3 - Pre-Trial Flashcards
What is adjournment?
Where the defendant is presented to court, and the court cannot conclude the case in one hearing, the case will have to be adjourned. This word describes what happens to the case.
What is remand?
When a defendant is sent away and told to come back another day.
A defendant on remand is obliged to come back to court to continue with the case. The remand may either be served in custody, or served in the community on bail.
Who applies for remand into custody?
The prosecution applies to have the defendant remanded into custody.
This is necessary because there is a presumption in favour of bail under the Bail Act 1976, meaning the prosecution must present valid objections to justify custody.
What are the objections to being remanded and why the variety of objections?
Objections are clearly defined by law and depend on the seriousness of the offence.
For serious offences (e.g., indictable offences), there are broader objections, while for trivial offences, there are fewer and more qualified objections.
The variety prevents defendants charged with minor offences from being held in custody longer than they would serve if convicted.
Who applies for bail and when, what is conditional bail and the ongoing issue of bail?
The defence applies for bail once the prosecution has raised an objection.
In murder cases, only a Crown Court Judge can grant bail.
Conditional bail allows bail to be granted with specific conditions to address concerns about the defendant’s behaviour (e.g., curfews, reporting to police).
Bail is an ongoing issue, and can be revisited if the defendant breaches bail conditions (e.g., a breach of bail conditions, new evidence).
What is the right to bail?
Under the Bail Act 1976, there is a presumption in favour of bail unless there are valid reasons to refuse it.
The prosecution must apply for remand in custody by presenting legal objections, such as risk of absconding, committing further offences, or interfering with witnesses.
The right to bail applies even after conviction if the case is adjourned for reports before sentencing, though concerns about the defendant’s potential to abscond may be stronger at this stage.
When does the right to bail not apply?
The right to bail does not apply where:
- Defendants who are appealing their conviction or sentence.
- Defendants committed for sentence from the Magistrates’ Court to the Crown Court.
In these situations, the presumption in favour of bail is removed because the defendant has already been found guilty or is facing a likely custodial sentence.
What are the grounds on which the prosecution can object to bail?
Depend on the seriousness of the offence:
- For indictable offences, objections can include risk of failure to surrender, risk of committing further offences, or risk of interference with witnesses.
- For summary offences, the objections are more limited but can still include failure to surrender or breach of bail conditions.
The court will consider whether these risks are realistic and if conditions of bail can mitigate them.
How many grounds of objection can the prosecution take?
- The prosecution can raise as many grounds of objection as are relevant to the case.
- It only needs to succeed on one ground for the court to refuse bail.
- If the objections can be mitigated (e.g., through bail conditions), the court may grant conditional bail instead of custody.
What are the main (big three) objections to bail for indictable offences?
There are three primary grounds for objecting bail for the large amount of offences that classify as ‘indictable’.
The test is if the defendant is released on bail, there are substantial grounds for believing that the defendant would either:
- The defendant might fail to attend court in the future.
- The defendant might commit further offences while on bail.
- The defendant might interfere with witnesses or attempt to obstruct justice.
These objections must be supported by evidence or strong reasoning to convince the court that the risks are substantial.
What are ‘substantial grounds for believing’ when objecting to bail for indictable offences?
- The prosecution must demonstrate substantial grounds for believing that the defendant will engage in the objectionable behaviour (e.g., absconding, reoffending).
- This means the concerns must have a reasonable basis beyond mere suspicion, but the standard of proof is not as high as in a trial.
- The court will assess whether the concerns are credible, based on the defendant’s past behaviour, the nature of the charges, and any relevant evidence.
What is the ‘no real prospects’ rule for bail in indictable offences?
- This rule bail from being refused if there are no real prospects of the defendant receiving a custodial sentence.
- Ensures that defendants charged with less serious offences (even indictable ones) are not kept in custody unnecessarily.
For example, a defendant charged with a non-violent theft who is unlikely to receive a prison sentence should not be refused bail based on concerns of future offending.
How does bail work for summary offences?
For summary offences, objections to bail are more limited and typically apply only if the defendant has:
- Breached bail conditions or failed to surrender in the past.
- Previous convictions for similar behaviour, indicating a risk of repeating such conduct.
Summary offences are generally less serious, so the presumption in favour of bail is stronger unless there are clear reasons to withhold it.
What are the other grounds under which a defendant need not be granted bail?
After the main three grounds, the next important grounds are:
- Own protection: A remand in custody is for the defendant’s own safety.
- Insufficient information: The court lacks sufficient information to make a bail decision and requires a short remand for evidence.
- Already serving a sentence: The defendant is currently serving a sentence in custody.
The test is that the defendant ‘need not’ be granted bail if any of these conditions exist.
What are the specialist grounds for objecting to bail?
Specialist grounds are categorised under:
- Serious cases with high penalties: Such as murder and rape, where it’s harder to obtain bail.
- Particular nature cases: Offences affecting the risk assessment of a defendant, especially those that may cause physical or mental injury to an associated person, frequently in domestic violence situations.
Four groups of offences
Serious cases: Includes crimes like murder or rape where the gravity of the offence makes bail harder to obtain.
Cases with specific characteristics: Drug-related or domestic violence cases may require special consideration due to the likelihood of reoffending.
Bail infringement cases: Where the defendant has previously breached bail, stricter measures apply.
Other cases: Classified offences where standard bail provisions apply, but with additional considerations based on the case.
What is the process for handling bail objections?
- Determine if the case falls into a special category (serious crime or crimes of particular character).
- For serious crimes like murder, stricter tests apply, and general objections are irrelevant.
- For particular character cases (e.g., domestic violence), the prosecution may use either the additional grounds or the general grounds.
What factors need to be taken into account when determining whether to object bail.
- Nature and seriousness of the offence: More serious offences suggest a higher risk of absconding.
- Character, antecedents, and community ties: Previous convictions, associations, and the defendant’s ties to the community affect the risk of absconding.
- Bail record: Previous absconding or offending on bail can suggest a likelihood of repeating the behavior.
- Strength of evidence: Strong evidence against the defendant reduces the likelihood of absconding.
Can you provide examples of how factors influence bail decisions?
If the offence is serious and the evidence strong, the risk of failing to surrender increases.
If the defendant has strong community ties (family, job), it may reduce the risk of absconding.
Previous offences involving drugs may increase the risk of committing further offences on bail.
How do grounds and factors interact in bail decisions?
- Grounds: The legal reasons for denying bail (e.g., fail to surrender, commit further offences).
- Factors: The circumstances that support the grounds (e.g., seriousness of the offence, strength of evidence).
Bail should not be denied solely on a factor (e.g., seriousness of the offence), but on whether it justifies a legitimate ground (e.g., likely to commit further offences).
When does the presumption in favour of bail apply?
On conviction whilst reports are prepared pending sentence.
What is the purpose of bail conditions and how does the ECHR apply?
The purpose of bail conditions is to manage risks such as:
- Ensuring the defendant surrenders to custody.
- Preventing reoffending.
- Reducing the risk of interference with witnesses or obstruction of justice.
The European Convention on Human Rights (ECHR), Article 5(3) guarantees the right to be brought promptly before a judge, and to a trial within a reasonable time or release pending trial.
- Article 5(3) allows for conditions on bail if they ensure the defendant’s appearance at trial.
- Conditions must be relevant, proportionate, and enforceable.
What are the common bail conditions?
Residence at a specified address: Ensures the defendant can be located and reduces the risk of absconding.
Curfew: Restricts movement during specific hours, often related to the time of offending (e.g., night-time burglaries).
Reporting to a police station: Regular check-ins to verify the defendant remains in the area.
Surety: A third party pledges money to ensure the defendant appears in court.
Security: Money or property pledged by the defendant or a third party, forfeited if the defendant absconds.
Restrictions on movement: Prevents the defendant from entering specific areas or places.
Restrictions on contact: Prevents the defendant from approaching or contacting certain individuals.
Electronic tagging: Monitors compliance with curfews or geographical restrictions.
Bail hostel: A supervised residence for defendants without a fixed address.
Surrender of passport: Prevents the defendant from leaving the country.
The court can impose ‘such conditions as appear necessary’ meaning technically that there is no limit to the conditions that a court could choose to impose.
Before attaching a condition of bail the court must consider if the condition is relevant, proportionate and enforceable.
How are applications to vary bail conditions made?
- Applications can be made by either the defence or the prosecution.
- Advance notice must be given to the other party.
- The application is made to the court that granted bail (or the Crown Court if the case is sent for trial).
- If both parties agree on the variation, the court may change conditions without a hearing.
What are the consequences of breaching bail conditions?
Breach of conditions can result in arrest under the Bail Act 1976, s 7(3).
The defendant may face:
- Tightened bail conditions.
- Remand in custody (bail revoked).
Breaching a bail condition is not a criminal offence, but it may lead to stricter bail conditions or loss of bail.
Arrest powers: Officers can arrest if a breach is imminent or has occurred.
The defendant must be brought to a magistrates’ court to reassess bail conditions.
What happens if a defendant fails to surrender to custody?
Failing to surrender without reasonable cause is a criminal offence.
- Punishable by up to 3 months’ imprisonment and/or an unlimited fine if summarily convicted, or 12 months and/or an unlimited fine if convicted on indictment.
New grounds for bail objection: Breach of bail, such as FTS, can introduce additional grounds to object to future bail applications.
The defendant may face being remanded in custody until trial
What is the procedure for applying for bail?
- If refused bail by the police, the defendant (D) is brought before the magistrates’ court.
- The prosecutor will either state there is no objection to bail or outline the grounds for objection.
- The defence advocate presents arguments for granting bail.
- The court decides and, if bail is refused or conditions are imposed, must provide reasons under s.4 Bail Act 1976.
- A decision form is completed outlining the bail outcome.
How many attempts can a defendant make to apply for bail?
- In the magistrates’ court, a defendant typically has two attempts at applying for bail.
- After two attempts, an appeal can be made to the Crown Court.
- In the Crown Court, the defendant gets one further opportunity to apply for bail.
If bail is refused in both courts, the defendant can apply again only if there is a material change in circumstances.
