3. Bail and Remands

Question 1

when can mags adjourn case?

Answer 1

at any stage before case is sent to CC for trial

or

before a summary trial

Question 2

how can decisions on adjournment be challenged and when will they intervene ?

Answer 2

can only challenge by way of judicial review. High court will only interfere with a decision on adjournment if there are COMPELLING REASONS to do so.

Question 3

Examples of decisions on adjournment that have been challenged:

Answer 3

Mags refused adjournment despite the fact D and sol both couldn’t get to court due to bad weather

the decision to fix a date for a trial at which the prosecution expert could attend and the defence expert (whose report had been served in good time) could not was clearly wrong’

Question 4

when must the mags court remand (bail or custody) the accused on adjourning the trial on information?

Answer 4

they must do so where accused is 18 or over and offence is either way and

• on first occasion he was in custody or was on bail and surrendered to the court OR
• accused has been remanded at any time in course of proceedings

Question 5

what sections are the magistrates powers of remand governed by?

Answer 5

s.10 and s.18 MCA

Question 6

s.18 MCA relates to?

Answer 6

adjournments until allocation.

Question 7

s.10 MCA relates to?

Answer 7

appearances for summary offences until conviction and appearances for EW offences from after mode of trial has been determined in favour of summary trial to conviction

Question 8

when may the mags adjourn without remanding the accused?

Answer 8

MC has discretion to remand/not remand
- at all appearances for summary offences up to conviction AND
- at appearances for EW offences up to either a determination for trial on Indictment or summary conviction
**BUT ONLY IF **accused has not previously been remanded and initially appeared in answer to a summons/requisition

Question 9

when must the court fix a date for the next hearing upon adjourning?

Answer 9

Where a case is just adjourned - no need to fix date

Where there is a remand, adjournment date must be fixed and is date to which the accused is remanded.

Question 10

what is the max period that the mags can remand an accused in custody?

Answer 10

8 clear days

Question 11

can the mags make further remands?

Answer 11

person brought before court after remand can be remanded again.

Question 12

how long can an accused be remanded on bail by mags?

Answer 12

may be longer than 8 says if accused and pros agree to a longer period

Question 13

Custody time limit between 1st appearance and committal?

Answer 13

70 days

Question 14

custody time limit between first appearance and summary trial (EITHER WAY)?

Answer 14

for an either way offence:
70 days unless decision to hold summ trial is taken within 56 days - if so, CTL is reduced to 56 days

Question 15

custody time limit between first appearance and summary trial (Summary only)?

Answer 15

56 days

Question 16

custody time limit between committal and start of trial on indictment?

Answer 16

112 days

Question 17

custody time limit for multiple committals

Answer 17

If accused was committed for trial on two or more different occasions, the 112-day limit applies separately in relation to each offence

Question 18

custody time limit between committal and start of trial (s.51 sending)?

Answer 18

182 days

(any period where they were held in custody by mags must be deducted)

Question 19

custody time limit where indictment preferred by COA?

Answer 19

112 days from preferment

Question 20

custody time limit voluntary bill?

Answer 20

where proceedings are by way of a voluntary bill of indictment the 112-day period runs from the date of preferment of the bill

Question 21

what happens when a CTL expires?

Answer 21

accused MUST be granted bail in relation to the offence CTL relates to.

once CTL expires and is not extended, custody time- limit regime ceases to operate and will not apply to any further period of remand.

Question 22

what is the procedure for extending a CTL?

Answer 22

BEFORE the expiry - Crown court if accused has already been committed or mags in other cases - may extend if both following are satisfied:

1) pros acted with all due diligence and expedition and
2) there is good and sufficient cause for doing so.

can extend more than once

Question 23

bail can be granted in connection with?

Answer 23

proceedings (accused/convicted) or

arrest (under arrest/warrant for arrest )

Question 24

who can bail someone charged with murder?

Answer 24

only a Crown court judge

Question 25

who can the crown court bail?

Answer 25

anyone who:
- has been sent in custody for trial un CC
- has been given custodial sentence in mags and is appealing sentence/conviction
- is in custody of CC pending case disposal
- has applied after CC decision to state their case to Divisional Court or seeking JR
- who has had appeal cert granted by CC
- who has been remanded in custody b mags

Question 26

when does CC have to make murder bail decision

Answer 26

A Crown Court judge must then make a decision about bail as soon as reasonably practicable and, in any event, within the period of 48 hours (excluding weekends and public holidays) beginning with the day after the day on which the person appears before the magistrates’ court.

Question 27

is there a presumption in favour of bail?

Answer 27

yes there is a rebuttable presumption in favour of bail.

Question 28

who benefits from the presumption in favour of bail?

Answer 28

any person who appears before CC or MC in course of proceedings with offence or applies for bail in those proceedings

any person who has been convicted of an offence and whose case is adjourned for reports before sentencing (other than this situation - presumption does not apply after conviction)

any person who has been brought before the court for alleged breach of comm order.

Question 29

who cannot rely on the presumption in favour of bail?

Answer 29

anyone who has been convicted (other than where reports are being sought before sentencing).

presumption does not apply to bail from a police station (but custody should still grant bail unless refusal can be justified).

Question 30

bail following indication of guilty plea at PBV hearing?

Answer 30

Usually the position stays the same

if they plead on bail - stay on bail

If they plead in custody - remain in custody

Question 31

what are the exceptions to the presumption in favour of bail?

Answer 31

Court cannot grant bail to accused who is charged with

murder
attempt murder
manslaughter (with custodial sentence)
rape/attempted rape
other SOA 2003 offences

IF the accused has been convicted in the past of any of these offences UNLESS exceptional circs justify it.

“no bail for homicide or rape if previous conviction”

Question 32

test for bail for murder?

Answer 32

accused who is charged with murder may not be granted bail unless court of opinion that:

there is no significant risk that the accused will, if released on bail, commit an offence that would cause physical/mental injury to another.

Question 33

can bail be refused for an accused charged with indictable offence?

Answer 33

An unconvicted accused charged with an offence which is imprisonable and triable on indictment need not be granted bail if one or more of the grounds for a remand in custody

Question 34

what are the 3 main statutory reasons for refusing bail (sch 1 para 2) ?

Answer 34

fail to surrender
commit further offence while on bail
interfere with witnesses / obstruct course of justice.

Question 35

what is the standard of proof for the bail grounds?

Answer 35

court must be satisfied that there are substantial grounds for believing they would occur.

Question 36

sch 1 para 2 grounds (FTS, CFO, IW) do not apply where….

Answer 36

accused is 18, has not been convicted and it appears that there is no real prospect of them being sentenced to a custodial sentence in the proceedings

Question 37

what factors should court take into account in deciding whether para 2 grounds (FTS, CFO, IW) apply?

Answer 37

nature and seriousness of offence & probable method of dealing with offender

character antecedents associations and community ties

bail record (having answered bail in past)

strength of evidence against accused.

Question 38

nature and seriousness of offence

Answer 38

more serious offence, more severe sentence - more likely to abscond

Question 39

character and antecedents

Answer 39

previous convictions - make custody more likely - more reason to abscond

Question 40

associations and community ties

Answer 40

Examining the ‘community ties’ of the accused involves looking at how easy it would be to abscond and how much the accused has to lose by absconding.

Factors include:
- How long has accused lived at present address
- Does accused have a partner
- Does accused have dependent children
- Is accused in employment
- If so for how long
- Does the accused have a mortgage or protected tenancy

Question 41

bail record

Answer 41

Absconding in earlier proceedings is evidence of a risk that the accused may do so again

Question 42

risk of injury to someone else

Answer 42

include the fact that the accused has previously committed offences while on bail, or

the suggestion that potential prosecution witnesses have already received threats and/or are known to the accused

Question 43

strength of pros evidence

Answer 43

one who knows there is a good chance of being acquitted is less likely to abscond than one who anticipates almost certain conviction.

where it is borderline - court may prefer to risk accused absconding rather than risk acquittal following long period in custody.

Question 44

what are the other grounds for withholding bail?

Answer 44

• risk of injury to associated person (associated person = relationship or parent of child)
• accused already on bail for another offence (does not apply where no real prospect of custody being imposed)
• accused own protection (anger in the area / risk of public seeking retribution)
• where accused serving custodial sentence for another offence (can have technical bail)
• insufficient info for decision on bail
• previous absconding in present proceedings (does not apply where no real prospect of custody being imposed)
• accused charged with murder.

Question 45

bail in cases involving abuse of drugs?

Answer 45

accused may not be granted bail unless court of opinion that there is no significant risk of accused committing an offence while on bail and the 3 following conditions apply:

• drug test ev of class A being in someones body
• offence they are charged with is drug offence or court thinks it was committed due to misuse of class A
• person does not agree to drug dependency assessment or participate in any follow-ups if assessment is carried out

Question 46

exceptions to the presumption in favour of bail for summary offences?

Answer 46

Where summary offence punishable by imprisonment exceptions are:

• where accused has been granted bail & fts and court thinks they would fts again.
• accused on bail on date of current offence
• believes that D would commit offence (cause physical/mental harm) against associated person
• accused serving custodial setnecne
• not enough info

Question 47

Grounds for withholding bail for non-imprisonable offences

Answer 47

• where accused has been granted bail & fts and court thinks they would fts again.
• own protection
• already serving custodial
• where accused is under 18 and convicted of FTS offence and grounds to believe they would FTS, CFO, IW
• convicted of FTS and believe cause injury to associated person

Question 48

condition of duty to surrender to custody means?

Answer 48

surrendering into custody of the court the accused has been bailed to attend

Date fixed for surrender can be varied

FTS without reasonable cause = offence

Question 49

when can the court impose conditions on bail?

Answer 49

where it is necessary to do so to prevent FTS CFO IW

Question 50

what type of conditions can be imposed?

Answer 50

• residence (live & sleep)
• notification of address change
• report to police station
• not to enter certain place/area
• not to contact (indirectly/directly) someone
• passport surrender
• reside at bail hostel or probation hostel
• electronic monitoring
• curfew condition

Question 51

what are sureties?

Answer 51

A person granted bail in criminal proceedings may be required, before release on bail, to provide one or more sureties to secure the person’s surrender to custody

only in cases where there appears to be a risk of absconding

Question 52

what is a deposit of security?

Answer 52

persons granted bail may be required to give ‘security’ for their surrender to custody, i.e. deposit with the court money or some other valuable item which will be liable to forfeiture in the event of non-attendance in answer to bail

only if there is a risk of absconding

Question 53

where would an application to vary bail conditions be made?

Answer 53

to the court who granted bail OR
if has been committed for sentence or sent for trial to crown make app to crown court

Question 54

does the person applying need to give notice?

Answer 54

yes have to give advance notice to court and other party explaining what is sought and why

Question 55

when must the application be served if there is a hearing already due?

Answer 55

not less than 2 business days before any hearing at which they want the court to consider the variation

Question 56

if a hearing needs to be set for bail variation when does the hearing have to be?

Answer 56

no later than 5 business days after application was served

Question 57

does the court have to give reasons for varying bail?

Answer 57

court to give reasons for specified bail decisions

no duty to give reason for decision refusing to vary bail conditions

Question 58

what are the possible consequences for breach of bail?

Answer 58

arrest without warrant and bail being withdrawn

Question 59

who has to be present at a bail application?

Answer 59

each party and surety affected has to be present or have had chance to make reps

if accused is in custody and waived right to attend - they can be absent

if accused is in custody and was present when bail was refused previously - they can be absent

Question 59

do bail apps have to be in person?

Answer 59

no can be via live link or audio link as they are prelim hearings

Question 60

does the court have to justify a refusal of bail at a bail app?

Answer 60

yes

Question 61

what process will the court follow when deciding bail?

Answer 61

• ask pros if they have any objections to bail
• pros then, using CPS file and police info, set out their objections
• pros will then tell of pre-cons
• pros have to provide all info relevant to bail
• pros required to specify each statutory exception to presumption in favour of bail which they relt
• defence may present arguments for bail
• if no arguments by defence - pros still have to give objections so court can refuse on basis of them
• court then decides

Question 62

is there a right to make repeated argued bail applications?

Answer 62

accused who was refused bail can make fully argued application at next hearing even if it repeats arguments.

unless accused consents to being absent next hearing will take place within 8 clear days.

Question 63

how many times can the same arguments for bail be made?

Answer 63

if the second application fails, the court does not need to hear arguments it has already heard

Question 64

when are certificates of full argument required?

Answer 64

where mags adjourn case and remand in custody after hearing a fully argued bail app IF the court has not previously heard a fully argued bail app or has heard one but is satisfied that there has been a change in circs (must state what change was)

Question 65

why is the certificate of full argument important?

Answer 65

right to apply to CC for bail is dependent on it.

Question 66

what options are open to an Accused Remanded in Custody or on Conditional Bail by Magistrates?

Answer 66

can apply for bail to CC. can also appeal against conditions imposed by MC.

Question 67

procedure for applying/appealing to CC after MC bail decision…

Answer 67

• must give MC, CC, prosecutor and surety written notice of intention to make application as soon as reasonably practicable after MC decision
• notice must:
• – explain why bail should not be withheld / why condition should be varied
• – explain any further info/argument since MC decision
• – attach full argument certificate where it is a bail app
• pros opposing should notify CC and accused and serve notice for reasons

Question 68

when should a CC bail app be heard

Answer 68

no later than the business day after notice of the application or appeal was served.

Question 69

when can repeated bail apps be made to CC ?

Answer 69

where one app has been made cannot make another argued app unless there are fresh arguments / considerations

Question 70

do the prosecution have a right to appeal against granted bail?

Answer 70

yes either to CC if MC granted or High court if CC granted it (unless CC grasnted on appeal from MC)

Question 71

what cases is the pros right to appeal against granted bail limited to?

Answer 71

• offences punishable by imprisonment and
• prosecution conducted by or behalf of DPP and
• pros made reps that bail should not be granted (before it was granted).

Question 72

what is the procedure for prosecution appeals against decision to grant bail?

Answer 72

1. give oral notice of appeal at conc of hearing where bail granted
2. following oral notice - accused remanded in custody
3. must congirm oral notice in writing and serve on accused and court within 2 hours of conc of hearing
4. appeal then must be heard within 48 hours (excluding weekends and public hols)

Question 73

what are the 3 options open to the court when an accused fails to surrender?

Answer 73

1. issue an arrest warrant - accused to be arrested and brought to court (can be backed for bail)
2. can adjourn and extend bail (mags) or CC can take no further action and leave them to attend next hearing –> **only appropriate where there is good reason for non-attendance
   3. proceed in absence of accused subject to when this is acceptable

Question 74

where an accused has been bailed to attend court police can arrest them without warrant and prior to surrender date if…….

Answer 74

• they have reasonable grounds for believing accused is not likely to surrender to custody or
• reasonable grounds for believing that accused has broken or is likely to break condition of bail
• a surety has given written notice to the police that the person bailed is unlikely to surrender to custody

Question 75

what must happen to person arrested for breach of bail?

Answer 75

must be brought before mags as soon as practicable and in any event within 24 hours (excluding sundays)

Question 76

how is arrest following grant of conditional bail by crown court dealt with?

Answer 76

must be dealt with by the magistrates court always

if MC finds that they have breached bail they can:
* impose stricter conditions
* revoke bail and remand until fixed trial date or further CC order

accused can then apply for bail to CC.

Question 77

where a person fails to surrender/breaches bail (s.7 BA) what is the procedure when brought before the court?

Answer 77

1. court decides whether person is likely to FTS or has broken/likely to break condition of bail
2. if established they can either - remand in custody (subject to no real prospect that the person will be sentenced to a custodial sentence in the proceedings) or grant more onerous bail
3. if not establushed - bail MUST be granted on same conditions as originally imposed

Question 78

how does a s.7 BA (FTS/BOB) inquiry take place?

Answer 78

decision usually based on reps from pros & defence
then it is a 2 stage process
1. determine whether there has been a breach - accused must be given chance to answer allegation of breach
2. if satisfied - consider whether bail should be granteed again - here they consider reasonable excuses etc

Question 79

what does s.7 of the bail act do?

Answer 79

confers a power of arrest. It does not create a separate offence

Question 80

what does s.6 Bail act do?

Answer 80

creates an offence for failing to surrender

Question 81

when is FTS an offence?

Answer 81

when a person fails without reasonable cause to surrender to custody.

burden on accused to show reasonable excuse

Question 82

how is a FTS offence punishable?

Answer 82

punishable either on summary conviction or as if it were a criminal contempt of court’

Summarily convicted:
Imprisonment for up to 3 months and or
Fine of any amount

contempt of court (CC) or sent to crown for sentence:
imprisonment for up to 12 months and/or
an unlimited fine

Question 83

what is the procedure for prosecuting FTS offence?

Answer 83

proceedings either intiated by application of prosecution or courts own motion

punsihable either on summary conviction or as if it were contempt of court.

accused has to plea to charge.