid

Question 14

What is plea before venue?

Answer 14

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

Process which decides if the defendant should be tried in the Crown Court or the Magistrates Court

Question 15

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

Answer 15

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

Question 16

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

Answer 16

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 17

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 17

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 18

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

Answer 18

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)/max sentence he would be likely to face.

This indication is binding on the judge who made it (unless def maintains not guilty plea)

A Goodyear indication.

Question 19

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

Answer 19

Yes

Question 20

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

Answer 20

No

Question 21

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

Answer 21

1. Prosecution must serve its evidence within 28 days of the hearing
2. Defence must serve a defence statement (if they are serving one) within 14 days of the hearing and notify prosecution which witness are to be attending within 7 days of the hearing

Question 22

One of what five things will trigger the requirement for a preliminary hearing to be held within 14 days of an indictable only matter being sent to the Crown Court?

Answer 22

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 23

Within what time of the case being sent from Magistrates does plea and trial preparation hearing take place in the Crown Court?

Answer 23

28 days

Question 24

In the Crown Court, within what time limit must prosecution complete disclosure, and what is this extended to if defendant is on bail?

Answer 24

50 days. 70 days if D on bail.

Question 25

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

Answer 25

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

Question 26

After the prosecution has made disclosure (providing def with all rel docs capable of undermining pros case and assisting defence), how long does the defence have to serve a defence case statement on the prosecution and the court?

Crown Court

Answer 26

28 days

Question 27

What is a case management direction?

Answer 27

A series of steps set out in the form of a court order which sets the timetable for what needs to be done

Question 28

In summary, how many applications for bail can be made?

Answer 28

Bail should be considered at each hearing

However, only two applications for bail can be made on the same facts and circumstances (original plus one more)

After that, to make another application for bail, there must have been a change in circumstance to def or case.

Question 29

Can an adverse inference be drawn from a failure to comment on charge?

Answer 29

Yes

Question 30

For someone who has been arrested for murder, do they have a general right to bail?

Answer 30

No- for murder, the presumption is reversed and is against granting release on bail