Bail Flashcards
what is remand?
Decision to adjourn/postpone a case and decide what will happen with D
What are 3 ways in which a D may be remanded?
- Remand in custody
- Remand on bail with conditions attached to bail
- Remand on unconditional bail
What is the basic rule in relation to remand in custody?
Cannot be remanded in custody for more than 8 clear days
What happens if D is remanded in custody where D’s case is still in MC?
D needs to be brought to court on every fourth remand provided they have consented to this and have legal representation
When may a court remand a D in custody for up to 28 days
if;
(a) it has previously remanded them in custody for the same offence; and
(b) they are before the court; and
(c) it can set a date to remand them to on which it expects the next stage of the proceedings to take place.
What is the overall max period of remand in custody (custody time limit)
When can prosecution apply to court to extend the custody time limit?
Must show, on the balance of probabilities, that there is good and sufficient case for the extension and that it is acted with due diligence and expedition
what should happen where there is no successful application to extend custody time limit and time limit has expired
D must be released on bail until trial
does a D have a right of appeal against an extension of a custody time limit
yes, can appeal to crown court against a decision of magistrates court to extend time limit
when may a D on bail be remanded prior to conviction and for how long
D on bail may be remanded prior to conviction for any period of time, subject to D’s consent
What is the presumption that bail will be granted?
(a) all Ds prior to conviction
(b) Ds who have been convicted if their case has been adjourned for the court to obtain reports before sentencing (ch11)
and
(c) Ds who are appearing before the court for breach of community sentence
When does the presumption in favour of bail not apply
does not apply to Ds who;
- who have been committed to crown court for sentence
- who are appealing against conviction or sentence (ch12)
To which offences does the presumption in favour of bail not apply
(a) murder
(b) attempted murder
(c) manslaughter
(d) rape
(e) attempted rape
(f) a number of other serious sexual offences
if D is charged with any of these offences or has previously been convicted of any of these offences, court may grant bail to D if exceptional circumstances apply
Who bears the burden of evidence in relation to whether bail should be granted
generally, prosecution bears burden of persuading court why normal right to bail should be withheld
however, where the D has been charged or previously convicted of a serious offence eg. murder, rape, burden on D to persuade the court why they should be granted bail
Which court usually grants bail
Magistrates Court
however, where D charged with murder, only crown court judge may grant bail (have 48 hrs to make decision whether or not to grant bail)
When may a crown court grant bail to a D charged with murder
generally should not grant bail
however, can grant bail if the court thinks there is no significant risk of D committing, whilst on bail, an offence likely to cause physical or mental injury to another
what is the ‘no real prospect of custody’ restriction?
magistrates court will not have power to remand a D in custody before his case is dealt with in the following circumstances;
(a) the defendant has attained the age of 18;
(b) the defendant has not been convicted of an offence in those proceedings; and
(c) it appears to the court that there is no real prospect that the defendant will be sentenced to a custodial sentence in the proceedings.
What is the most common ground for refusing bail and what is the threshold for this ground
where court believes there are substantial grounds for believing D, if released on bail will;
- fail to surrender to custody
- commit an offence whilst on bail
- interfere with a witness in the case or otherwise obstruct the course of justice
(para 2(1) ground)
high threshold, not satisfied if court thinks D MAY do these things
what are the factors the court must consider when deciding whether a para 2(1) ground for refusing bail is satisfied
(a) the nature and seriousness of the offence (and the probable sentence the defendant will receive for it);
eg more serious offence with more serious sentence = more likely to fail to surrender to custody
(b) the character, antecedents, associations and community ties of the defendant;
eg. more previous offences = more likely D will offend again
eg. association with other criminals means more likely to offence again
eg. if witness lives with D, less likely to be granted bail as D may intimidate witness
eg. no community ties may mean no reason not to abscond
(c) the defendant’s record in respect of previous grants of bail in criminal proceedings; and
eg. if breaching conditions of ail previously, more likely to do again
(d) the strength of the evidence against the defendant
eg. strength of evidence may mean more likely for conviction to occur, more likely D will try to abscond from custod
when may bail be refused in relation to non imprisonable offences
extremely rare for bail to be refused in these circumstances
only may be refused if;
- D previously failed to answer to bail in past criminal proceedings and court thinks D would fail to surrender to custody here
- if D needs to be kept in custody for their own protection
- if D currently serving custodial sentence in respect of separate offence
- D previously granted bail in THESE proceedings and failed to answer, and court thinks substantial grounds D would abscond, commit offence, interfere with witnesses or obstruct course of justice
when may a court grant conditional bail
where conditions are necessary to;
(a) prevent the defendant from absconding;
(b) prevent the defendant committing a further offence whilst on bail;
(c) prevent the defendant interfering with witnesses or obstructing the course of justice;
(d) ensure that the defendant makes himself available for the purpose of obtaining medical or other reports;
(e) ensure that the defendant keeps an appointment with his solicitor; or
(f) ensure the defendant’s own protection or, in the case of a defendant aged under 18, for his own welfare or in his own interests.
What should defence solicitor do if the court refuses to grant unconditional bail
try and persuade the court that conditional bail should be granted
What are the most common conditions the court may impose in relation to bail
- surety
- security
- reporting to a police station
- remaining at specified residence
- curfew; remain at place of residence at specific times
- non communication with prosecution witnesses
- restriction on entering specified areas
- attending appointments with solicitor or probation service
- surrender of passport
How to decide whether a D will be granted bail
insert picture
what are the conditions attached to conditional bail designed to prevent
preventing D from;
- failing to surrender to custody
- committing an offence whilst on bail
- interfere with witnesses/obstruct course of justice
what is the procedure for applying for bail where the CPS objects to bail being granted
- CPS must provide D’s solicitor and court with all information it has relevant to court’s decision about bail ASAP
- CPS must state objection to bail and apply for D to be remanded in custody at magistrates court, using facts of the case, relevant factors such as previous convictions, character etc.
- D’s solicitor makes an application for bail on client’s behalf. Should respond to all CPS objections and evidence and suggest appropriate conditions if magistrates will not approve unconditional bail
- magistrates hear evidence from other persons called by defence in support of D’s application for bail eg. someone offering them accommodation, employer
- magistrates decide whether to remand D on bail or in custody. If conditional bail granted, conditions will be specified
is D’s solicitor permitted to make a full bail application at hearings following the initial hearing where bail was refused
D’s solicitor can make another full application for bail at the first hearing after the hearing at which court refused to grant bail
however, D’s solicitor not permitted to make a full bail application at each subsequent hearing
at subsequent hearings, can only submit a full application if defence makes arguments as to facts or law which the court has not already heard (ie. new facts or legal arguments emerge)
NB. if case committed to crown court for subsequent hearings, further applications for bail must be heard in crown court, not magistrates court
what is the magistrates’ duty to consider bail in relation to subsequent hearings
if D is still in custody, magistrates under a duty to consider bail and presumption in favour of bail still applies
however, D’s solicitor not permitted to make a full bail application at each subsequent hearing, only first hearing after hearing at which bail was initially refused
what is D’s right of appeal against a refusal of bail
where D refused bail by magistrates court, can appeal this at crown court
solicitor will usually wait until magistrates have refused bail twice on the full application before appealing decision to crown court
this gives max amount of chances to apply for bail
how can D’s solicitor appeal a magistrate’s court decision to refuse bail
- complete notice of application ASAP after magistrates’ court decision
- notice must be served on crown court and CPS
- notice must specify decision D wants crown court to make eg. grant bail or vary bail condition and each offence D has been charged with
- notice should also explain why crown court should grant bail (arguments of fact and law) and explain any further information or legal argument that has come to light, if any, since magistrates’ court decision
- should also set out any suggested condition to bail
if prosecution oppose an appeal for refusal of bail or varying of bail conditions, what should they do
immediately notify crown court and defence of reasons they oppose the appeal
when should an appeal for bail be heard
ASAP, and not later than the business day after it is served
however, crown court can vary these time limits
what documents must the crown court judge consider when deciding whether to accept or refuse an appeal of bail
- notice of application submitted by D’s solicitor
- certificate of full argument obtained from magistrates court and issued after hearings for bail
- record of D’s previous convictions if applicable
can the prosecution appeal a magistrates’ decision to grant bail to a D
yes, can appeal the magistrate’s decision in the crown court
requirements (time limits);
- oral notice of appeal must be given by prosecutor at the end of hearing during which court granted bail, and before D is released
- notice must be confirmed in writing and served on D no more than 2 hrs after telling court of decision to appeal
- crown court must hear appeal ASAP and not later than 2 business days after appeal notice is served
- if appeal occurs, D remanded in custody until appeal is heard
- this power of appeal should not be used by prosecutors just because they disagree with the decision, should only be used in cases of grave concern
what happens if a D remanded on bail fails to attend court to answer their bail
magistrates will issue warrant for their arrest with or without bail
warrant will either be backed with bail (where police will arrest D after hearing pending their next court appearance)
or
not backed with bail (more common); if this is the case, police must arrest D then keep them in police custody until they can be brought before the court
note; D arrested on Friday after court has finished sitting will be seen on Saturday morning. If arrested later on Saturday, D will be kept in custody until following Monday morning
what is a remand court
hearing where D who has failed to answer police bail and has been arrested will appear
may be charged with the offence of failing to surrender to custody if the CPS so decides
if D fails to answer court bail, same applies, but will be court’s decision whether to charge them with failing to surrender, not CPS
which offences can a D be charged with for failing to answer bail
- where D fails to surrender to custody without reasonable cause, guilty of the offence of absconding
eg. if D is late to hearing without reasonable cause
- where D fails to surrender to custody with reasonable cause, they will still be guilty for absconding unless they surrender to custody as soon as it is reasonably practicable
eg. where D injured and in hospital so cannot answer bail = reasonable cause, but must answer bail as soon as they are discharged if they do not wish to be charged with absconding
when is a court likely to make a further grant of bail to D after D fails to surrender to custody
if the D’s failure to surrender was due to a genuine misunderstanding, or if D voluntarily surrenders to custody
unlikely to be granted bail again if D wilfully failed to surrender and had to be arrested by police
what happens if a D breaches a condition of their bail
not a criminal offence
but, likely to have bail reviewed by magistrates, who may decide that failure to comply with conditions requires remand in custody
how will magistrates determine how to treat a D arrested under s7(3) bail act
2 stage approach;
- magistrates determine if there has been a breach (in practice, D will usually admit)
- if magistrates determine there has been a breach, they will decide whether D should be remanded in custody or on bail pending next hearing
- if breach was as a result of genuine mistake, magistrates may decide to make a grant of further bail, subject to more stringent conditions
