2.1 Criminal Litigation - Bail Application Flashcards
What is bail?
If case adjourned (NOT concluded) > MC can either remand D on bail/in custody
Bail > Release from station
- Subject to duty to surrender (appointed time and place)
- Conditional/NOT conditional
When is the right to bail presumed to be available?
Pre-conviction
Post-conviction
- Case adjourned > Court to obtain reports before sentencing
UNLESS
- Murder (EXCEPT where CC judge believes D NOT significantly risk mental/physical injury to another while on bail)
- Manslaughter
- Rape
- Serious sexual offence
- Previous convictions for any above (UNLESS exceptional circumstances exist)
When is the right to bail not allowed for imprisonable indictable offences?
Pt 1, Sch 1, Bail Application Act 1976
D failed to surrender/commit offence on bail/interfere w Ws/obstruct course of justice
D committed offences on bail > Engage in conduct likely/would cause;
- Injury to associate (fear of)
- D on bail at time of offence
- D previously arresed for not surrendering/breaching bail
- D should be in custody (own protection)
- D is serving prisoner
- Insufficient info
- Case adjourned
When is the right to bail not allowed for non-imprisonable indictable offences?
D failed to surrender/commit offence on bail/interfere w Ws/obstruct course of justice
D previously NOT surrender > Court believes D likely to surrender again
Necessary for D’s own protection
D is serving prisoner
When is the right to bail not allowed for summary-only imprisonable offences?
D on bail at time of offence, substantial grounds likely offence again on bail
D likely commit further offence > Injury (fear) to another
Insufficient info
What factor should be considered towards bail applications (Para 9)?
Nature + Seriousness of offence
- More serious > D likely to abscond > Custodial sentence (depends on relevant sentencing guidelines)
D’s character + antecedents
- Previous convictions > Aggravating factor
- Changes in D’s circumstances
D’s ties to community
- Stronger > Less likely to abscond
- Employment/Long-term residence/Secure accommodation/Family
D’s previous bail grants
- Previous convictions (NOT abscond) > Less likely to abscond
Strength of evidence vs D
- Credibility/Admissibility
- Strong + likely conviction => Likely abscond
Are conditions mandatory on bail?
NO
- UNLESS necessary, acceptable and appropriate
What conditions may be imposed on bail application?
Surety
- Prevent D absconding
- To attend court
- Depends on character/financial circumstances/closeness w D
Security
- D deposits money w court
- If NOT surrender > Forfeit
Report to police stn
- Depends on D’s reporting logistics
Residence
- Permanent address
- NO permanent address > Must make enquiries
Curfew
- Offence at night
Passport surrender
NOT contract W (known to D)
Geographical restriction
- Prevent further offences/comms w D
What is the procedure for bail applications?
1) CPS applies to remand D in custody
2) D’s solicitor makes bail application to D
- Court to hear contested bail application > Mini-trial (relax strict rules of evidence)
3) CPS to challenge D’s application
- Make decisions known to court after adjournment
When may D make further bail applications after refusal?
2nd application
- Same facts/Legal arguments
- UNLESS change in circumstances
3rd application
- Change in circumstances
How may appeals against bail decisions be made?
If MC refuses bail > D can appeal bail at CC
- Complete rehearing (NOT review grounds of refusal)
- Most likely grant bail if appeal hearing is after serving sentence
How may CPS appeal against bail decisions?
1) CPS appeals vs bail > CC
- Oral notice (after bail grant + before D’s release)
- Oral notice > Writing (within 2 hours after proceedings)
=> Complete rehearing
2) D remanded in custody by MC
3) Appeal ASAP (not later than 2nd business day)
4) CPS appeals > HC
- D charged/convicted with imprisonable offence
What happens if D breaches bail/not comply with bail conditions?
Arrest by police > MC (within 24 hours, excluding Sunday)
Admitted/Proved > Court may remand D in custody for proceedings duration/impose more onerous conditions
- NOT criminal offence
If minor transgression > D receives stern warning re importance of abidance of conditions
What happens if D absconds bail (fail to surrender to custody at specified time and place in bail notice)?
Without reasonable excuse => Absconding offence => Court to issue warrant > D’s immediate arrest
If case listed for trial => D to be tried in his absence
If D found guilty in MC > Either/And
- Max 3 months’ imprisonment
- Unlimited fine (Level 5 - Standard scale)
If CC imposed bail > Criminal contempt > Either/And
- Max 12 months’ imprisonment
- Unlimited fine
With reasonable excuse => D not to have surrendered ASAP (reasonably)
What happens if D absconds bail (fail to surrender to custody at specified time and place in bail notice)?
Without reasonable excuse => Absconding offence => Court to issue warrant > D’s immediate arrest
If case listed for trial => D to be tried in his absence
If D found guilty in MC > Either/And
- Max 3 months’ imprisonment
- Unlimited fine (Level 5 - Standard scale)
If CC imposed bail > Criminal contempt > Either/And
- Max 12 months’ imprisonment
- Unlimited fine
With reasonable excuse => D not to have surrendered ASAP (reasonably)
