2.1 Bail & Custody Flashcards
s7 Bail Act 2000 - When is a defendant bailable as of right? (2)
- When charged with offence not punishable by imprisonment
- Charged with offence <3yrs unless:
- assault on child
- male assaults female
- assault someone in family relationship
s7(4) When is a defendant not bailable as of right?
Not bailable of right if charged with offence punishable by imprisonment after previously convicted of offence punishable by imprisonment
s8(1) BA2000 - When considering if there is just cause for continued detention, what 4 ‘risks’ MUST the court take into account?
Whether defendant may:
- fail to appear
- interfere with witnesses/evidence
- offend while on bail
- other matter making it ‘unjust’ to detain
s8 BA2000 - In considering if there is ‘just cause’ for continued detention under subsection (1), the court MAY take into account the following 8 things in s8(2):
- nature of offences
- strength of evidence & probability of a conviction
- seriousness and severity of the punishment
- character and past conduct
- history of offending whilst on bail
- likely length of time before matter comes to court
- possible prejudice to the defence in preparation of the defence
- other special matters
s8(3A) BA2000 - FV offences, what is the courts primary considerations when considering bail?
Need to protect
1. the victim
2. any person in a family relationship with the victim
s8(3C) BA2000 - Breach PO, What is the courts primary considerations when considering bail?
The paramount decision is to protect every protected person on the PO
s8(4A & 4B) BA2000 - what can and can’t the court take into consideration regarding a defendants cooperation/assistance with authorities of any offence
Can’t take their cooperation into account when considering bail however their cooperation may be relevant to assessment of whether there is a risk that defendant will fail to appear at court etc.
s10 - Restriction on bail if defendant with previous conviction for specified offences charged with further specified offences applies to a defendant of what age?
Of or over the age of 17 years
s10 - give 4 examples of a SPECIFIED OFFENCES
Any four of:
- s128B sexual violation
- s132 sexual conduct with child <12
- s167 murder
- s171 manslaughter
- s188 wounding with intent
- s234 agg robbery
- s232 agg burglary
- s173 att murder
- s191agg wounding/injury
- s198A uses FA against law enforcement
- s198B uses FA in committing crime
- s208 & 209 abduction & kidnapping
- s236 assault w intent to rob
s10 defendant charged with specified offences - no defendant may be granted bail or allowed to go at large except by order of who?
High court judge or a district court judge
A. What is the REVERSE BURDEN OF PROOF as it relates to s10(4), (5), (6)?
B. s10(5) What is the standard of proof for the defendant and what must he satisfy the court
C. s10(6) What primary considerations must court take into account in deciding to grant bail for s10 offending.
A. Defendant can be subject to reverse burden of proof in bail decision where the defendant has to prove that he or she should be released on bail rather than the prosecutor proving that the defendant should not be released on bail
B. (5) satisfies on balance of probabilities. Won’t while on bail commit violence offence or danger safety of anyone.
C. (6) Need to protect safety of public and victims
s12(1)(a) Restriction on bail.
Defendant 18+ charged with offence over 3yrs prison and at time on bail for another 3yr+ offence and…
at any time has previously received a sentence of imprisonment. Only granted bail by DC/HC judge
s12(1)(b) Restriction on bail.
Defendant 18+ charged with offence over 3yrs prison and previously received 14+ sentences of prison…
previously convicted of offence committed while on bail for 3yr+ offence.
Only granted bail by DC/HC judge
s12(5) Further restriction on bail in certain cases, the defendant must satisfy the judge on the balance of probabilities that he will not while on bail or at large commit what? (2)
- violence against or danger to the safety of anyone OR
- burglary or any other serious property offence. (more than 7yrs serious property offences)
s15 Granting bail to defendants under 18yrs
What must the courts think when granting of bail to defendant who is 17 and 18yrs of age? (2)
- appears to be 17 or 18 yrs of age AND
- not previously been sentenced to imprisonment.
Must be bailed (unless exceptions exist ie specified offences)
s16 - bail is only granted for drug dealing offences by order of who?
HC or DC judge
s21 when may Police grant Police bail
When considers PRUDENT to do so subject exclusions s10, 12, 16
s21 What considerations must police make considering police bail for those charged with:
- FV offences
- Breach of PO
- To protect victim and person in family relationship with victim
- need to protect protected persons on the order
s21(4) who is entitled to be granted Police bail as of right
No one
s21A - Notice of Police Bail
A police employee who grants police bail must ensure that notice of police bail is completed and what? (3)
- GIVE notice to defendant
- ensure defendant UNDERSTANDS conditions of bail and
- ensure defendant AUTHENTICATES the notice.
s21A Police bail.
When must attendance at court be no later than
14 days from date on notice
s21B if Police impose bail conditions when must court attendance be
- less than 7 days of date on notice
- unless court is closed for more than 7 consecutive days after the date of arrest
s22 what conditions can police place on bail in FV offences
any conditions necessary to protect victim or person in family relationship with victim
effectively putting conditions of PSO in place
s23 - can a person arrested for breach PO get police bail?
No, not by police under s21 during the 24hrs following the arrest. Although the obligation to get charged person to court still exists
s35 - a defendant on bail may be arrested without warrant in certain circumstances when? (2)
- defendant has absconded or is about to to evade justice OR
- defendant has contravened or failed to comply with any bail conditions.
Note: s35(4) if defendant is K9 for above, he cannot be bailed as of right
s37 - who can issue a WTA absconding or BoB or fails to answer bail?
A judicial officer or registrar
s37(5) What must constable executing arrest warrant have/do (3)
- have copy of warrant
- produce ID on initial entry and if requested
- if not in uniform produce evidence is a constable
What was detailed in R v Bryant (Prudent to consider bail)
Charged with indecent acts. Statements obtained from him while in custody. Went to court next day. Was bailable as of right and admissibility of statements challenged. s21 says police bail when prudent to do so. Requires constable to determine whether he can be released safely until defendant becomes the responsibility of the court
s32 Policing Act - identifying particulars of person in custody.
A constable may take their particulars if person in lawful custody is detained for committing an offence. Where can this happen? (2 places)
What if person fails to comply?
At a police station or at any other place being used for police purposes. Place includes any land, building, premises or veh.
Commits offence if fails to comply, reasonable force to secure identifying particulars
s33 - identifying particulars for summons
A constable who has good cause to suspect a person of committing an offence and intends to brings proceedings against them by way of summons may detain that person at any place in order to what? (2)
- take their identifying particular
- and only for the period necessary to take the person identifying particulars.
Commits offence if fails to comply, reasonable force to secure identifying particulars
s32(5) Policing Act.
What are identifying particulars? (3)
Persons:
- biographical details - name, address, DOB.
- photograph of visual image
- fingerprints, palm prints and foot print
Note: place includes any land, building, premises or veh
s36 - a constable who finds a person intoxicated in a public place or while trespassing may detain and take a person into custody if they reasonably believe that the person is what?
- incapable of protecting himself from physical harm
- likely to cause physical harm to himself/others
- likely to cause property damage
s36 intoxicated people.
If reasonably practicable, where can he be taken
place of residence, temporary shelter.
Note if not reasonably practicable to provide for care here, then ok to place in custody
s36 a person detained under s36(1) intoxicated must be released when?
Soon as person ceases to be intoxicated
Must not be detained longer than 12hrs unless recommended by health practitioner
s36 Define intoxicated
observably affected by drugs, alcohol or substances to degree balance, speech, coordination, behaviour impaired
s36 define temporary shelter
place for care and protection of intoxicated person, not operated by police
When is the prosecutor satisfied that the test for prosecution is met? (2)
The evidential test
AND
The public interest test
Explain what the Evidential test is:
Evidence which can be adduced in court is sufficient to provide a reasonable prospect of conviction
Explain what the public interest test is:
The presumption that public interest requires a prosecution eg. serious nature of the case
Which TEST must be satisfied first?
Evidential test
What are the 6 elements that satisfy the conditions of the evidential test?
- Identifiable individual
- credible evidence (capable of belief)
- Evidence which the prosecution can adduce (available and legally admissible)
- Could reasonably be expected to be satisfied (reasonable prospect of conviction)
- Beyond reasonable doubt (high standard of proof)
- Commission of a criminal offence (evidence against each ingredients)
What are some considerations for prosecution in the public interest test (18)
- Seriousness of offence
- Serious significant violence
- Likely to be continued/repeated
- Relevant prev convictions/warnings
- Committed while on bail
- Offence is prevalent
- Ringleader
- Premeditated
- Carried out by group
- Organised Crime
- Victim in fear, vulnerable
- Serious risk of harm
- Serious financial loss
- Position of authority, trust
- Public servant
- Took advantage of victim developmental age
- Hate crime
- Corruption
What are some instances against prosecution in public interest (13)
- Likely minimal sentence
- Genuine mistake, minimal loss or harm
- Not serious or unlikely to be repeated
- Long passage of time unless: serious offence, delay caused by defendant, offence recently came to light, complex lengthy investigation
- prosecution have detrimental effect on victim/witness
- elderly defendant
- young defendant
- no prev convictions
- defendants significant mental or physically ill health at time of offence or trial
- victim accepts defendant has rectified loss or harm
- Recovery would be effective by civil action
- Info made public would harm sources, national security etc
- Proper alternatives to prosecution exist
What is also a relevant factor in determining the overall assessment of public interest
Cost
Once evidential test is met (or otherwise) and weighed up against public interest prosecutor determines there is no public interest in progressing the matter, a decision of no prosecution is made. Does this preclude further prosecution if other info comes to hand
No, but it is anticipated this to be rare
