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Criminal Litigation > 3) Bail & Remands > Flashcards

3) Bail & Remands Flashcards

1
Q

When can mags adjourn?

A

Mags can adjourn before sending to CC. or at any time during summary trial

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2
Q

1) How do you challenge decisions on adjournments?

2) What are the chances of sucess?

3) Give two examples of successful challenges?

A

1) Possible to challenge via Judicial Review

2) Divisional Court will be unlikely to intervene (R v Uxbirdge Magistrates)

  • This is because it is a discretional power (DPP v Petrie)

3) Appeal of refusal to adjourn successful where:

  1. Mags refused to adjourn when Sol. Nor D. could attend due to bad weather (Paris-Jones v CPS)
  2. D. expert witness could not attend (R (Parashar) v Sunderland Magistrates)
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3
Q

What are the statutory powers to adjourn:

  1. until conviction; and
  2. B4 mode of trial has been determined?
A

1) Until conviction - s.10

  1. Can adjourn at any time
  2. Can leave the place and time to be decided later
  3. On adjourning an trial of info. court and accused has previously been remanded in the course of proceedings:
  • May remand D
  • Shall remand D. if triable either way and 18+

2) B4 mode of trial has been determined - s.18

Mags can adjourn and shall remand D. where:

  1. At first appearance he was in custody; or
  2. He was remanded at any time in course of proceedings
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4
Q

What are the two ways of remanding D on adjournment?

A

remand in custody or remand on bail s.128(1) MCA 1980

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5
Q

What happens if D does not turn up to court if not on bail?

A

not a criminal offence but arrest warrant may be issues , or trial could be conducted in absence of D.

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6
Q

What happens if D does not turn up to court if on bail?

A

Not appearing on adjourned date is an offence under BA 1976

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7
Q

What is the maximum period D can be remanded in custody?

A
  • Maximum period that mags can remand D in custody is ‘8 clear days’ s.128(6) MCA 1980
  • There are exemptions, but not examinable
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8
Q

Can D be remanded multiple times?

A
  • Someone can be remanded multiple times s.128(6) MCA 1980
  • May not be in the interest of justice to keep doing so though
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9
Q

How long can D be remanded on bail?

A

Can be longer than 8 days if both P. & D. agree.

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10
Q

What is the overall custody time limit?

A

There isn’t one yet.

At the moment all TL are in between certain stages of procedure

  • We don’t need to know these
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11
Q

What is the effect of expiry of Custody TL?

A

For the 112 days between committal and indictment - release on bail reg. 6(6)

For the 70 days between 1st appearance and committal - not clear

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12
Q

Where should a TL extension be sought?

When will this be granted?

Can a TL be extended twice?

A
  • Extension should be sought when trial date is originally being set (Campbell-Brown v Central Criminal Court)
  • CC or Mags can extend limit if: s.22(3) PoOA 1985
    1. P. Acted with all due diligence and expedition; and
    2. That there is a good and sufficient cause
  • An already extended TL can be further extended s.22(3)
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13
Q

1) When can Mags grant bail?
2) When can’t mags grant bail?
3) When must mags remand (can remand on bail)?

A

1) Mags can grant bail for reports, medical examination, s.51 sending, committals for sentencing, and for appeal.
2) Bail for person charged with murder must be by CC. s.115 CAJA 2009
3) When adjourning as case where proceedings were commenced by a charge at police station, Mags must remand ss.5(1), 10(1) & 19(4) MCA 1980

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14
Q

When can CC grant bail?

  • 7 points
A

Under s.81(a) to (g) SCA 1981, CC may grant bail to any person:

  1. Who has been sent in custody for trial at CC
  2. Who has been given custodial sentence by Mag. and appealing to CC.
  3. Who’s case has been adjourned by CC
  4. Applied to the court to state the case for the HC’s opinion.
  5. Applied to HC for judicial review
  6. To whom CC. has granted appeal to CoA
  7. Who has been remanded in custody by Mags.
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15
Q

Who can grant bail for murder?

What is the TL for making decision?

A

CC only

48 hours, excl weekends

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16
Q

When does the presumption in favor of bail apply?

  • 3 points

When is there not presumption in favor of bail?

  • 4 points
A

There is a rebuttable presumption in favor of bail for persons: s4(1) BA

  1. Who appears before CC or Mags for an offence.4(2)
  2. Who has been convicted and case is adjourned s.4(4)
  3. Who is b4 court for alleged breach of community order s.4(3)

No presumption in favor of:

  1. Seeking bail pending appeal
  2. Committed to CC for sentence
  3. Murder or rape with previous of murder and rape
  4. Applying for bail from police station
  • Custody officer has a duty to grant bail unless justified s. 38(1) PACE 1984
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17
Q

Can bail be granted for murder or rape with previous of murder and rape?

What (apart from obvious) counts as previous

  • 2 point
A

Yes but only in exceptional circumstances

  • Book phrased this as ‘no, only in exceptional crics’

Also counted as previous convictions:

  1. This included NG verdict by reason of insanity
  2. Includes conviction in EU states.
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18
Q

Should bail be consider after GP at PB4V when there will be a custodial sentence?

A

Bail should generally be continued after GP, even if there will be a custodial sentence (Rafferty)

  • Unless there are good reasons not to
19
Q

Re. Imprisonable indictable offences

What is the main reasons for refusing bail?

  • 3 point

What are the other reasons?

  • 7 points
A

1. Main reasons = Risk of Absconding, Further Offences or Interference with Witnesses

2. Other reasons

  1. Risk to ‘associated person’ (Domestic Violence)
  2. Own protection
  3. Already in custody
  4. Insufficient time/info
  5. Absconded in Present Proceedings
    • Unless 18+ and no real chance of custodial sentence
  6. Bail in Cases Involving Abuse of drugs
  7. Murder - prsumtion in favour reversed
20
Q

When can bail be refused because of drugs?

  • 4 point

Exception?

A

When:

  1. 18+
  2. Class A drugs in D’s system; and
  3. Offence relates to Class A drug; and
  4. D does not agree to dependency assessment.

Unless no significant risk of D committing offence

21
Q

When considering refusal of bail due to risk of Absconding, Further Offences or Interference with Witnesses. (Only applies for imprisonable indictable offences)

1) What is the test?

2) What are the relevant factors to consider?

3) Is the list above exhaustive?

A

1) Test

  • D. need not be granted bail where there are substantial grounds to believe that if D were released on bail, they would:
    1. fail to surrender
    2. Comment a further offence
    3. Interfere with W/ interest s of justice

2) Relevant factors

  1. ​Nature/ seriousness of offence
    • ​​Not enough alone to deny bail
  2. ​Character and antecedants
  3. Association (bad association, more likely to commit offence)
  4. Community ties
  5. Strength of P’s evidence (stronger case, more likely to abscond)
  6. Risk of mental or pysical injury to someone else

3) Above list not exhaustive

22
Q

What are the reasons to allowed to deny bail for imprisonable summary offences?

  • 9 points
A
  1. Failed to surrender in past
  2. Belief D. would commit an offence whilst on bail
    • Need substantial grounds to believe
  3. Cause physical or mental injury to an ‘associated person’ (domestic abuse)
  4. For own protection
  5. For own welfare if under 18
  6. If D. is already serving a custodial sentence
  7. Where D. is arrested for breaking bail under s.7BA - Para. 7
    • Need to also be satisfied there are substantial ground that D will: Fail to surrender, Commit offence whilst on bail, or Interfere with witnesses
  8. No sufficient time to gather info
  9. Where Para 6A to 6C - Bail in Cases Involving Abuse would apply is the case were indictable
23
Q

In cases of Imprisonable Summary Offences, how does the fact that there is no realistic prospect of conviction effect the reasons to deny bail?

A

The following are no longer valid reasons to deny bail:

  1. Failed to surrender in past
  2. Belief D. would commit an offence whilst on bail
  3. Where D. is arrested for breaking bail under
24
Q

What are the valid grounds for withhold bail for non-imprisonable offences?

  • 5 points
A
  1. Previous failure to surrender
    • Court needs to believe in view of previous failure, he would fail to attend again
  2. Should be kept in custody for own protection
  3. Where D. is already serving a custodial sentence
  4. Arrested for breach of bail under s.7BA
    • court believes this means they will not attend
  5. Arrested under s.7 BA & may cause injury to associated person (Domestic abuse)
25
Q

Does unconditional bail have any conditions?

A

Yes - D. is under a duty to surrender to custody under s.3(1)

26
Q

When can bail conditions be imposed?

  • 7 points
A

When court deems them necessary:

To ensure D:

  1. Surrenders to custody
  2. Does no commit an offence on bail
  3. Does not interfere with witness or otherwise obstruct the course of justice
  4. Is available for the making of inquiries or a report to assist in sentencing
  5. Attends an interview
  6. For D’s own protection
    * If child, for D’s welfare/ interest
27
Q

What are some common bail conditions?

  • 10 points
A
  1. The accused is to live and sleep at a specified address
  2. To notify any changes of address to the police
  3. Reporting to local police station
  4. Surender passport
  5. Electronic monitoring
  6. Sureties (less used in Uk)
  7. Deposit of Security
  8. A curfew
  9. Can’t enter a certain area/ building/ go within a specified distance of a certain address
  10. Cannot contact the victim
28
Q

Applications to vary conditions of bail

Who can apply to vary bail conditions?

What is the procedure?

What must be included in app?

Does there need to be a hearing?

TL for hearing after app?

A

Who can vary?

  • Accused under s.3(8)(a)
  • Prosecution under s.3(8)(b)

Party must:

  • Serve court and other party no less than 2 business days b4 hearing
  • Must give reasons why app. is sought

Court may determine app. without a hearing when both parties agree

If there is a hearing, must be within 5 business days s.14.7(6)(b)

29
Q

What can happen if D breaches bail conditions?

A

Can be arrested without warrant under s.7(3) BA 1976

30
Q

What is the TL for hearing for 2nd bail app after failure of first?

What arguments can be made to the court on 2nd application?

A

Next hearing must be within 8 clear days

  • Unless D consents to remand - then 28 days

Can make a 2nd fully argued bail app, repeating same arguments

31
Q

If 2nd bail app fail, what arguments can be made at 3rd and subsequent?

What is the TL for next hearing?

A

Cannot submit arguments on same fact or law

  • Unless material change of circs.

Max 28 days until nest hearing

32
Q

How to you appeal Mags bail decision?

A

Written notice to appeals mags must be given to…

  1. Mags,
  2. CC,
  3. P or D
  4. Surety effected or proposed

… ASARP after decision of Mags

33
Q

Who should bail appeal notice be given to?

What must he notice contain?

A

Should be given to:

  1. Mags,
  2. CC,
  3. P / D
  4. Surety effected or proposed

Should contain:

  1. Explain why bail should be withheld/ condition altered
  2. ID any new info/ legal argument that has arisen since Mags decision
  3. Attach ‘Certificate of full argument’ issued by Mags under
34
Q

What is a certificate of full argument?

A

Mags must issue a certificate, and give D a copy, saying that they heard a full argument on a bail app. before refusing it where:

  1. They adjourn the case and remand D in custody
  2. There has been a fully argued bail app
35
Q

How are bail apps in CC the same and differ?

Are they public or private?

A

Follows same pattern as Mags (as in order people speak)

Repeated apps are not allowed unless fresh arguments/ considerations

Can be public or private - usually private

36
Q

Can P appeal Mags granting of bail?

Can P appeal CC granting of bail?

When can P appeal?

What is the procedure?

When must the appeal be heard?

A

Mags - Yes

CC - Yes, but not when they are deciding P’s bail appeal from Mags

When can P appeal?

  • Can only appeal when offence is punishable by imprisonment.

Procedure?

  1. Give oral notice at end of hearing
    • Delay of 5 mins ok
  2. Confirm in writing within 2 hours
    • 5 mins delay ok if not P’s fault and they gave themselves ample time

Appeal must be heard - within 48 hours

37
Q

If D fails to appear, what can court do?

  • 3 points
A
  1. Issue arrest warrant under s.7(1) BA 1976
  2. Adjourn and extend bail
    • Only appropriate whether there is good reason for the accused non-attendance
  3. May be possible to proceed in absence of D
  • Condition in another question
38
Q

When may court continue in D’s absence?

How does type of offence change this

A

1) If D is in breach of bail condition to attend

2) Different offence

Summary - any time

Triable either way - Mags can only commence with D’s consent.

  • Assuming CC does not need consent?
39
Q

Is failure to surrender an offence?

A

Only if:

  1. Was on bail
  2. Failed to attend without reasonable cause

N.B. there is a different power just to issue warrant for arrest which doesn’t create an offence

40
Q

What is the punishment for failure to attend?

What is the procedure for appeal?

  • 2 points

Can you appeal decision?

A

N.B. Must first be an offence, this is detailed in different question

Punishment

  1. On summary conviction
  2. As if contempt of court
    • Mags can send to CC if insufficient sentencing powers
    • Max CC can sentence is 1 year & unlimited fine

Procedure

  1. Should be brought b4 court where bail was granted
  2. Court generally initiates proceedings

Appel

  • If bench finds no charge, cannot appeal
41
Q

When can someone be arrested for breach of bail conditions?

  • two points
A

When can someone be arrested?

  1. D has, or is likely to, break bail conditions
    • This includes unlikely to surrender to custody
  2. Surety gives written notice D is unlikely to surrender and wants to be relived of obligations
42
Q

What is the TL for being brought in front of a court after arrest for breach of bail conditions?

A

Must be brought before single justice within 24 hours excluding Sundays

  • Strict TL, if justice has not heard and decided matter within time, custody become unlawful
  • If arrested within 24 hours from hearing, use same hearing
43
Q

1) What is the question for the court when D brought in front of them for breach of bail conditions?
2) What is the nature of the submission?
3) What’s the strange rule regarding evidence?
4) What are the options for punishment?

A

1) Question for court

  1. ‘Is D likely to fail to surrender to custody?’; or
  2. ‘Has D broken, or are they likely, to break any bail conditions?’

2) Nature - Can rely on representations, no need for evidence

3) Strange rule - hearsay allowed (if properly evaluated)

4) Punishments:

  1. May grant bail subject to different conditions
  2. Remand in custody
    • Cannot do this if ‘no real prospect of custodial sentence
44
Q

What are s.7 & s. 6 of BA?

A
  • s.6 creates an offence for failure to attend
  • s.7 coffers power of arrest for breach (no offence)

Criminal Litigation (4 decks)

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