Bail Flashcards
What is adjournment?
Where D is presented to the court, and court cannot conclude the case in one hearing, case will be adjourned.
What is remand?
When a D is sent away and told to come back another day, it is called a remand. Remand may be served in custody or in the community on bail
Who applies for D to be remanded in custody?
The prosecution
What must the prosecution do if they wish for D to be remanded in custody?
They must present objections to bail, due to the presumption in favour of bail
When should bail be applied for?
Magistrates court will deal with bail at first hearing so should be dealt with then
What is conditional bail?
Bail that is granted subject to D meeting certain conditions
Does the right to bail still apply after conviction but before sentencing?
Yes
When does the right to bail become absolute?
When the case has not progressed according to the time limits
When does the right to bail not apply?
- to those appealing their conviction or sentence or
- those being committed for sentence from the Magistrates’ Court to the Crown Court
NB bail can be granted in these case, just presumption does not apply
How many grounds of objections to bail does the prosecution have to make out?
One
What effects could conditions have on ground of objection to bail?
If conditions on bail would alleviate the concerns about D’s behaviour such that the concerns about the grounds are no longer ‘substantial’ then D should be granted conditional bail
What are the three main grounds for objecting to bail for indictable offences?
There are substantial grounds for believing that the defendant would either:
- fail to attend a subsequent hearing (failure to surrender to custody)
- commit further offences on bail; and/or
- interfere with witnesses or otherwise obstruct the course of justice eg witness intimidation or destruction of evidence
What needs to be made out for there to be substantial grounds for believing D would do one of the prohibited things?
- not a high test
- must just be show that fear of behaviour happening has substance and merit
- factual test
- parties will make submissions and magistrates will ask questions
When will bail not ordinarily be granted for an indictable offence?
When there is no real prospect of D receiving a custodial sentence
When will bail not be granted where D is being tried for a summary offence?
When D breaches a condition of that bail in proceedings or has a conviction for failing to surrender in the past
What grounds are for D need not be granted bail?
- a remand in custody would be for D’s own protection
- the court has insufficient information to deal with the issue of bail so remands D in custody for a short period for the production of sufficient evidence
- D is already serving a sentence in custody
What are the role of factors in deciding whether bail should or should not be granted?
Factors are not grounds themselves but help the court in determining the grounds are made out
What factors are to be considered?
- the nature and seriousness of the offence and the likely disposal (ie sentence) - are they likely to receive a long sentence = greater temptation to abscond
- the character of D, D’s antecedents, associations and community ties - previous convictions that make custodial sentence more likely, associations may include friends with criminal records, community ties = closer linked to community less likely to abscond
- D’s bail record in the past
- the strength of the evidence
What conditions can the court impose on bail?
Any such conditions that appear necessary
Condition must be relevant, proportionate and enforceable
What conditions may be attached to bail?
- residence at given address
- curfew
- reporting to a local police station at given times
- surety
- security
- restriction on where a defendant may go during bail
- restriction on who the defendant might have contact with during bail
- electronic monitoring (tagging)
- bail hostels
- surrender of passports
How can bail conditions be varied?
On application by defence or prosecution with advance notice to other party.
Application should be made to court which granted bail (or Crown court if the accused has been sent there for trial or committed for sentence)
If parties agree of variation there will be no need for hearing
What happens if D breaches bail conditions?
D does not actually commit an offence but there is a power for them to be arrested.
D will then be brought before magistrates court who will either impose more conditions or withdraw bail ie D will be remanded in custody
What is the only bail breach that is a criminal offence?
Failing to surrender without reasonable cause.
Punishable summarily by up to three months’ imprisonment and/or an unlimited fine or 12 months and/or an unlimited fine on indictment
What is the general rule in relation to how many attempts a person may have in trying to get bail?
Two attempts at magistrates’ court and one attempt on appeal to Crown court
What right to bail attempts does a person have if their trial is to be heard in the Crown court?
One attempt at Magistrates’ (unless murder) and further application by right at crown court
If D is appealing decision not to grant bail from Magistrates court to crown court what do they need?
Certificate of full argument from magistrates’ court.
When a bail appeal be heard?
Week after first magistrates appeal
One business day after an appeal notice is served in crown court
Once D has had two attempts at bail in magistrates and one at crown court can they appeal again?
No - unless change in circumstances
Can the appeal process for bail be sped up?
Yes rather than week can be shortened to one business day for crown court appeal in urgent cases
When can the prosecution appeal against bail?
- prosecution must have opposed bail originally
- offence must be punishable by imprisonment
- prosecution indicates orally at the hearing when bail is granted that they will appeal (D is then held in custody)
- intention to appeal is confirmed in writing and served on the court and defence within two hours
- appeal is head within 48 hours - excluding weekends
- appeal is heard by Crown court judge (or high court judge if appeal is from crown court)
What are the time limits for custody whilst awaiting trial?
- 56 days for trials in the magistrates’ court of summary only or either-way offences
- 182 days for trials in the crown court of indictable only or either-way offences, less any days spent in custody prior to the case being sent to the Crown Court
What must happen before the expiry of custody time limits?
Trial must commence
When is a trial deemed to commence?
- magistrates court - start of the trial is defined as when the court begins hearing evidence from the prosecution
- crown court - start of the trial is defined as when a jury is sworn in
What will happen on the expiry of time limits if D is in custody?
D will be released unless prosecution applies to extend time limits and can show that it has acted with ‘all due diligence and expedition’ and that there is ‘good and sufficient cause’ to have D further remanded into custody
If trial is to take place in the magistrates court, how long can their first remand be?
8 clear days
What happens after the 8 clear days of first remand?
Another bail application can be made.
After that D can be held on remand for 28 days
