Bail Flashcards
Power to Adjourn
- At any stage before the case is sent to the Crown Court for trial or before (or during) a summary trial, a magistrates’ court may adjourn the proceedings
is it possible to challenge the grant or refusal of an adjournment?
YES
by way of judicial review
Court’s usual position when interfering with a decision to refuse an adjournment
the Divisional Court will be ‘particularly slow’ to interfere with a decision to refuse an adjournment, given the discretionary nature of that decision
o Gross LJ said (at [21]) that the grant or refusal of an adjournment ‘is a paradigm example of a discretionary case management decision where an appeal ought only to succeed on well-recognised but limited grounds (for example, error of principle, error of law or where the decision can properly be characterised as plainly wrong)’.
- Pari-Jones v CPS [2018] EWHC 3482 (Admin), where the magistrates’ court had refused an adjournment despite the fact that neither D nor her solicitor could attend court because of bad weather. —-» Andrews J, remitting the case for retrial, said (at [12]) that it was ‘self-evident that if the magistrates had taken into account the relevant considerations and if they had balanced [D’s] right to a fair trial with the lack of fault caused by the weather conditions, the fact that she had already attended court previously, and all the other relevant considerations, they could not have refused this adjournment’.
– R (Parashar) v Sunderland Magistrates’ Court [2019] EWHC 514 (Admin), [2019] 2 Cr App R 3 (18), where it was held that ‘the decision to fix a date for a trial at which the prosecution expert could attend and the defence expert (whose report had been served in good time) could not was clearly wrong’ (per Bean LJ, at [46]). His lordship noted that if the trial had proceeded on that basis, D’s ability to present his defence ‘would have been seriously compromised and the trial would inevitably have been unfair’. Simler J concurred, saying (at [49]):
To insist on a trial date on which the prosecution expert was available but the defence expert was not was wrong and would have led to an unfair trial. There is a high public interest in summary trials taking place quickly and on the day set for trial, and in adjournments not being granted absent compelling reasons. But it is also necessary as a matter of fairness and in the interests of justice, where a defence request to vacate a trial date is made, to consider whether, if it is not granted, the defendant will be able fully to present his defence, and if he will not be able to do so, the degree to which the defence will be compromised
Court has held that, unless the admissibility is challenged, the judge will admit the evidence as sufficient safeguards are provided by the rules on pre-trial disclosure
The MCA 1980, s. 128(1), provides that, whenever a magistrates’ court has power to remand a person, it may remand in custody
remand in custody means…
committing the accused to custody to be brought before the court at the end of the period of remand or at such earlier time as the court may require
The MCA 1980, s. 128(1), provides that, whenever a magistrates’ court has power to remand a person, it may remand on bail in accordance with the provisions of the BA 1976
remand in bail means…
directing the accused to appear before the court at the end of the period of the remand or, if bail is made continuous, directing that the accused appear at every time to which the proceedings may be adjourned
Sections 10(4) and 18(4) provide (in almost identical terms) that, on adjourning proceedings for an either way offence, the court must remand the accused (on bail or in custody) unless the accused:
(a) first appeared in answer to a summons or requisition (as opposed to being brought before the court in custody or appearing in answer to police bail); and
(b) has not been remanded at an earlier hearing.
Court considering bail once D is charged:
- Can never be any guarantee of bail once a defendant is charged
Fixing date for next hearing when adjourned or remand:
Where a case is simply adjourned, there is no need to fix the date for the next hearing at the time of adjourning
If there is a remand the adjournment date must be fixed forthwith and is the date to which the accused is remanded
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.
The maximum period for which a magistrates’ court may remand an accused in custody is
‘eight clear days’
Exception to the ‘eight clear days’
(maximum period for which a magistrates’ court may remand an accused in custody)
following summary conviction, there may be a remand in custody of up to three weeks (four weeks if the remand is not in custody) for inquiries, such as a pre-sentence report, to be made into the most suitable method of dealing with the accused
Further remands
A person who is brought before the court after an earlier remand may be remanded again
Further remands
The only limitation on the number of remands is the general discretion of magistrates to refuse an adjournment if it would be against the interests of justice
e.g., because they consider that the party requesting the adjournment should have been ready to proceed on the present occasion
By s. 130, a court remanding an accused in custody may order that, for subsequent remands, the accused be brought up before a different magistrates’ court nearer to the prison where the accused is to be confined while on remand.
That alternate court then enjoys the same powers in relation to remand that the original court would otherwise have.
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.
- S22 Prosecution of Offences Act 1985: empowers the SoS to make regulations
fixing:
(a) the max period available to the prosecution to complete any preliminary (pre-trial) stage of proceedings; and/or
(b) the max period for which an accused may be kept in custody while awaiting
completion of such a stage
Time-limits within which prosecution must complete the stage of proceeding in question
– The regulations may prescribe an overall time-limit within which prosecution must complete the stage of the proceedings in question. However, no overall time-limits currently apply.
- Alternatively or additionally, the regulations may prescribe a custody time-limit, that being the max period for which the accused may be remanded in custody while the stage of proceedings is being completed
Between first appearance and committal. By reg. 4(2) and (4), the maximum period for which an accused charged with an indictable offence may be held in the custody of the magistrates’ court between first appearance and committal proceedings is
70 days.
(b) Between first appearance and summary trial. If the offence is triable either way and the court determines to try the case summarily, the maximum period in custody between first appearance and the court beginning to hear evidence for the prosecution is
70 days.
unless the decision for summary trial is taken within 56 days, in which case the limit is reduced to 56 days
In the case of a summary offence, the maximum period is
56 days (reg. 4(4A)).
Between committal and trial on indictment, the maximum period for which an accused committed for trial to the Crown Court may be held in custody between ‘committal’ and the start of trial is
112 days.
Multiple committals.
If a single indictment is preferred containing counts in respect of which the accused was committed for trial on two or more different occasions, does the 112-day limit applies separately in relation to each offence?
YES!
Section 51 sending. Where the accused has been sent for trial under the CDA 1998, s. 51, the maximum period is 182 days between the date on which the accused is sent to the Crown Court and the start of the trial.
From this maximum must be deducted any period during which the accused was held in custody by the magistrates
Retrial directed by the Court of Appeal.
where an indictment is preferred by
direction of CA following order of a retrial, 112 days limit applies from that preferment
Voluntary bill.
Where proceedings are by way of a voluntary bill of indictment the 112-day period runs from the date of preferment of the bill
Where proceedings are by way of a voluntary bill of indictment the 112-day period runs from the date of preferment of the bill
it must bail the accused as from the expiry of the limit, subject to a duty to attend for trial.
The regulations do not expressly deal with the procedure for bailing an accused who has the benefit of the 70-day time-limit between charge and committal or summary trial.
In R (Jabbar) v Sheffield Crown Court [2022] EWHC 516 (Admin), it was underlined that 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.
Procedure for Seeking an Extension of Time-limits
At any time before the expiry of a time-limit, the Crown Court, if the accused has already been committed for trial, or the magistrates’ court, in other cases, may extend the limit if satisfied of two matters:
(a) that ‘the prosecution has acted with all due diligence and expedition’, and
(b) that there is ‘good and sufficient cause for doing so’
Procedure for Seeking an Extension of Time-limits
the Divisional Court observed that the extension of custody timelimits should be addressed at the time that a trial date was fixed outwith the existing limit (in that case to accommodate the convenience of counsel), rather than after the decision as to listing had already been made. Further procedural guidance relating to custody time-limit extensions is contained in CrimPD XIII, Listing, para. F.4 (see Supplement, CPD.XIII.F).
‘Bail in criminal proceedings’ is defined in s. 1(1) of the Act as:
‘(a) bail grantable in or in connection with proceedings for an offence to a person who is accused or convicted of the offence, or
(b) 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’.
Bail by MC
- The remand may be in custody or on bail
- Power to grant bail for the period of any remand for reports after summary conviction + remands on bail for medical examination
Where a magistrates’ court sends an accused to the Crown Court for trial under the CDA 1998, s. 51, the accused may be kept in custody or released on bail
- committals for sentence may be in custody or on bail
Where a magistrates’ court has summarily convicted an accused and passed a custodial sentence, it may grant bail pending the determination of an appeal to the Crown Court or to the Divisional Court by way of case stated
Bail Jurisdiction in Murder Cases
The CAJA 2009, s. 115(1), provides that a person charged with murder may not be granted bail except by order of a Crown Court judge.
A person who appears before a magistrates’ court charged with murder must be committed (in custody) to the Crown Court
A Crown Court judge must then make a decision about bail as soon as reasonably practicable and, in any event, within the period of 48 hours (excluding weekends and public holidays) beginning with the day after the day on which the person appears before the magistrates’ court (s. 115(3)).
These provisions apply whether or not the accused is charged with any offences in addition to the murder charge (s. 115(6)).
Bail by the Crown Court
- Under the Senior Courts Act 1981, s. 81(1)(a) to (g), the Crown Court may grant bail to any person:
(a) who has been sent in custody for trial in the Crown Court;
(b) who has been given a custodial sentence following conviction in the magistrates’ court (whether by guilty plea or a finding of guilty after trial) and who is appealing to the Crown Court against conviction and/or sentence;
(c) who is in the custody of the Crown Court pending disposal of the case (so whenever the Crown Court adjourns a trial or adjourns between conviction and sentence, it has a discretion to grant the accused bail for the period of the adjournment);
(d) and (e) whose case has been decided by the Crown Court but who has applied to the court to state a case for the Divisional Court’s opinion or is seeking judicial review of the decision;
(f ) to whom the Crown Court has granted a certificate that the case is fit for appeal to the Court of Appeal, whether against conviction or against sentence; and
(g) who has been remanded in custody by a magistrates’ court on adjourning a case under the PCC(S)A 2000, s. 11, the CDA 1998, s. 52(5), or the MCA 1980, ss. 10, 17C, 18 or 24C, provided the magistrates’ court has granted a certificate that, before refusing bail, it heard full argument.
PRINCIPLES GOVERNING BAIL
Presumption in Favour of Bail
- creates a rebuttable presumption in favour of bail (right to bail)
It provides that: ‘A person to whom this section applies shall be granted bail except as provided in Schedule 1 to this Act’. Subsections (2) to (4) of s. 4 then define the persons who benefit from the presumption in favour of bail. They are any person:
(a) who appears before the Crown Court or a magistrates’ court in the course of or in connection with proceedings for an offence, or applies to a court for bail (or for a variation of the conditions of bail) in connection with those proceedings (s. 4(2)); (b)
(b) who has been convicted of an offence and whose case is adjourned for reports before sentencing (s. 4(4)); and
(c) who has been brought before the court under the SA 2020, sch. 10, for alleged breach of a requirement of a community order (s. 4(3)).
-
Presumption in Favour of Bail
- Section 4(1) of the BA 1976
- Apart from cases where the accused has been convicted and the hearing has been adjourned for pre-sentence reports, s. 4(1) does not apply once a person has been convicted of an offence (as is made clear in the proviso to s. 4(2)).
- Therefore, an appellant seeking bail pending determination of an appeal against conviction and/or sentence cannot rely on the presumption in favour of bail.
- Neither can an offender who is committed to the Crown Court for sentence following conviction in a magistrates’ court.
- In both those situations, there is power to grant bail, but its grant or refusal is entirely at the discretion of the court. It should also be noted that s. 4(1) does not apply to bail from the police station, although, once a detainee has been charged, the PACE 1984, s. 38(1), imposes on the custody officer a duty to grant bail unless its refusal can be justified on grounds similar to those which would justify a court refusing bail under the BA 1976 (see D2.47 et seq.).
Whenever bail is granted in criminal proceedings (whether or not subject to the presumption in s. 4), the general provisions of the Act concerning bail apply (e.g., a person who fails without reasonable cause to surrender commits an offence under s. 6).
Exceptions to the Presumption in Favour of Bail
No Bail for Homicide or Rape if Previous Conviction
Murder
No Bail for Homicide or Rape if Previous Conviction
- the court may not grant bail to an accused who is charged with (or has been convicted of ) murder, attempted murder, manslaughter, rape or attempted rape, or certain other offences under the SOA 2003, if the accused has been convicted of any of these offences (or culpable homicide) in the past, unless it is of the opinion that there are exceptional circumstances which justify it.
- In a case where the previous conviction was for manslaughter, the restriction applies only if the accused received a custodial sentence for that offence.
- ‘Conviction’ is widely defined to include a finding that the defendant was not guilty by reason of insanity, or was found to have done the act or made the omission charged in a case where the defendant was unfit to plead.
- Previous convictions in other EU Member States are treated as being relevant previous convictions if the corresponding offences in the UK would be so treated.
- an accused who is charged with murder may not be granted bail unless the court is of the opinion that there is no significant risk that the accused will, if released on bail, commit an offence that would, or would be likely to, cause physical or mental injury to any other person.
- Again, the presumption in favour of bail is effectively reversed.
REFUSING BAIL TO AN ACCUSED CHARGED WITH AN INDICTABLE OFFENCE
- Part I of sch. 1 to the 1976 Act sets out the circumstances in which an accused may be refused bail if charged with (or awaiting sentence for) at least one offence that is triable on indictment and punishable with imprisonment (part IA applies where the offences(s) are imprisonable summary offences, and part II applies when none of the offences are imprisonable; see D7.35 et seq).
- An unconvicted accused charged with an offence which is imprisonable and triable on indictment need not be granted bail if one or more of the grounds for a remand in custody (listed in the BA 1976, sch. 1, part I, paras. 2 to 6A) is applicable. The first — and most commonly relied on — ground (para. 2) subdivides into three (see D7.13). As regards offenders convicted but remanded for reports, there is a further ground (para. 7) on which reliance may also be placed. The statutory grounds for refusing bail are as follows.
Risk of Absconding, Further Offences or Interference with Witnesses
TEST (‘Big three’ grounds for objecting to bail)
whether, if D is released on bail, there a
‘SUBSTANTIAL GROUNDS’ for believing that the D would either:
(a)fail to surrender to custody, or
(b)commit an offence while on bail, or
(c)interfere with witnesses or otherwise obstruct the course of justice, whether in relation to himself or any other person
Risk of Absconding, Further Offences or Interference with Witnesses
Standard of Proof
- court does not need to be satisfied that the consequences Standard of Proof
- The court must merely be satisfied that there are ‘substantial grounds for believing’ that they would occur.
Risk of Absconding, Further Offences or Interference with Witnesses
Standard of Proof
Although the question posed by para. 2 is whether substantial grounds exist for believing that a future event will occur and to that extent is a question of fact, it is not a question which can be answered according to the usual rules of evidence.
- Re Moles [1981] Crim LR 170 it was held that a police officer explaining the objections to bail was entitled to recount what he had been told by a potential witness about the threats the latter had received, with a view to showing that the granting of bail would lead to further interference with witnesses.
- In Mansfield Justices, ex parte Sharkey [1985] QB 613, Lord Lane CJ referred to Re Moles and said (at p. 626A), ‘there is no requirement for formal evidence to be given [at an application for bail] … It was for example sufficient for the facts to be related to the justices at second hand by a police officer.’
Grounds do NOT apply WHERE:
( ‘Big Three’ grounds for objection to bail)
(1) D is 18+; AND
(2) has not been convicted in present proceedings; AND
(3) no REAL PROSPECT of custodial sentence.
Considerations to the court when considering big 3
these factors are NOT grounds themselves, but help the court determine if the grounds are made out.
(a) the nature and seriousness of the offence and the probable method of dealing with the offender for it (see D7.18);
(b) the character, antecedents, associations and community ties of the accused (see D7.19 and D7.20);
(c) the accused’s ‘record’ for having answered bail in the past (see D7.21);
(d) the strength of the evidence against the accused (see D7.22); and
(e) if the court is satisfied that there are substantial grounds for believing that the accused would commit an offence while on bail, the risk that the accused may engage in conduct likely to cause physical or mental injury to anyone else (see D7.23).
(a) the nature and seriousness of the offence and the probable method of dealing with the offender for it (see D7.18);
- If offence is serious, then the accused will know that, if convicted, he is likely to receive a severe sentence and will therefore be tempted to abscond.
- The seriousness of offence not an automatic/conclusive reason for refusing
bail - The statutory presumption in favour of bail continues to apply after conviction where there is an adjournment for the preparation of a pre-sentence report before sentence is passed. Even the inevitability of a custodial sentence is not itself an exception to the right to bail, unless it justifies a big 3 ground (eg
FTS).
(b) the character, antecedents, associations and community ties of the accused (see D7.19 and D7.20);
- This refers primarily to previous convictions. Previous convictions may make a custodial sentence more likely (especially if the accused, if convicted of the present offence, will be in breach of a suspended sentence of
imprisonment). - Previous convictions under s6 BA 1976 (for FTS in answer to bail) are especially relevant.
- a person of previous good character is more likely to be trusted by the courts than one with a crim record.
b) associations and community ties of the accused (see D7.19 and D7.20);
- The word ‘associations’, generally taken to refer to : undesirable friends
with crim records. - Examining the ‘community ties’, involves: looking at how easy it would be
for the accused to abscond and how much he has to lose by absconding. - How long has he lived at his present address?
- Is he single or married?
- Does he have dependent children?
- Is he is employment?
- How long has he had his present job?
- Does he have a mortgage or protected tenancy?
- An accused of ‘no fixed abode’, or living in short-term accommodation, is not automatically debarred from bail, but the
ease with which he could disappear to another address is a factor to be
considered.
(c) the accused’s ‘record’ for having answered bail in the past (see D7.21);
- Considering the bail record of the accused requires the court to consider whether he has absconded in the past. If so = evidence of a risk he may do so again.
(d) the strength of the evidence against the accused (see D7.22); and
- This is relevant re risk of FTS one who knows there is a good chance of being acquitted is less likely to abscond than one who anticipates almost certain conviction.
- Can be argued that there is no point in the accused absconding if he is likely to
be acquitted anyway. Conversely, if the prosecution case is strong, he may
abscond. - Is also relevant that: a remand in custody followed by acquittal creates a manifest, if sometimes unavoidable, injustice.
- In borderline cases, where the arguments against bail are strong but not
overwhelming, the court may prefer to run the risk of the accused absconding etc, rather than run the risk of his being acquitted after a long period in custody on remand.
