3: Bail and Remand Flashcards
When can the mags adjourn a case?
At any time
How can you challenge an adjournment?
Can challenge adjournment with judicial review.
When MAY a court remand D?
Court MAY fix time + place of trial unless D is remanded. Court MAY remand D, and if 18+ must if triable either-way.
On adjourning proceedings for an either-way offence, the court must remand the accused unless:
- He first appeared in answer to a summons or requisition
- Not been remanded at an earlier hearing.
The Magistrates may: adjourn without remanding the accused:
- Appearances for summary offences up to conviction
- Appearances for either-way offences up to determination for trial on indictment or summary conviction.
Max period mags may remand D in custody =
8 clear days. Can further remand. D can be remanded longer if remanded on bail, him and pros agree.
Where mags summarily convicted + custodial sentence, it MAY grant bail pending appeal to CC. D charged with murder =
= NO bail unless CC judge allows.
When must a CC judge made the decision of bail?
CC judge must mke decision of bail ASAP or within 48 hrs, beginning day after D appears in mags.
Rebuttable presumption bail, inc if D alleged breach of community order. Does not apply:
- Once convicted = if appealing there is no presumption.
- Committed to CC for sentence
- Bail from police station when not charged
Bail after guilty plea = bail is norm even if custodial sentence unless good reasons not
Court must NOT grant bail where:
- Murder
- Manslaughter
- Rape
- Sexual offences
If convicted of these in past, unless exceptional circumstances justify it. Conviction includes finding not guilty by reason insanity.
Inevitability of custodial sentence is NOT exception to bail, unless
substantial grounds fail to surrender.
Grounds for withholding bail: Substantial grounds:
cramp
- D serving custodial sentence
- Risk of injury to “associated person”;
- D has absconded in present proceedings**
- D charged with murder
- D’s own protection
- D already on bail**
- Insufficient information
** - NOT apply where D 18 + not convicted in these proceedings + no real prospect he sentenced to CS.
Grounds for withholding bail : DRUGS
Bail + drugs = if 18+ and:
- Drug test evidence, Class A drug in D’s body
- Substantial grounds for believing misuse caused offence charged
- Person not agree to undergo assessment
may not be granted bail, unless no significant risk of committing offence
TIME LIMIT.
SUMMARY TRIAL – First appearance -) trial =
56 DAYS
TIME LIMIT.
EITHER WAY Summary– First appearance -) hearing evidence =
- 70 dys, unless decision for ST taken within 56 dys.
TIME LIMIT.
INCTABLE – First appearance -) committal =
70 dys
TIME LIMIT.
INDICTABLE – Committal -) trial =
- 112 days
TIME LIMIT.
Sent to CC
max 182 days
TIME LIMIT.
APPEAL
112 days
TIME LIMIT.
Voluntary Bill
112 days
If custody time limit expires = MUST get bail. Court may extend time limit if:
- Pros acted with all due diligence and expedition; and
- Good and sufficient cause
D can be refused bail if:
- One charge = triable on indictment; and
- Punishable with imprisonment.
Bail refused offence non-imprisonable
- D child or YP
- D convicted in proceedings
- protection
- Serving custodial sentence
- D arrested bail offence
- previously failed surrender + would not surrender now.
CANNOT remand D custody for preparing medical/psychiatric reports if non-imprionable.
Grounds for refusing bail TEST: Substantial grounds for believing D would:
- Fail to surrender;
- Commit offence on bail
- Interfere with witness
These grounds don’t apply where D is 18 and not convicted there, and no real prospect D sentenced to custodial sentence. Court must be satisfied on balance of probability!
If offence indictable and imprisonable court can only withold bail:
- Substantial grounds:
- fail surrender “
- commit offence on bail”
- interfere witness”
- injure “associated person”
- charged with EW and on bail at time of present offence”
- protection
- custodial sentence serving
- information
- alreay failed to surrender in this case + arrested”
- case adjorned for reports + impractical witout D in custody
9.
Bail refusred for summary offences:
- previously failed surrender custody + believes she wouldnt now”
- already on bail + satisfied substantial grounds he would committ offence if released”
- substantial grounds injure “associated person”
- protection
- custodial sentence serving
- released on bail _ substnatil grounds fail surrender, commit offence, interfere witness or obstruct course of justice if released”
- information
Grounds for refusing bail TEST: Substantial grounds for believing D would:
Court should look at:
Court should look at:
- Nature + seriousness of offence
- Character, antecedents
- Strength pros evidence
- Misuse of controlled drugs
Can you get bail when murder case?
NO bail, unless no significant risk he will commit offence that would cause physical/mental injury.
Imprisonable summary offences
Exceptions to presumption for bail:
- D previously bailed+failed to surrender+ will do again**^^
- D previously bailed + substantial grounds D commit offence**
- Substantial grounds that D will commit offence
- D kept for own custody
- D serving custodial sentence
- Substantial grounds if bailed, D fail to surrender + interfere with witness/justice
- Insufficient info^^
** NOT apply where 18 + not convicted in these proceeds + no prospect sentenced to CS.
^^ NOT apply where offences are non-imprisonable.
Non-imprisonable offences
Exceptions to presumption of bail:
- Under 18, or convicted offence + previously bail granted, failed surrender + will fail here.
- D kept for own protection
- D serving custodial sentence
- Under 18 and arrested for failing to surrender or breaking condition + substantial grounds fail to surrender, commit offence, infere witness/justice
- D failed to surrender or break condition and believed he will commit offence
Failure to comply with the condition of bail?:
Conditions of bail, unconditional/conditional. Failure to surrender to custody is an offence.
Conditions that MAY be imposed: TEST: necessity to:
- Surrender to custody
- Not commit offence
- Not interfere witness/justice
- Help with inquiries or a report
- Attend interview with legal rep
No conditions imposed unless:
- –
- Failure to surrender
- Further offences
- Interference witness
- for D’s protection,
- if child/YP, his own welfare/interests.
NOT substantial grounds, TEST: necessary – “real and not fanciful risk”.
Electric monitoring is often combined with curfew condition.
What is a sureties?
No power requiring sureties prevent further offence. More than one surety is possible. No surety comes forward = D on bail, but stays in custody. Person cannot stand as surety himself.
Test for making D give security?
Security – D may be required to give security. Security and security may be required if = necessary.
Where security given and D absconds = court MAY
unless reasonable cause for failure, order forfeiture of security.
No obligation for TP to be notified before security forfeited.
Variation to bail conditions-
How and what must they do?
Pro can make app to vary. Where party applies he must give advance notice, explain what is sought + why. App MUST be served not less than 2 business days before hearing. Court may vary without hearing if: variation is agreed. If there is a hearing, should take place no later than 5th business day after app served.
Breach of condition = MAY mean D arrest without warrant.
PROCEDURE IN MAGS COURT – BAIL
Do the strict rules of evidence apply in bail?
NO - NOT to the bail applications
Bail cannot made unless each party
present/represents.
If D in custody, bail MAY be considered in absence if:
- Waived right to attend; or
- Present when bail refused + in custody continuously since.
Bail hearing MAY be in private/public. Court must justify any refusal of bail. When adjourn case, ask pros if object to bail. Pros summarises objections to bail, no police officer connected with case will be present. Justices normally told of D’s previous convictions. Def goes after Pros. If def doesn’t make bail app, pros should present cursory objs to bail. Pros MUST produce all relevant info. If formal evidence is given witnesses give it on voir dire form.
Is there a possibility to make repeated argued bail applications?
What are the time-limits
D has right to make repeated bail apps, even if same arguments.
Next hearing = within 8 clear days.
Remand in custody for up to 28 days.
Where second app fails = court doesn’t need to hear arguments as to fact or law previously heard. After 2nd argued bail app – court MAY refuse to hear bail if satisfied D exhausted argued bail apps AND no material change of circumstances.
What happens where the second bail application fails?
Where second app fails = court doesn’t need to hear arguments as to fact or law previously heard.
After 2nd argued bail app – court MAY refuse to hear bail if satisfied D exhausted argued bail apps AND no material change of circumstances.
Certificates of full argument =
When does the court make this?
Mags adjourns and remands D in custody after bail app.
Court must issue certificate if:
- Could not previously heard full argument made by D in proceedings in question; or
- Previously heard argument and there has been a change in circumstances.
Where in second bail app – there is change of circs, certificate must state this. With certificate of full argument, D can apply to CC. Obligation to issue certificate applies if bail refused on adjourn for medical records.
Where D refused bail by mags, he may apply to CC, also appeal against mags decision to impose conditions on bail.
PROCEDURE FOR PROS APPEAL
- Pros MUST oral notice appeal at conclusion proceedings where bail granted AND before D released from custody. Includes: notice given to justice clerk 5 mins after court rose, but before D released. Notice can be given -) justice clerk.
- Mags MUST remand D in custody
PROCEDURE FOR PROS APPEAL
Pro can serve written notice 3 mins late – time-limit should not defeat appeal if:
- Pros given time to serve notice within 2 hour
- Used due diligence to serve notice
- Failure was not the fault of pros but circumstances outside his control
CC MUST hear appeal within 48 hours, excluding weekends + public holidays.
PROCEDURE IN CC
Written notice of intention MUST be given to mags, CC, pros and surety ASAP after Mags decision. Written notice MUST explain:
- why bail should not be withheld/condition be varied
- further info/legal argument since Mags court;
- attach copy of certificate
Where pros oppose app – he MUST notify CC and D and serve notice of reasons opposing app. Unless CC says otherwise, should be heard no later than business day after notice of app served. Reasons MUST be given when bail =refused. If CC makes decision and D legally rep, and rep doesn’t request copy of reasons, copy doesn’t need to be given.
PROCEDURE IN CC
Bail app MUST be in public or private - Circuit judge/recorder hears it. A surety, required by CC must enter recognizances before:
- CC officer
- Police officer in charge police station or inspector; or
- Governor of prison
PROCEDURE IN CC
Pros has right to appeal to CC against Mags bail and appeal to HC when CC grants bail. This is limited where:
- D charged, or convicted with imprisonment
- Pros conducted by/on behalf of DPP;
- Before bail granted, pros made reps that bail should not be granted.
Failure to on bail to appear– Court MAY:
X
- If triable either-way, MAY try with consent D, and consent MUST be given at hearing D present, UNLESS – good reason for absence and represented by lawyer who consents to summary trial.
- issue warrant (DISCRETIONARY) + MAY backed for bail.
- Adjourn + extend bail. ONLY WHERE: TEST: good reason.
- Proceed in absence of D.
Offence of failure to surrender. If person fails without reasonable cause surrender
= guilty of offence. BOP -) D. If D reasonable cause fail to surrender = commits offence IF fails to surrender after. Where D has reasonable cause = must surrender custody ASAP after excuse, if not = commits offence.
Offence of failure to surrender is punishable on summary conviction or contempt of court.
Offence of failure to surrender
PENALTY?
Summarily convicted = Punishment up 3 months and/or fine any amount.
Offence of failure to surrender
A Mags MAY commit to CC for sentence if:
- Offence merits greater punishment; or
- Sent to CC for other offence + CC should deal also with fail to surrender.
If D is sentenced to CC for failing surrender = imprisonment up to 12 months and/or unlimited fine.
Failing to surrender is not contempt of court. No requirement to lay information/written charge + requisition where D absconded. Court by own motion must initiate proceedings.
BREACH BAIL CONDITION – Police MAY arrest without warrant:
- Reasonable grounds not likely to surrender
- Reasonable grounds he had broken/likely to breach condition
- Surety given written notice D unlikely to surrender + so wishes to be relieved of obligations.
BREACH BAIL CONDITION
Arrested person MUST be brought before Mags (single justice) – WHEN?
24 hours (exc Sundays) Time limit = V.STRICT or unlawful. Justice need not sit in courtroom.
If Mags thinks D likely breach condition/has -) MAY remand him or grant other conditions.
BREACH BAIL CONDITION
cOURT cannot withhold bail is:
. Power to remand where: 18 and not convicted, then mags CANNOT withhold bail if no real prospect sentenced custodial sentence. Where Mags not think fail to surrender or broken/likely condition -) MUST grant bail, same conditions, not include inquiry of reasonable excuse for breaching. If breached bail, justice MUST consider if bail should be granted.
If D broken bail, justice CAN rely hearsay if properly evaluated. If broken bail NOT criminal offence, only power of arrest.
