3. Bail and Remands Flashcards
When can a magistrates adjourn the proceedings?
At any stage before the case is sent to the Crown Court for trial or before or during a summary trial
Is it possible to challenge the grant or refusal of an adjournment?
yes, By way of judicial review
But the monster streets court must not be deterred from a prompt and robust determination of applications to adjourn and the high court will only interfere with the decision if there is compelling reasons to do so the high court will be slow to interfere with the decision.
The decision to fix a date for a trial at which a prosecution expert could attend and the defence expert could not was clearly wrong
The statutory power to adjourn is contained in the magistrate’s Court Act 1980
What may the court do when adjourning? (what do next)
They may fix the time and place at which the trial is to be resumed or unless it remains the accused leave the time and place to be determined later by the court
The court may remand the accused and where the accused has attained the age of 18 shall not do so if the offence is triable either way
What is the maximum. Which are magistrates courts may remand and accused in custody? + what are the exceptions?
8 clear days
exceptions?
- Following summary conviction may remand in custody up to three weeks for inquiries, (pre0sentence report)
- May remand after conviction for medical examination and reports if court believes require more information on the physical or mental condition of the accused
- Where mood of trial is determined in favour of summary but is unable to proceed immediately to trial because it only has one judge they can be remanded in custody to a date to which the courts will be properly constituted even exceeding 8 days
Can he suspect be remanded more than once after an earlier remand
yes, They can be remanded again therefore there may be several remand hearings before the case is sent to the Crown Court or the commencement of a summary trial
The only limitation on the number of romance is the general discretion of the magistrate’s court to refuse an adjournment if it would be against the interests of justice
When can it accuse be remanded for a period greater than 8 clear days?
If the remand is on bail and both the accused and the prosecution agreed to a longer on Remand
What is the time limit between first appearance and committal?
Charged with indictable offence 70 days
What is the time limit between first appearance and summary trial?
Either way + summary trial = 70 unless decsion for summary trial taken within 56 days, if so, reduced to 56 days
Summary offence = 56 days
What is the time limit between committal and trial on indictment?
112 days
What is the case of multiple committals?
If a single document is preferred containing counts in respect of which the accuser is committed for trial on 2 or more occasions the 112 day limit applies separately in relation to each offence
What is a section 51 sending
Where the accused has been sent for trial under the cda 1998 the maximum. 82 days between the date on which the accused is sent to the Crown Court and the start of the trial.
Time held in custody by the magistrates needs to be taken off this total
What happens if the custody time limit expires before the completion of the stage of the proceedings in question?
The accused must be granted bail in relation to the offence which time limit has expired
When can the crown court or magistrates court extend the time limit?
Any time before the expiry of the time limit.
Two stage test
1) That the prosecution has acted with all due diligence and expedition
2) That there is good and sufficient cause for doing so
When should the extension of a custody time limit be addressed?
It should be addressed at the time that a trial date was fixed rather than after the decision as to the listing as it has already been made
Who can the crown court grant bail to?
any person…
- Who has been sent in custody for trial in the crown court
- Who has been given the custodial sentence following conviction in the magistrates and who is appealing to the crown court against conviction / sentence
- Who was in the custody of the crown court pending disposal of the case
- Whose case has been decided by the crown court but who is applied to the courts to state a case for the Divisional Court’s opinion or seeking judicial review of the decision
- To whom the crown court has granted a certificate that the case is fit for appeal to the Court of Appeal.
- Who has been remanded in custody by the magistrate’s court on adjourning of case.
Is there a right to bail?
no, Presumption in favour of bail except for murder.
the presumption applies to…
- person appears before mags or CC for an offence
- who has been convicted of an offence and whose case is adjourned for reports before sentencing.
Does the presumption of bail apply to appeals?
No, An appellant seeking bail pending determination of an appeal against a conviction or a sentence cannot rely on the presumption in favour of bail
Neither can an offender who is committed to the crown court for sentence following a conviction in the magistrate’s court
In these two situations, there is the power to grant bail, but this is at the discretion of the court.
What happens if a person has been on bail and pleads guilty at he plead before venue hearing
The usual practise should be to continue bail even if it is anticipated that a custodial sentence will be imposed by the Crown Court unless there are good reasons for the remanding the accused in custody
When can the court not grant bail to an accused?
To an accused who is charged with murder attempted murder manslaughter rape or attempted rape.
Or an accused who has been convicted of those above offences
Unless the court believes that they’re exceptional circumstances which justify it they may not grant bail.
What about a person who is accused of murder
They may not be granted bail unless the quarters of the opinion that there is no significant risk that the accused will if he is released on bail commit an offence that would or would likely to cause physical mental injury to any other person
The presumption in favour of bail is effectively reversed.
What are the conditions for refusing bail?
Where the core believes that there are substantial grounds for believing that the defendant if he is released on bail would-
a) Failed to surrender to custody
b) Commits an offence while on bail.
c) Interfere with witnesses or otherwise obstruct the course of justice.
The courts must merely be satisfied that there are substantial grounds for believing they don’t need any higher justification
Do the prosecution need to produce witnesses when objecting to bail
No, the cps representative needs to argue that bail is inappropriate on the basis of the information supplied by the police and included in the case file
One can bail not be withheld on any of the grounds
where the accused has attained the age of eighteen and has not been convicted of an offence in those proceedings and it appears to the court that there is no real prospect of the accused will be sentenced to a custodial sentence in the proceedings bale cannot be withheld
are there other factors for the court to consider bailed to a defendant
The nature and seriousness of the offence
The character and community ties of the accused
The accused records for having answered to bail in the past
The strength of the evidence against the accused
The accused may engage in conduct likely to cause physical or mental injury to anyone else
Domestic violence risk to an associated person
Accused already on bail
For their own protection
Already in custody
Insufficient time
Absconded in the present proceedings
Bale involving abuse of drugs
Is the nature and gravity of the offence an automatic reason for refusing bail
No,
What does character and antecedents ties primarily refer to?
previous convictions
These may make a custodial sentence more likely especially if the accused is convicted of the present offence which will be in breach of a suspended sentence of imprisonment
A person of good character is likely to be trusted by the courts over someone who has a criminal record
What does associations and community ties mean
This refers to undesirable friends with criminal records
This involves looking at how easy would be to abscond and how much the accused has to lose by absconding
What does strength of the prosecution’s evidence mean
This is relevant to whether an accused would answer bail in the sense that one who knows that there is a good chance of being acquitted is less likely to abscond than 1 who anticipates almost certain conviction
It can be argued that there is no point in the accused absconding if an acquittal is likely anyway
What does risk of injury to someone else mean
what does domestic violence risk to an associated person mean
The accused need not be granted bail if the court is satisfied that if released on bail the accused would commit an offence while on bail by engaging in conduct which would cause a likely cause physical or mental injury to an associated person
An associated person is a person who is associated with the accused within the meaning of the family law act. This could be partners spouses civil partners cohabitants former cohabitants dependents relatives such as parents
What is meant by an accused who is already on bail
The accused does not need to be granted bail if it appears to the court that the accused was on bail in respect of another offence on the date in which the current offence took place
What is meant by their own protection
The accused need not be granted bail if the court is satisfied that remaining in custody would be for the accusers own protection
This will cover gang cases
The bail when the accused is already in custody
The accused does not need to be granted bail if they are already serving a custodial sentence
Grunting bail to someone who is absconded in the present proceedings
The accused need not be granted bail having previously been released on bail in connection with the current proceedings
If they have been arrested for an offence under the Bail Act 1976
Bail in cases involving abuse of drugs
And accused over the age of 18 may not be granted bail unless the quarters of the opinion that there is no significant risk of the accused committing an offence while on bail where the three conditions set out:
1) There is a drugs test evidence that there is a specified class a drug in the person’s body
2) Either the accused is charged with a fence under the mda or 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 all that the offence is motivated wholly or partly by intended misuse of a specified Class A drug
3) The person does not agree to undergo an assessment of dependency upon or a propensity to misuse any specified class a drug or has undergone such an assessment but does not agree to participate in any relevant follow up which has been offered
One should conditions for bail be imposed
Only imposed if they are necessary to address one of the grounds for withholding bail
What are the conditions that can be imposed on bail
residence
Obligation to notify any changes of address
Reporting on given days to a police station
A curfew often tagged
Exclusion from a place or area
Requirements not to contact this specific person
Surrender passport
Surety named person will lose money if the accused fails to attend court
Security payments of a sum into court that will be lost if the accused fails to attend
The court can impose other conditions which they see fit in order to limit the potential for one of the grounds to occur
Who can make an application to vary bail
The defence or the prosecution
How is an application to vary bail made
Should be by way of written application served two business days in advance
In practise they are often made on the next remand date without prior application however if you are defending you always make sure that the prosecutor is warned prior to the hearing
The application should be made to the court that granted bail or to the crown court if the defendant has been sent
If it is agreed by the parties the variation can be determined without a hearing
Any hearing should take place no later than 5 business days after the application was served
If the magistrates refused they must give reasons that are legally adequate
Does the defendant need to be present for a decision on bail?
Decision should not normally be made without the defendants being present either in person or via the live link or he has had the opportunity to make representations
Bail may be considered in the absence of a defendant if they have waived the right to attend, Or if they have been present previously when bail was refused and have been in custody since
Who begins at a bail hearing
The prosecution will begin by outlining any objections and setting out the grounds and reasons for why they believe a refusal should be sought
The defence will then have an opportunity to argue that bail should be granted and the prosecution will not usually make any submissions in response but there is a right to do so to correct any factual errors
How many applications for bail can a defendant make?
Mags - 2 - should be made at first and second hearings
if fail to apply for one at first hearing, then D will only have one other oppertunity to make an application.
Apply for bail to a crown court judge
At any time when application can be made to a crown court judge
A defendant will need a full argument certificate from the magistrates with a written notice of appeal
The written notice must be given to the magistrate’s court and the Crown Court and the prosecutor as soon as reasonably practicable and must explain why Bale should be granted
If the application is opposed the prosecution must serve notice and reasons for doing so
The application should be heard the next business day.
How many applications can you make to the Crown Court for bail
Once, another cannot be made without putting fresh arguments before the court
Can the prosecution appeal any grant of bail made by the magistrate’s court?
Yes, In respect of imprisonable offences.
Oral notice should be given that the conclusion of the hearing and then written notice within two hours of the oral notice.
Following oral notice the defendant will be remanded in custody until the appeal is determined there is then a re hearing before the Crown Court within 48 hours
What happens if a defendant has breached a bail condition
Put the defendant at risk of being arrested and brought before the magistrate court.
The police may arrest without a warrant if they have reasonable grounds for believing that the defendant is not likely to surrender to custody has breached or is likely to breach a bail condition.
After a breach of condition when must the defendant be brought to a magistrates court?
within 24hrs of the arrest.
Is breaching bail an offence?
No, The only penalties to remand in custody but this does not automatically follow.
If the defendant has been sentenced to the Crown Court and has breached a bail condition which court will deal with the breach?
Always the Mags
