Bail

Question 1

what is bail?

Answer 1

the release of a person subject to a duty to surrender to custody at an appointed time and place

court options:

• remand D in custody (no bail)
• remand D in the community with conditional bail
• remand D in the community with unconditional bail

Question 2

when is the issue of bail considered?

Answer 2

whenever a court hearing is adjourned awaiting another hearing (usually in first hearing)

examples:

• D awaiting trial
• D convicted awaiting sentencing
• D alleged to breach a requirement of a community order
• D appealing a conviction or sentence
• D being committed for sentence from MC to CC

Question 3

how does bail work?

Answer 3

• right to bail = the court presumes that D is entitled to bail
• P can raise an objection to bail if bail is presumed on many grounds - and the court will consider specific factors when deciding whether to grant their objection
• D must apply for bail if there is no presumption of the right to bail

Question 4

what is the right to bail and when does D have the right to bail? (3)

Answer 4

The court presumes that D is entitled to bail, and it is only if an objection is properly made out by the prosecution that bail can be refused

presumption of bail applies =

1. between first hearing and trial
2. after D is convicted and waiting for sentencing hearing
3. D alleged to breach a requirement of community order

Question 5

when is there no right to bail presumption? i.e., when should D apply for bail?

Answer 5

1. D appealing conviction or sentence
2. D being committed for sentence from Magistrates to CC

Question 6

what are the grounds for P objecting to bail? (4 points)

Answer 6

• main ground = if D is released on bail, there are SUBSTANTIAL GROUNDS for believing that D would either:

1. fail to surrender into custody /attend a subsequent hearing
2. commit further offences on bail
3. interfere with witnesses or obstruct the course of justice (witness intimidation or destroy evidence)

• substantial grounds for believing = not high test - only need to show the fear has substance and merit (NOT: ‘D is more likely than not’ to commit a ground)
• BUT = if there is NO REAL PROSPECT OF IMPRISONMENT, bail should not be removed (eg, theft of banana)
• further grounds = D NEED NOT BE GRANTED if:

1. remand in custody is for D’s own protection
2. the court has insufficient info/time to deal with bail so remands D in custody until enough evidence comes
3. D is already serving a sentence in custody

Question 7

what is an argument for the defence if the court believes that a ground is made out?

Answer 7

the court ought not to reject bail and grant conditional bail if a condition would alleviate the concerns such that the ground is no longer substantial

Question 8

what are the grounds for P objecting to bail in summary only offences?

Answer 8

imprisonable summary only offences:

• ground of FTS = only if D has a prior FTS or was arrested under s7 (D was on bail but failed to surrender in these proceedings)
• ground of commtting further offences (CFO) = if committed this offence while on bail or was arrested under s7
• ground of interference = if D was arrested under s7
• the need not be granted bail grounds

non-imprisonable summary only offences:

• ground of FTS = D was convicted for this offence and either D has a prior FTS or was arrested under s7
• ground of CFO = D was convicted and D was arrested under s7
• ground of interference = D was convicted and D was arrested under s7
• the need not be granted bail grounds except for insufficient time or information to decide on bail

Question 9

what are the factors that the court takes into account when considering grounds for objecting to bail? (7)

Answer 9

1. nature and seriousness of the offence and the likely sentence = eg, if convicted D is likely to receive a long sentence and will be tempted to abscond
2. D’s character = eg, drug addictions
3. prior convictions which would make a custodial sentence more likely
4. associations = friends with criminal records
5. community ties = examines how easy it is for D to abscond and how much D has to lose by absconding - eg, married with kids and a job - absconding unlikely
6. D’s bail record = if D absconded in the past, tendency to commit offences while on bail
7. strength of evidence = D who knows there is a good chance of being acquitted is less likely to abscond

Court MUST consider these factors for the main grounds ; but it has wide discretion ; but it cannot remove bail only on a factor not a ground

Question 10

what is the position for bail when D is charged with murder?

Answer 10

• only a crown court judge can grant bail
• there is no presumed right of bail
• if D has previous convictions for murder, rape, sexual offence, attempted murder = D may not be granted bail unless there are exceptional circumstances to justify it
• if D does not have such previous convictions = D may not be granted bail unless there is no significant risk that D will cause an offence likely to cause physical or mental injury

Question 11

what are the special rules for granting and objecting to bail when D commits the alleged offence while on bail for another case?

Answer 11

if the prior offence was =

• summary imprisonable offence = court need not grant bail if there are substantial grounds for believing that D will commit further offences
• indictable offence = court need not grant bail

Question 12

what is the court’s power to impose bail conditions, and can these be varried?

Answer 12

• The court can impose ‘such conditions as appear necessary’ (no limit on number)
• Before attaching a condition, the court must consider if the condition is relevant, proportionate, and enforceable
• D or P can apply to vary bail conditions at a hearing (unless D and P agree on the variation)

Question 13

what bail conditions can be imposed to reduce the risk of D absconding? (6)

Answer 13

• residence at a given address
• reporting to the police station
• surety by someone with influence over D can offer money to secure D’s return to court (paid when D absconds)
• security given by D or someone else (paid before D is released on bail)
• curfew with electronic tagging
• bail hostels

Question 14

what bail conditions can be imposed to reduce the risk of D committing further offences on bail? (5)

Answer 14

• curfew
• restriction on where D may go
• restriction on who D can contact
• curfew with electronic tagging
• bail hostel

Question 15

what bail conditions can be imposed to reduce the risk of D interfering with witnesses or evidence? (4)

Answer 15

• restriction on where D may go
• restriction on who D can contact
• curfew with electronic tagging
• bail hostel

Question 16

what happens if D breaches bail conditions?

Answer 16

• D can be arrested under s 7 Bail Act 1976 if they breached or were about to breach bail conditions
• D will then be required to attend court and bail conditions can be tightened or D can be remanded into custody
• it is NOT an offence to breach bail conditions
• It is an offence to abscond / fail to surrender to court without reasonable cause when summoned or when supposed to for a hearing = punishable by prison or fine

Question 17

what is the procedure for applying for bail?

Answer 17

1. D appears before magistrates court at first hearing
2. If P does not object to bail, this will be stated to the court
3. If P objects to bail, court will hear submissions by P against bail and submissions by D for bail
4. court then announces decision
5. if the court refuses bail or imposes conditions, it must give reasons including the ground and factors considered

D applies for bail when:

1. D has right to bail then P applies to object
2. D has no right to bail when D is waiting to appeal or when D is being committed for sentence from mag to CC

Question 18

what are D’s opportunities to apply for bail if their trial is to be held at the magistrates court?

Answer 18

D has 2 attempts at getting bail at magistrates and 1 attempt at getting bail on appeal to the Crown Court

• D can apply for bail in the first hearing - must do it ASAP
• Automatically, 1 week later there is a second appearance at the magistrates ==> D can apply for bail again
• when D applies for bail twice at the magistrates, D will get a ‘certificate of full argument’
• D can appeal to the CC if MC withholds bail = CC judge will hear the appeal in chambers 1 business day after the notice of appeal was served
• after this = D can only apply again / P can apply to object to bail if there was a change in circumstances (e.g., D committed an offence on bail)
• NOTE FOR URGENT CASES = D can directly appeal to CC (heard 1 day after) for bail after the first hearing but D loses the right to the second application at the magistrates

Question 19

if D’s trial is to be held in the crown court, what is the bail position?

Answer 19

If D’s trial will be held in the CC =

• D will have 1 attempt for bail in the magistrates court (unless murder) and 1 further application attempt in the CC
• solicitor will make an application in writing
• this will be reheard before a judge in chambers within 48 hours

Question 20

can the prosecution appeal bail decisions?

Answer 20

• yes but P must have opposed bail originally and the offence must be imprisonable
• appealing MC’s decision to grant bail = heard by a Crown Court Judge
• appealing CC’s decision to grant bail = heard by a High Court Judge

Question 21

what are the consequence of breaching bail conditions vs consequence of failing to surrender to court?

Answer 21

• breaching bail conditions = D can be arrested and must appear before court, court will reconsider bail (not an offence)
• failing to surrender to court = offence - punishable by imprisonment or a fine - gives grounds for bail to be refused until the new trial date

Question 22

if bail is refused, what is the time limit to remand D in custody while awaiting trial?

Answer 22

trial must be held:

• 56 days after first hearing for trials in MC
• 182 days after first hearing for trials in CC (minus any days spent in custody before the case is sent to CC)

if time expires = D is released unless P applies to extend the time and shows it acted with diligence and expedition and there is good and sufficient cause to have D further remanded into custody

Question 23

what is first and onward remand in the magistrates court?

Answer 23

IF MC at the first hearing remands D into custody to await summary trial

• remand must be max 8 clear days then D must be brought back to court for another bail application (can be via live link)
• then, D must be brought back every 28 days or less until trial so that the MC can still remand them into custody (can be in D’s absence)
• trial must be within 56 days of the first hearing (unless P successfully extends)

Question 24

Summary of grounds to object or apply for bail (8 points)

Answer 24

• The defendant has the right to bail under s 4 Bail Act 1976 which entails a presumption of their entitlement to bail unless the prosecution can properly make out an objection (when awaiting trial, sentence, or alleged to have breached a requirement of a community order)

P must object to bail on one of the following grounds:

• Indictable offence = if D were to be released on bail, there are substantial grounds for believing D would:

1. fail to attend a subsequent hearing
2. commit further offences on bail, or
3. interfere with witnesses or obstruct the course of justice (e.g., witness intimidation, destruction of evidence)

• ‘substantial grounds’ = objective test; low threshold; only need to show that fears of the behaviour happening have substance and merit (not that the defendant would satisfy the ground)
• Summary offence = P can only object on one of the above grounds if:

1. D having been on bail for the current proceedings breached a condition of that bail,
2. D has a conviction for failing to surrender in the past.

• Bail should not be removed on one of the grounds if there are no real prospects of D receiving a custodial sentence
• Further grounds for bail =

1. remand in custody for D’s own protection
2. insufficient information to deal with bail
3. D is already serving a custodial sentence

• Application for / objection to bail (on grounds above) should reference these factors =

1. nature and seriousness of offence, and likely sentence
2. D’s character, antecedent, associations, and community ties
3. D’s bail record
4. strength of evidence

• Bail can be imposed with the following conditions (and D should argue these alleviate concerns) = reporting at police station, curfew, restrictions on where D can go or who they can come in contact with, surety or security, residence at a specified address