7) Bail Flashcards
Different types of remands
1) Remand in custody
2) Remand on bail with conditions attached to bail
3) A remand on unconditional bail
Remands in custody - Bail rule - Time limit
A defendant may not be remanded in custody for more than 8 clear days at a time
Remands in custody - Exceptions - Time limit
Court may remand a defendant in custody for up to 28 days if the court has previously remanded them in custody for the same offence, the defendant if before the court and the court can set a date to remand them to on which it expects the next stage of proceedings to take place
Remands in custody - Maximum Time limit
In the magistrates court this is 70 days for an either-way offence and 56 days for a summary only offence. As soon as the time limit expires they must release them on bail
The Right to Bail - General rule
Court starts with the presumption that the defendant has a right to bail without conditions unless grounds exist for imposing bail conditions or for remanding them in custody
The Right to Bail - When the presumption does not apply
This presumption does not apply to defendants:
1) Who have been committed to the Crown Court for sentence
2) Who are appealing against conviction or sentence
3) If they have been charged or if they’ve been previously convicted of the most serious types of crime e.g murder, manslaughter, attempted murder
Grounds for refusing bail (What the prosecution will argue)
The court MUST bail the defendant UNLESS there are SUBSTANTIAL grounds for believing one of the conditions below are made out:
1) Fail to surrender to custody
2) Commit an offence while on bail
3) Interfere with witnesses or otherwise obstruct the course of justice
Factors considered by the court when deciding if the grounds are satisfied
1) Nature and seriousness of the offence and the probable sentence the defendant will receive for it
2) The character, antecedents, associations and community ties of the defendant
3) The defendant’s record in respect of previous grants of bail
4) The strength of the evidence against the defendant
Factors considered by the court when deciding if the grounds are satisfied - Nature and seriousness of the offence and strength of evidence against the defendant
Probable sentence defendant will receive. If the defendant has been charged with a serious offence that is likely to result in a prison sentence if they are convicted and the evidence against the defendant is strong, the CPS may argue that the defendant will fail to surrender to custody (usually referred to as absconding) to avoid being sent to prison
Factors considered by the court when deciding if the grounds are satisfied - Defendant’s character
Reference to previous convictions. Used to argue that there are substantial grounds for believing that the defendant will commit further offences if they are released. Relevant if they have a history of committing similar type crimes or if they’ve previously committed offences whilst on bail.
Factors considered by the court when deciding if the grounds are satisfied - Defendant’s associations
if they associate with known criminals
Factors considered by the court when deciding if the grounds are satisfied - Defendant’s community ties
If the defendant is unemployed, has no relatives in the local area, has lived in the area only for a short time or is of no fixed abode, the CPS may argue that there is nothing to keep them in the area and nothing to prevent them from absconding.
Factors considered by the court when deciding if the grounds are satisfied - Defendant’s record in relation to previous grants of bail
If a defendant has previous convictions the CPS is likely to raise this to suggest that there are substantial grounds for believing that the defendant will fail to surrender if they are granted bail in the current proceedings.
Grounds for refusing bail for summary- only offences
1) Failure to surrender
2) Commission of further offences
3) Fear of commission of offences likely to cause another person to suffer or fear physical/mental injury
4) Defendant’s own protection
5) Defendant serving custody
Conditional bail (defence arguments)
A court has the power to grant bail to a defendant subject to the defendant complying with one or more conditions
Condition to prevent absconding - Sureties
A person who gives money to the court and is under an obligation to use every reasonable effort to ensure the defendant attends court and if they don’t they lose their money
Condition to prevent absconding - Security
Defendant pays money to court and if they fail to turn up they lose the money
Condition to prevent absconding and committing offences - Reporting to a police station
Court orders the defendant to report to their local police station on a regular basis so the police ensure that the defendant remains in the local area
Condition to prevent absconding and committing offences - Residence
Require the defendant to reside at a specified address
Condition to prevent committing offences - Curfew
Require a defendant to remain at their place of residence between specified hours
Condition to prevent committing offences and interfering with a witness - non-communication with prosecution witnesses
Covers direct face to face and indirect communication
Condition to prevent committing offences and interfering with a witness - Restriction on entering specified areas
Prevents them from entering a geographical area or town
Condition - Attending appointments with solicitor
Requires defendant to keep in regular touch with solicitor
When must the court keep a defendant in custody
Only if they cannot place conditions on the defendant which would assuage their fears. This provides scope for a defendant’s advocate to be creative when suggesting conditions
What if the defendant is on bail for another offence when they are arrested?
The presumptive right of bail disappears
Procedure for applying for bail
If the CPS objects to bail:
1) CPS will provide defendant’s solicitor and the court with all info which is material to what the court must decide
2) CPS will state objections
3) Defendant’s solicitor will make application for bail
4) Magistrates may hear evidence from other persons
5) Magistrates will make decision
Further applications for bail
A defendant who is refused bail is entitled to have their advocate make one further full bail application in the magistrates’ court, but if this is refused, the advocate may make a
further bail application only if they are able to raise a new legal or factual argument as to
why bail should be granted
Appeals by the defendant
A defendant who is refused bail by the magistrates’ court may appeal against this decision to the Crown Court
Appeals by the defendant - How
Must complete notice of application which must be sent to Crown court and magistrates and CPS. It must specify the decision the defendant wants the CC to make and each offence the defendant has been charged with. Explain why the CC should grant bail and any suggested conditions
Appeals by the prosecution - If the defendant has been granted bail
Oral notice must be given by prosecutor at the end of the hearing and before defendant is released. Notice must be confirmed in writing and served on defendant no more than 2 hours after.
Failing to surrender
Magistrates will issue a warrant for their arrest. If the defendant does not have a reasonable excuse for absconding, the court may either
sentence him immediately or adjourn sentence until the conclusion of the substantive proceedings.
Breaching a condition
They don’t commit a criminal offence but they will be arrested and detained in police custody and must be brought before the magistrates within 24 hours. They magistrates will likely review their bail and decide whether to remand in custody or whether to grant bail with or without conditions
