Bail

Question 1

List the three ways a defendant can be remanded.

Answer 1

1) remand in custody;
2) remind on bail with conditions attached to that bail;
3) remand on unconditional bail.

Question 2

What is the basic rule with regards to remand in custody?

Answer 2

Basic rule is that a defendant cannot be remanded in custody for more than eight clear days at a time.

Question 3

List the situations where a defendant may be remanded for up to 28 days at any one time.

Answer 3

1) D has previously been remanded in custody for the same offence;
2) they are before the court; and
3) date set to remand them until, on which it expects the next stage of proceedings to take place.

Question 4

What are the respective time limits for the amount of time D can be held on remand in custody for:

a) summary offences;
b) either way offences

for cases being heard in the magistrates court?

Answer 4

a) 56 days;
b) 70 days (however if the allocation hearing takes place within 56 days, the custody time limit for either way offence becomes 56 days).

Question 5

Can the remand in custody limit be extended and how is this done?

Answer 5

• The prosecution can apply to have the limit extended but they must satisfy the court that, on the balance of probabilities, there is good and sufficient cause to do so and that they have acted with diligence and expedition.
• The application may be made orally or in writing, but a written notice of intention must be served on the court and D within 2 days before the hearing in the Magistrates’ court.

Question 6

What happens when the custody time limit elapses?

Answer 6

Unless the prosecution have successfully applied for this to be extended, D must be released on bail until their trial.

Question 7

Can D appeal the extension to the remand in custody time limit?

Answer 7

Yes. D can appeal a magistrates’ decision to extend the time limit in the Crown Court.

Question 8

Can the prosecution appeal the Magistrates’ decision not to extend the remand in custody limit?

Answer 8

Yes. This is done by way of appeal to the Crown Court.

Question 9

Where is D usually remanded?

Answer 9

A remand centre or prison.

It is possible for Magistrates’ court to allow D to be remanded in police station for up to three days if necessary to obtain answers to enquiries relating to the offence which D has been charged with (likely where they are charged with one offence but the prosecution suspect they are involved with other related offences which D has not yet been charged with).

Question 10

True or False: A defendant who is on bail may be remanded prior to conviction for any period of time, subject to the defendant’s consent.

Answer 10

True.

Question 11

True or False: A defendant who is committed to the Crown Court for sentence, or whose case is sent to the Crown Court for trial, may only be remanded in custody and not on bail until the case comes before the Crown Court.

Answer 11

False. D could either be remanded in custody or on bail.

Question 12

Explain the time limits for remand after conviction.

Answer 12

• D can be remanded in custody (after conviction yet before sentencing) for successive periods of not more than three weeks;
• D can be remanded on bail (after conviction yet before sentencing) for a successive period of not more than 4 weeks.

Question 13

List the situations on which S4 Bail Act 1976, gives a presumption D will be granted bail.

Answer 13

(a) all defendants prior to conviction;
(b) defendants who have been convicted if their case has been adjourned for the court to obtain reports before sentencing; and
(c) defendants who are appearing before the court for breach of a community sentence.

Question 14

List the defendants to which the presumption under s4 Bail Act 1976 does not apply.

Answer 14

a) those committed to Crown Court for sentence;
b) those who are appealing against conviction or sentence.

Question 15

List the specified offences (under s25 of CJPOA 1994) where bail may only be granted in exceptional circumstances.

Answer 15

1) Rape;
2) Murder;
3) Manslaughter;
4) Attempted murder;
5) Attempted rape;
6) Serious sexual offences.

(Note this list also applies where D has a previous conviction for one of the above offences).

Question 16

Explain the process when D makes an application for bail and is being charged with murder.

Answer 16

• This application must be assessed by a Crown Court judge. Only a Crown Court judge can grant bail to someone charged with murder.
• The decision must be made within 48 hours;
• The judge can only grant bail if they are of the opinion there would be no significant risk of D whilst on bail, committing an offence likely to cause physical or mental injury to another.

Question 17

List the situations where a Magistrates court does not have the power to remand D in custody before his case is dealt with.

Answer 17

1) D has attained the age of 18;
2) D has not been convicted of an offence in those proceedings; and
3) it appears to the court there is no real prospect D will be sentenced to a custodial sentence in the proceedings.

Question 18

1) Explain the main grounds on which will prevent the court granting bail to D charged with an either way or indictable offence.

2) Also explain the threshold required for the court to be satisfied these grounds apply.

Answer 18

1) Under paragraph 2(1) Bail Act 1976, d will not be granted bail if court is satisfied there are substantial grounds for believing D, if released on bail would:
a) fail to surrender to custody;
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.

2) This is a high threshold, and the court must be satisfied there are substantial grounds for believing D will if released on bail do one of the above. Belief that D MAY do one of the above is NOT sufficient. As such the court will consider the following:
a) nature and seriousness of the offence (and probable sentence);
b) character, associations and community ties of D;
c) D’s record in respect of previous bail grants;
d) strength of the evidence against D.

Question 19

List the grounds (other than para 2(1)) where D may not be granted bail (under the Bail Act 1976) in relation to either way or indictable offences.

Answer 19

1) If court is satisfied D should be kept in custody for their own protection, or if they are a child/ young person, for their own protection;

2) Court is satisfied it has not been practicable to obtain sufficient info for the purpose of taking the decision on bail for want of time since the institution of the proceedings against D;

3) If D, having previously been released on bail in, or in connection with, the proceedings, D has been arrested in pursuance of section 7 Bail Act 1976.

Question 20

Explain the following: The nature and seriousness of the offence and the probable methods of dealing with D for it (and the strength of evidence against them).

Answer 20

Will most likely be relevant to a prosecution argument that there are substantial grounds for believing D would fail to surrender to custody if on bail.

Highly likely to be the argument if D has been charged with a serious offence likely to result in a prison sentence and the evidence against D is strong.

Question 21

Explain how character and antecedents of D could lead to a court believing there is a substantial ground they would do one of the three things set out by paragraph 2(1) Bail Act 1976.

Answer 21

This is a reference to D’s previous convictions.

Prosecution may raise D’s prior record to argue there are substantial grounds for not granting bail, stating it is likely they would commit another offence.

Question 22

Explain the associations argument for suggesting there are substantial grounds to believe D will do one of the three things set out by paragraph 2(1) bail Act 1976.

Answer 22

If D is known to associate with other criminals, or is known to be a member of a criminal gang, CPS may suggest the substantial grounds requirement is satisfied.

Question 23

Explain the community ties argument for suggesting there are substantial grounds to believe D will do one of the three things set out by paragraph 2(1) bail Act 1976.

Answer 23

Relevant if D has nothing tying them down to the area (eg no family/ fixed abode) and it would be easy for them to leave the area if on bail. Prosecution may use this as a substantial ground.

Question 24

List the grounds where D may be refused bail for a summary only offence (note these are almost identical to the grounds for either way and indictable offences).

Answer 24

(a) failure to surrender (if the defendant has previously failed to surrender);
(b) commission of further offences (if the instant offence was committed on bail);
(c) fear of commission of offences likely to cause another person to suffer or fear physical or mental injury;
(d) defendant’s own protection (or welfare if a youth);
(e) defendant serving custody;
(f) fear of failure to surrender, commission of offences, interference with witnesses or
obstruction of justice (if the defendant has been arrested for breach of bail in respect of the instant offence); and
(g) lack of sufficient information.

Question 25

Can a court refuse bail for non-imprisonable offences, and if so explain the grounds which may allow this?

Answer 25

Yes under the following very limited circumstances:

a) D was granted bail in previous criminal proceedings but failed to answer bail and the court believes if granted bail, D would do so again;
b) D needs to be kept in custody for their own protection or, if D is under 18, for their own welfare;
c) D is currently serving custodial sentence in respect of a different offence; or
d) D was granted bail at earlier hearing in the same proceedings but has breached these bail conditions (ie failed to answer bail) and court is satisfied there are substantial grounds for believing that if D is released on bail, D would fail to surrender, commit another offence or interfere with witnesses/ obstruct the course of justice.

Question 26

Explain the procedure for applying for bail where the CPS objects to bail being granted.

Answer 26

1) CPS rep must as soon as possible, provide D’s solicitor with all info it possesses which is material to the court’s decision;

2) CPS rep will state objection to bail and apply for D to be remanded in custody. They’ll hand magistrate a list of D’s previous convictions if relevant and outline the grounds to their objection.

3) D’s solicitor will make an application for bail on client’s behalf and will respond to all of the factors/ arguments cited by prosecution in their objection. d’s solicitor will also suggest any appropriate conditions which could be attached too the bail;

4) Magistrates may hear other evidence from other people in support of D’s application, eg prospective employer, or someone providing D with accommodation.

5) Magistrates then decide whether to remand D in custody or on bail. If bail is granted, they will specify any conditions which will apply (eg surety who is offering money as guarantee D will attend court may be asked to swear an oath).

Question 27

If bail is refused at the first hearing, can D’s solicitor make further applications for bail?

Answer 27

Yes. However only one further full application.

If the second full application is rejected, D’s solicitor can only make a new request for bail provided there are new factual/ legal grounds for the request (ie the same grounds cannot be cited again).

Question 28

Explain the process to appeal a magistrates refusal of bail in the crown court.

Answer 28

• Can only be done once magistrates have issued ‘a certificate of full argument’;
• D’s solicitor must complete a notice of application as soon as practicable. This notice must be sent to Crown Court, Magistrates court and the CPS;
• Notice must specify the decision D wants Crown Court to make (eg grant bail or vary a bail condition) as well as each offence D is charged with.
• Noice should also explain why Crown Court should grant bail, as well as explaining further info/ legal argument that has come to light since magistrates decision.
• Notice should also include any proposed bail conditions.
• If the prosecution opposes the appeal, they just tell crown court and defence why immediately.

Question 29

Which documents does the Crown Court judge need in order to consider the appeal against refusal of bail?

Answer 29

1) Notice of application;
2) Certificate of full argument; and
3) Record of D’s previous convictions (if applicable).

Question 30

Explain the process for the CPS appealing a magistrates’ decision to grant bail.

Answer 30

1) Oral notice must be given by prosecutor at the end of the hearing during which the court granted bail (and before D is released from custody);

2) This notice must be confirmed in writing and served on D no more than 2 hours after telling the court of their intention to appeal;

3) Crown Court must hear the appeal as soon as possible (in any event no later than 2 business days after the appeal notice was served);

4) D will be remanded in custody until the appeal has been heard by the Crown Court.

Note: Prosecution should only be appealing where they have ‘grave concern’ and mere disagreement with the decision is not likely to be sufficient grounds for overturning the grant of bail.

Question 31

Explain the procedure if D absconds/ fails to surrender whilst on bail.

Answer 31

1) Magistrates’ will issue an arrest warrant (usually not backed with bail which means when caught D will be held in police custody until their next hearing).

2) If D is arrested after the finishing of the sitting of courts on a Friday, special court may be convened on Saturday morning but never on Sunday. If D is therefore arrested later than Saturday morning, the hearing will take place on the Monday morning.

Question 32

List the offences under the Bail Act 1976 with which a D failing to surrender to custody at the appointed date and time, may be charged with.

Answer 32

1) If D fails without reasonable cause, to surrender to custody, they will be guilty go hr offence of absconding, contrary to S6(1) BA 1976 (eg in R v Scott D was half an hour late for the hearing and was therefore charged with this offence);

2) If the defendant did have a reasonable cause for failing to surrender, they will still be guilty of an offence under s 6(2) unless they surrendered to custody as soon as it was reasonably practicable for them to do so.

Question 33

What happens where D breaches bail conditions?

Answer 33

• This is not a criminal offence but will usually lead to a bail review hearing by the magistrates.
• S7(3) Bail Act 1976 gives police officers’ power to arrest a person who has ben bailed to attend court if the officer reasonably believes that person is not likely to surrender to bail or has broken or is likely to breach their bail conditions.
• D who is arrested will be detained in police custody and must be brought before magistrates court within 24 hours. Magistrates’ then decide whether to remand D in custody or grant bail with or without conditions pending the next substantive hearing in the case.

Question 34

Explain the two stage approach adopted by the magistrates used to determine whether there has been a breach in bail conditions of a defendant who has been arrested under S7(3).

Answer 34

1) They will determine if there had been a breach of the bail conditions. D will often admit the breach in practice as there will usually be compelling evidence to suggest breach. If they do not admit it, magistrates have to decide.

2) If it is determined there has been a breach, magistrates must decide whether to remand D in custody or on bail pending the next hearing. D who has breached conditions without good reason is usually likely to be remanded in custody (but bail may be granted with more strict conditions if they feel it appropriate to do so.

Question 35

True or False: Obtaining employment which prevents D from reporting to police station at a certain time on a certain day is a reasonable excuse for breaching this condition.

Answer 35

False.