3. Bail and remands

Question 1

When may a court adjourn a case?

Answer 1

A mags court may, at any stage before the case is sent for trial at the Crown, adjourn the proceedings.

Question 2

How can someone challenge an adjournment?

Answer 2

By way of judicial review, if there are compelling reasons to do so, but the high court will be particularly slow to do so given its discretionary nature.
A JR may only succeed on well recognised but limited grounds (error or principle, error of law, or where the decision can be categorised as plainly wrong).

Question 3

Where is the power to adjourn contained?

Answer 3

MCA, SS 10 and 18.
S10:
1. A mags court at any time before or after being to try an information, may adjourn when composed of a single justice
2. Need not fix the date and time
3. May remand the accused and, where over 18, shall do so if the offence is EW and:
a. On first appearance, he was in custody or had surrendered to custody having been on bail
b. The accused has been remanded at any time during the proceedings
And where the court remands the accused, the time fixed for resumption shall be that at which he is required to appear or brought before the court/would be brought before the court.
S18:
1. This applies where a person 18 or over is brought before a mags court on an information charging him with an offence triable either way and
a. He indicates he would plead not guilty
b. Or his representative so does.
2. A mags court may adjourn the proceedings at any time, and doing so when the accused is present may remand him, and shall remand him if:
a. On first appearance he was in custody or, having been on bail, had surrendered to the court
b. Has been remanded at any time in the course of the proceedings; and when remanded, the time fixed shall be that which he is required to appear or be brought before the court in pursuance of the remand.
“Remand” in either section means on bail too.
S18 is for until mode of trial has been determined.
S10 is for summary offences up to conviction and for EW offences after mode of trial has been determined in favour of a summary trial up until conviction.
It follows that the magistrates may, at their discretion, adjourn without remanding the accused: (a) at all appearances for summary offences up to conviction; and (b) at appearances for either way offences up to either a determination for trial on indictment or summary conviction, provided the accused initially appeared in answer to a summons or requisition and has not subsequently been remanded.
When a case is simply adjourned, there is no need to fix a date, whereas if there is a remand the adjournment must be fixed forthwith and is the date to which the accused is remanded.
An accused who is not remanded and who then fails to appear on the date to which the case is adjourned commits no offence, but it may be possible either for an arrest warrant to be issued or for the proceedings to be conducted in the absence of the accused. An accused who has been remanded on bail and who then fails without reasonable cause to surrender to custody commits an offence under the BA 1976.

Question 4

What is the maximum period that a magistrates’ court can remand an accused in custody?

Answer 4

Eight clear days (MCA 1980 s128), except where:
* Following summary conviction, at which point there is a maximum of three weeks (or four if not in custody) for inquires.
* Following the court finding guilt, there may be a remand of up to three weeks (four on bail) for a medical examination
* Where mode of trial is determined as summary but the court is not constituted so as to proceed immediately, there may be a remand to which a date a court will be properly constituted even if longer than eight clear days
* Where s128A applies, a second or subsequent remand may be for up to 28 clear days.
* An accused who is already on a custodial sentence may be remanded for up to 28 clear days or for the anticipated release date.

Under the MCA 1980, s. 128(6)(a), the accused may be remanded for a period greater than eight clear days if the remand is on bail and both the accused and the prosecution agree to a longer period of remand.

Question 5

What are the custody time limits?

Answer 5

S22 of the Prosecution of Offences Act 1985 allows for the SoS to make regulations fixing:
a. The maximum period available to the prosecution to complete a pre-trial stage proceeding for an offence; and/or
b. The maximum period for which an accused may be kept in custody while awaiting completion of such a stage.

They may prescribe an overall time limit in which the pros must complete the stage of proceedings or a custody time limit (i.e. the maximum period for which the accused may be remanded in custody while the stage is being completed.

Question 6

How long is the custody time limit?

Answer 6

• Between first appearance and committal, 70 days.
• Between first appearance and summary trial, if the offence is either way 70 days unless the decision was taken within 56 days at which point it would be 56 days. For a summary offence, the max period is 56 days
• Between committal and trial on indictment: 112 days.
• Multiple committals: 112 days applies separately to each offence
• Section 51 sending. Where the accused has been sent for trial under this, the max period is 182 days between the sending and start of trial. Any period during which the accused was held in custody of the magistrates must be deducted.
• Retrial directed by the Court of Appeal (112 days) from preferment of court of appeal indictment
• Voluntary bill (112 days from preferment)

Question 7

What happens if a custody time limit expires?

Answer 7

The accused must be granted bail in relation to the offence the limit relates. Where the crown court is notified that the 112 day time limit between committal and the start of trial is about to expire, it must bail the accused.

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

Question 8

How can a custody time limit be extended?

Answer 8

The crown court can, if the accused has been committed for trial, or the magistrates; court, in other cases, may extent the limit if the below two matters are satisfied:
(a) That the prosecution has acted with all due diligence and expedition; and
(b) That there is good and sufficient cause for doing so

Instances of good and sufficient cause are given in 22(3)(a)(i) and (ii) but they are no more than examples.

An already extended limit can be extended further.

The extension of custody time-limits should be addressed at the time that a trial date was fixed outside of the existing limit, rather than after the decision as to listing had already been made.

Question 9

What is bail?

Answer 9

Made under the Bail Act 1976. Defined as “bail grantable in or in connection with proceedings for an offence to a person who is accused or convicted of the offence” or “bail grantable in connection with an offence to a person who is under arrest for the offence or for whose arrest for the offence a warrant (endorsed for bail) is being issued”.

Question 10

What power does a magistrates’ court have to grant bail?

Answer 10

When adjourning a case, may remand the accused either in custody or on bail.

Can also grant bail after conviction for reports.

For cases where the mags s51 sends, they may also remand. Similarly, committals for sentence has the same position.

For times when someone has been convicted and sentenced to prison summarily, the mags may grant bail while the accused appeals.

Cannot grant bail for someone who is charged with murder as can only be granted by a CC judge.

Question 11

What powers does a crown court have to grant bail?

Answer 11

S81(1(a)) to (g) SCA 1981:
* Someone sent in custody for trial in the crown
* Someone given a custodial sentence following conviction in the mags and is appealing
* Who is in the custody of the crown court pending disposal of the case (whenever the cc adjourns a trial or adjourns between conviction and sentence)
* Someone whose case has been decided by the CC but who has applied to the court to state a case for the Divisional Court’s opinion or is seeking JR of the decision
* To whom the CC has granted a certificate that the case is fit for appeal to the CoA
* Who has been remanded in custody by a mags’ court on adjourning the case, provided the mags’ court has granted a certificate that it heard full argument before refusing bail

Only the CC judges can grant bail for a person charged with murder. Must make the decision within 48 hours (excl. weekends and public holidays) of appearing in the mags. This applies regardless of if they are charged with any other offence.

Question 12

What is the presumption in favour of bail?

Answer 12

S4 of the Bail Act 1976 gives a rebuttal presumption in favour of bail except as provided in schedule 1 of the bail act. The persons that this applies to are any person:
* Who appears before the CC/mags’ in the course of or in connection with proceedings for an offence, or applies to court for bail in connection with those proceedings
* Who has been convicted of an offence and whose case is adjourned for reports before sentencing
* Who has been brought before the court under the SA sch. 10 for an alleged breach of a requirement of a community order

Apart from the above, the presumption does not apply to those convicted of an offence.

For custody officers, there is a duty to grant bail unless its refusal can be justified on grounds similar to those which a court would be justified in refusing bail for.

Whenever bail is granted, the general provisions concerning bail apply (e.g. a person who fails without reasonable cause to surrender commits an offence).

Where an accused enters a guilty plea at the plea before venue procedure and is then committed for sentence, the usual procedure is to continue bail, unless there are good reasons for remanding. If the accused is in custody, it would be unusual to change that position if the reasons for refusal stay the same.

Question 13

What is the bail position for accused who have been accused of and convicted previously of homicide or rape?

Answer 13

Court may not grant bail to an accused who is charged with or convicted of murder/attempt.

Nor those charged Murder, manslaughter, rape/attempt rape, or certain other offences if the accused has been convicted in the past, unless the court is satisfied there are exceptional circumstances which justify it.

For the manslaughter one, this only applies if the accused got a custodial sentence.

Conviction includes if a person was found not guilty by reason of insanity or was found to have done the act or omission but was unfit to plead.

Convictions in other eu member states count if they would be treated as relevant convictions for these purposes if the conviction was here.

Question 14

What are the four exceptions to the presumption of bail?

Answer 14

Those charged with murder.

Those charged with murder, manslaughter, rape/attempt rape, or certain other offences if the accused has been convicted in the past, unless the court is satisfied there are exceptional circumstances which justify it.

Those convicted of an offence

Appellants

Question 15

Can a court grant bail to someone charged with murder?

Answer 15

Not unless the court is of the opinion that there is no significant risk that the accused would, if released, commit an offence that would/would belikely to cause physical or mental injury to another.

Question 16

In what circumstances can someone charged with an indictable offence be refused bail?

Answer 16

For those charged with an imprisonment and triable on indictment offence, the grounds for refusing bail are below (part 1 of sch. 1):

There are substantial grounds for believing the defendant on bail would:
* Fail to surrender
* Commit an offence while on bail
* Interfere with witnesses or otherwise obstruct the course of justice

Part 1A applies for imprisonable summary offences and part 2 applies where no offences are summary.

Question 17

What is the standard of proof for refusing bail?

Answer 17

Merely satisfied that there are substantial grounds for believing that they would occur.

Not subject to usual rules of evidence.

Question 18

What is the position on bail where there is no real prospect of a custodial sentence?

Answer 18

The substantial grounds part would not apply where there is no conviction and the accused is 18

except risk to an associated person/insufficient information/drugs cases

Question 19

What are the relevant factors when making a decision on bail?

Answer 19

• Nature and seriousness of the offence and probable method for dealing with the offender (a more serious offence means the offender is more likely to abscond it is not an automatic reason for refusing bail. The presumption for bail continues to apply after conviction where there is an adjournment for the preparation of pre sentence report before sentence is passed. A custodial sentence in those circumstances being likely is still not an exception to the right to bail unless it justifies it on any of the other grounds.
• Character, antecedents, associations, and community ties. This refers primarily to previous convictions as they may make a custodial sense more likely plus a previous record of good character means a person is more likely to be trusted by the courts. Previous convictions under the bail act for failing to surrender to custody are especially relevant. The word associations is generally taken to refer to undesirable friends with criminal records examining the community ties of the accused looks at how easy it would be to abscond and how much the accused has to lose by absconding. An accused of no fixed abode living in short term accommodation is not automatically barred from bail but the ease of disappearing to another address is a factor to be considered.
• Accused’s record for answering bail
• Strength of evidence. This is relevant to whether an accused would answer bail in the sense that one knows there’s a good chance of being acquitted is less likely to abscond the one who anticipates almost certain conviction. The reverse way around is also relevant. In borderline cases the court may want to run the risk of absconding instead rather than risk the injustice of someone being remanded and then acquitted.
• The risk the accused may engage in conduct likely to cause physical or mental injury to someone else. Where the court is satisfied that there are grounds for believing the accused would commit an offence while on bail the court considers whether an offence is likely to cause physical or mental injury to another person
  These considerations are not exhaustive as there is a factor of any other considerations which appear to be relevant. May include threats to witnesses who have already received them or a misuse of controlled drugs by the defendants.

Question 20

What other grounds are there for withholding bail?

Answer 20

The other grounds include:
* risk of injury to an associated person. This is where if released on bail the accused would commit an offence while on bail by engaging in conduct that would or would likely cause mental or physical injury to an associated person or else cause such a person to fear such injury. An associated person includes people who are or have been married to each other, who are or have been civil partners, cohabitants or former cohabitants, people who live or have lived in the same household otherwise as an employee tenant lodger or boarder, relatives, people who have or have had an intimate person relationship with each other which is or was of sufficient significant duration, and in relation to any child parent or person who has or has had parental responsibility for the child.
* Where the accused is on bail for another offence. This does not apply where the accused is over 18 has not been convicted in the proceedings and if convicted is likely to not get a custodial sentence.
* for the accused own protection. This includes where the accused would face significant backlash from members of a community the offence was committed in. where the accused is a child or young person bail may be refused if the accused should be kept in custody for his own welfare.
* whether the accused is already serving a custodial sentence for another offence. This only applies if the accused is in custody pursuant to a sentence not a remand. Where the accused is likely to be in custody for a significant period of time the court may wish to grant a technical bail so that the expense of coming back to court and giving Remand again is saved.
* where the court has insufficient information. Bail need not be granted by the court is satisfied that owing to a lack of time since the commencement of the proceedings it has not been practicable to obtain sufficient information for the purposes of taking their decision on bail. In such cases the court might remand in custody possibly for a shorter than usual period to enable the necessary information to be discovered. May apply where the police are not satisfied that the accused has given them proper particulars.
* whether the accused has absconded in the present proceedings. This does not apply where the accused has attained the age of 18 has not been convicted of an offence in the current proceedings and it appears to the court that there is no real prospect that the queues will be sentence to a custodial sentence.
* Where charged with murder
Furthermore where an accused is aged 18 or over, they may not be granted bail, unless the court is of the opinion that there is no significant risk that the accused will commit an offence while on bail, where three conditions below are set out:
* there is drug test evidence but there is a specified Class A drug in the person’s body
* either the accused is charged with an offence under the Misuse of Drugs act Section 5 subsection 2 or sub Section 3, and the offence relates to a specified Class A drug, or the court is satisfied that there are substantial grounds for believing that the misuse of a specified class a drug caused or contributed to the offence with which the accused is charged or that the offence was motivated wholly or partly by intended misuse of specified class a drug.
* The person does not agree to undergo an assessment of dependency upon or protect city to misuse any specified Class A drugs who has undergone such an assessment but does not agree to participate in any relevant follow-up which has been offered. If an assessment will follow up his proposed and agreed to it will be a condition of bail that is undertaken

the phrase may not is a prohibitive one and makes it plain the court should not grant bail unless satisfied that there’s no significant risk of the accused committed offences whilst on bail. essentially creates a reverse burden or presumption

Question 21

How can a court refuse bail to an accused charged with summary imprisonable offences?

Answer 21

• Where the accused has previously been granted bail and has failed to surrender to custody in these proceedings and the court believes in view of that failure that the accused would if released on bail fail to surrender to custody
• where the accused was on bail on the date of the current alleged offence if the court is satisfied that there are substantial grounds for believing that if released on bail the accused commit an offence whilst on bail
• where the court is satisfied that there are substantial grounds for believing that, if released on bail, the accused would commit an offence while on bail by engaging in conduct that would, or would be likely to, cause physical or mental injury to an associated person, or cause such a person to fear physical or mental injury
• where the court is satisfied that the accused should be kept in custody for the accused’s own protection or welfare if a child or young person
• where the accused is already serving a custodial sentence
• where the accused has been arrested under the bail act Section 7 and the court is satisfied that there are substantial grounds for believing that if released on bail the accused would fail to surrender to custody, commit an offence while on bail, or interfere with witnesses or otherwise obstruct the course of justice

Question 22

How can an accused be refused bail when charged with a non-imprisonable offence?

Answer 22

• Where the accused is under the age of 18 or has been convicted of an offence in those proceedings and in either case having been previously granted bail in criminal proceedings, has failed to surrender to custody and the court believes, in view of that failure, that the accused would fail to surrender to custody
• where the court is satisfied that the accused should be kept in custody for his or her own protection or welfare
• where the accused is already serving a custodial sentence
• where the accused is under the age of 18 or has been convicted of an offence in those proceedings and in either case has been arrested under the bail act Section 7 and the court is satisfied that there are substantial grounds to believe that the accused would fail to surrender to custody commit an offence on bail or interfere with witnesses or otherwise obstruct the course of justice
• where the accused has been arrested under Section 7 and the court is satisfied that there are substantial grounds for believing that, if released on bail, the accused would commit an offence while on bail by engaging in conduct that would be likely to cause, physical or mental injury to associated person, or to cause such a person fear of such an injury

Question 23

What are conditions of bail?

Answer 23

The bail act Section 3 governs these. Bail may be granted with or without conditions without conditions being unconditional bail, with the only condition in that case being the accused has to simply surrender to custody such as by attending court at the time and date specified. Failing to surrender to the custody of the court on unconditional bail is an offence.

Question 24

When may conditions be imposed?

Answer 24

Where the court views them necessary to secure that the person:
* surrenders to custody
* does not commit an offence on bail
* does not interfere with witnesses or obstruct the course of justice
* is available for the making of inquires or a report; and
* attends an interview with a legal representative

Can also be imposed for the protection of the accused or their welfare in a child or young person.

No conditions can be imposed unless the court feels it necessary to do so either:
* for the purpose of preventing the occurrence of any events (commits further offences, absconds, or interferes with witnesses)
* for the accused’s own protection

Question 25

What conditions can be imposed?

Answer 25

ANY the court feels necessary.

Commonly imposed conditions include:

(a) a condition of residence, often expressed as a condition that the accused is to live and sleep at a specified address;
(b) a condition that the accused is to notify any changes of address to the police;
(c) a condition of reporting (whether daily, weekly or at other intervals) to a local police station;
(d) a curfew (i.e. the accused must be at a specified address between certain hours);
(e) a condition that the accused is not to enter a certain area or building or go within a specified distance of a certain address;
(f) a condition that the accused is not to contact (whether directly or indirectly) the victim of the alleged offence and/or any other probable prosecution witness; and
(g) a condition that the accused’s passport must be surrendered to the police (sometimes with an additional restriction to prevent the accused from applying for travel documents).
(h) electronic tagging

A special form of residential condition is that the accused is to reside at a bail hostel or probation hostel. When imposing such a condition the court may, and normally will, impose an additional requirement that the accused must comply with the rules of the hostel.

Question 26

Can sureties be taken?

Answer 26

Yes. No fetter on this discretion, but can only imposed where it appears to the court to be necessary to do so to prevent the big three bail reasons for refusals.

Question 27

Can sureties/security be taken?

Answer 27

Yes. No fetter on this discretion but can only imposed where it appears to the court to be necessary to do so to prevent the big three bail reasons for refusals.

A person cannot stand as surety for him or herself. However, they can be required to give security for their surrender only if considered necessary. If they do abscond, forfeiture may be made. Can accept a third party security.

Question 28

Can the conditions be varied?

Answer 28

Yes, the accused can apply for the conditions to be varied to the court which has granted bail or the CC if the accused has been committed or sent for trial.

The prosecution can also make an application for variation, or for conditions to be imposed.

Party applying must give advance notice to the court and other party, explaining what is sought and why. Application must be served not less than two business days before the hearing. Court may determine the application if agreed by the parties without a hearing. If there is a hearing, it should take place no later than five business days after the application was served.

No duty to give reasons for refusal to vary, though any reasons given must be legally adequate.

Question 29

What is the procedure for making a bail application?

Answer 29

The court may allow for attendance from a live audio or video link. The guidance for the procedure is in the CrimPR 14, which states:
* no decision can be made unless each party (including the one stumping up surey) is present or has had an opportunity to make representations
* for those in custody, the application may proceed if they have waived their right to attend or who was present when it was refused previously and who has been continuoiusly in custody since.
* This may take place in public or private
* The court has to justify any refusal of bail in accordance with the Bail Act sch. 1.

The question of bail is always a matter for the court. However, when adjourning a case of an unconvicted and who is entitled to make a bail application, normal practice is to ask the prosecution whether they have any objections to bail. They prosecution advocate will then outline any. The defence advocate will respond. Even where the defence chooses not to give objections to bail, the prosecution should still give some objections.

The information on which bail is decided is generally only the submissions. The prosecutor is required to provide all relevant information.

No requirement for formal evidence, but it can be given.

Prosecution will not normally reply to the application but they will have a right to do so to correct alleged mis-statements of fact from the defence.

The court will then announce its decision.

Question 30

Is there a right to make repeatedly argued bail application?

Answer 30

Yes, regardless if those arguments were said previously. Unless the accused consents to being remanded, the next hearing will take place within eight clear days.

Should the second application fail, BA 1976 sch 1 part IIA provides that, at subsequent hearings, the court need not hear arguments as to fact or law it has heard previously. This is so even though each court should consider whether the accused ought to remain in custody.

Consequently, at this stage they need only hear submissions to the extent of satisfying themselves the accused has exhausted the bail applications that they are entitled to of right and that there has been no material change of circumstances since.

Part IIA of sch. 1 to the BA 1976 applies to bail applications in the Crown Court just as it applies to applications before the magistrates. Therefore, if one application for bail has already been made to the Crown Court, a further argued application may not be presented unless there are fresh arguments or considerations to put before the court.

Question 31

What are certificates of full argument?

Answer 31

They are certificates confirming that full argument was heard if either the court has not previously heard full argument on a bail application in the proceedings by the accused, or it has previously heard such argument but is satisfied that there has been a change in circumstances or that new considerations have been put before it.

In a case where the court has heard a second or subsequent fully argued application on the basis of a change in circumstances or new considerations, the certificate must state what the change was.

The significance of the certificate is that the right to apply for bail in the Crown Court is dependent on it.

The obligation to give a certificate arises upon adjourning a case or when remanding an accused in custody after a full-argued bail application.

An adjournment during summary trial includes an adjournment for reports, so the obligation to issue a certificate may arise at that stage. Also applies for medical reports.

The accused must be given a copy of the certificate.

Question 32

What Options are Open to an Accused Remanded in Custody or on Conditional Bail by Magistrates?

Answer 32

An accused who has been refused bail by a magistrates’ court may apply for bail to the Crown Court. An appeal can also be made against a decision of a magistrates’ court to impose conditions on bail. Only where there is a full argument certificate.

If a person who has been refused bail on the first occasion by a magistrates’ court and that person appeals to the crown, they lose their second automatic opportunity for bail.

An accused who has been sent for trial under the CDA 1998, s. 51 or 51A, may apply to the Crown Court for bail by virtue of s. 81(1)(a) of the 1981 Act, which empowers the Crown Court to grant bail to any person who has been sent in custody to appear before it. At this stage, there is no need to rely on a certificate of full argument.

Question 33

What is the procedure for bail applications in the Crown Court?

Answer 33

Notice of Appeal:

Written notice (using the prescribed form) must be given to the magistrates’ court, the Crown Court, and the prosecutor (alongside any surety) as soon as reasonably practicable after the decision of the mags. Notice must explain why bail should not be withheld, or why the condition under appeal should be varied, should identify any further information or legal argument that has since become available and, where it is an application for bail, should attach a copy of the certificate of full argument.

If the prosecution oppose, it must notify the Crown and accused at once, and must serve notice of the reasons for opposing.

Unless the Crown directs otherwise, the application or appeal should be heard no later than the business day after notice of the application or appeal was served.

The hearing:
The application may be heard in public or private, though usually in private. Hearing follow the pattern of a bail app in the mags’.

If bail is granted to an accused who was refused it by magistrates, the Crown may direct the accused to appear ‘at a time and place which the magistrates’ court could have directed’ and the recognizance of any surety shall be conditioned accordingly.

Any sureties can be given either to an officer of the Crown Court, a police officer who is either in charge of a police station or of the rank inspector or above, or the governor of the prison where the accused is presently detained.

Question 34

Can the prosecution appeal a bail decision?

Answer 34

Yes, they have a right to appeal:
A. To the crown court against a decision of the magistrates’ court; and
B. To the high court against the Crown Court where it grants bail other than in the context of an appeal against the grant of bail by a magistrates’ court.
This right is limited to cases where:
* The accused is charged or convicted of an offence which is punishable by imprisonment for adults
* The prosecution is conducted by or on behalf of the DPP, or by a specified prosecutor; and
* Before bail was granted, the prosecution made representations that bail should not be granted

Question 35

What is the procedure for a prosecution appeal of a bail decision?

Answer 35

• Must give oral notice at the end of the proceedings in which bail was granted, and before the accused is released from custody. This requirement was held to be satisfied where notice was given to the court officer about five minutes after the court rose but before the accused had been released from custody. The Divisional Court held that a delay of five minutes or so, especially where an accused had not yet been released from custody, did not bring the case into a category in which it could be said that oral notice was not given at the conclusion of the proceedings. Moreover, since notice can properly be given to the court officer, it is not necessary that the justices should themselves be in court.
• Following oral notice, the accused must be remanded until appeal is determined or otherwise disposed of.
• Oral notice must be confirmed in writing, served on the court and accused within two hours after conclusion. Otherwise, the appeal is deemed to be disposed of and the accused released. In R (Jeffrey) v Warwick Crown Court [2002] EWHC 2469 (Admin), the prosecutor served the written notice of appeal three minutes late. The Divisional Court held that Parliament did not intend that the time-limit for serving notice of appeal should defeat an appeal if the prosecution had given itself ample time to serve the notice within the two-hour period, had used due diligence to serve the notice within that period, and the failure to do so was not the fault of the prosecution but was due to circumstances outside its control. Andrews J (at [40]) in R (Cardin) v Birmingham Crown Court described the question to be decided as ‘whether s. 1(7) should be construed so as to deprive the appellate court of jurisdiction to reverse a decision by the magistrates to grant bail if the prosecution could not have served the defendant within the two hours, however hard it tried’

In Hammond v Governor of HM Prison Winchester [2024] EWHC91 (Admin), the two working days expired on 28December 2023, but the appeal was listed in the Crown Court on 2 January 2024. The question for the Court was whether D’s continued detention was lawful given that the hearing of the appeal against bail was not commenced within 48 hours/two days, required by s. 1(8). Constable J concluded that failure to comply strictly with the requirements of s. 1(4) and (5) ‘may not of itself prove fatal to the continuing right on the part of the prosecution to pursue its appeal’, although ‘the scope for flexibility is extremely narrow’ (at [26]). While s. 1(8) is mandatory in nature, the ‘narrow band of flexibility which has been recognised … as applicable to the requirements of ss. 1(4) and (5) is, plainly, equally applicable to the mandatory provision in s.1(8)’ (at [29]). It is for the prosecution ‘to establish that it has acted with due diligence, that the delay is not its fault and that the delay was outside its control’ (at [30]). In this case, the delay in the Crown Court hearing taking place rendered the detention unlawful.

Question 36

What are the powers the court has when an accused fails to comply with bail obligations?

Answer 36

1. Issue an arrest warrant. Cana be done whatever court the accused was bailed to attend to, and irrespective of whether granted at police station or the court. The usual form is not backed for bail (will be arrested and brought to court). However, the warrant may be backed for bail either with or without a requirement for sureties. For a failing to appear, a bench warrant may be issued. A clerk may issue a warrant or arrest for failure to surrender, where there is no objection on behalf of the accused.
2. May adjourn or extend the bail. Equally, the court may order the case stood out of the list and take NFA. Such a course of action is appropriate where there is good reason for non-attendance.
3. Proceed in absence (though it should be borne in mind if the offence is EW, then the mags’ may only try it with consent of the accused and that must be given at a hearing where the accused is present unless satisfied there is a good reason for non-attendance and the accused is represented by a lawyer who consents to summary trial on their behalf).

Question 37

What happens after arrest following grant of conditional bail by the crown court?

Answer 37

Where an accused has been sent for trial to the Crown Court and is subsequently arrested for breach of a bail condition, the jurisdiction to deal with the person under s.7 BA 1976 must be exercised by a magistrate.

If the magistrate finds that there has been no breach, the bail will continue as before. If there has been a breach, bail may be allowed to continue as before, or more stringent conditions may be given, or bail may be revoked, and remand given until the date of trial or further order. Crown court may then grant bail should the accused apply there.

Question 38

What is the procedure for someone brought to the court under s7 BA 1976 (liability to arrest for breaking conditions of bail)?

Answer 38

The question for the magistrate is whether that person is likely to fail to surrender to custody, or else has broken or is likely to break any condition of bail. If of the opinion that any of those matters is established, the magistrate may remand the accused in custody. Alternatively, the mag may grant bail subject to different conditions. In most cases, where bail is granted, more onerous conditions will be given.

The power to remand is subject to the proviso that a magistrate cannot remand if it appears there is no real prospect the person will be sentenced to a custodial sentence in the proceedings. This applies for those who are 18 when released on bail and who have not been convicted in the current proceedings.

Where not of the opinion that the accused is likely to fail to surrender or has/will break a condition of bail, bail MUST be granted on the same conditions as originally.

Question 39

What is the nature of a s7 inquiry?

Answer 39

No need to hear evidence; representations are fine. Hearsay material is fine, so long as the material is properly evaluated.

Gage J (at [16]–[18]) in R (Vickers) v West London Magistrates’ Court held that s. 7(5) requires a two-stage approach.

First, the justice must determine whether there has been a breach of a bail condition (if there has been no breach of a condition, then the accused is entitled to be granted bail on precisely the same conditions as before); secondly, if there has been a breach, the justice is obliged to consider whether or not the bailed person should be granted bail again.

In carrying out the first stage of that process, the justice must act fairly and give the accused a chance to answer the allegation of breach. That does not, however, include an inquiry as to whether the arrested person had any reasonable excuse for breaching bail (since s. 7 makes no mention of such a defence and, indeed, s. 7 does not create a criminal offence).

The second stage (assuming that the justice is satisfied that there has been a breach) is the point at which the reasons for the breach of bail become relevant. At that stage, the justice must consider all the issues relating to ‘reasonable excuse’ when deciding whether or not to grant bail. The breach of bail will be a factor, but only one factor, as to whether the bailed person is granted bail again.

Question 40

Is there a separate offence under s7 of breaking bail conditions?

Answer 40

No, it merely confers a power of arrest.

Question 41

What is the offence of failure to surrender?

Answer 41

The BA 1976 s6 creates the two offences of absconding.

1. A person who has been released on bail and who fails, without reasonable cause, to surrender to custody is guilty of an offence. The burden of showing reasonable cause is on the accused.
2. A person who had reasonable cause nevertheless commits an offence by failing to surrender as soon after the appointed time as is reasonable practicable.

This offence is punishable either on summary conviction or as if it were a contempt of court. They are liable to imprisonment for up to three months/an unlimited fine. A magistrates court who has convicted an offender under s6 may commit to Crown Court if it believes it deserves a punishment greater than it has the power to inflict, or is sending the offender for trial to the Crown Court for another offence and considers the CC should deal with the absconding too.

An offender who is committed to the CC to sentence, or who is dealt with in the CC as if guilty of a criminal contempt, is liable to imprisonment for up to 12 months and/or an unlimited fine.