Bail Flashcards
Adjournment
If cannot hear the conclude the case in one hearing the case will have to be adjourned.
Remand
If defendant is sent away and told to come back another day it is called a ‘remand’.
A defendant on remand is obliged to continue with the case.
Remand may either be served in custody or served in the community on bail.
Who applies for bail?
The prosecution must first raise an objection to bail.
The defence then applies for bail.
All cases commence in the magistrates’ court and so the first decision in relation to bail is made by that court (except for murder bail can only be granted by a CC Judge).
Defence and prosecution can appeal decisions on bail from the magistrates.
What is conditional bail?
Bail can be granted subject to conditions. Important for a defence advocate to consider what sort of conditions might alleviate the court’s concerns in relation to the defendant’s behaviour on bail.
Right to Bail
Bail Act 1976, s4: court must presume that a defendant is entitled to bail and it is only if an objection is properly made out that bail can be refused.
Because right to bail applies, the prosecution must make the first move and apply for the defendant to be remanded into custody.
What does the right to bail not apply?
Does not apply to:
- those appealing their conviction or sentence
- to defendants being committed for sentence from the MC to the CC
Big Three grounds
Bail Act 1976, Schedule 1, para 2: if the defendant is released on bail, 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
Prosecution only needs to show that these behaviours happening have substance and merit.
Bail: no real prospects
Bail should not be removed under one of the big three grounds where there are no real prospects of the defendant receiving a custodial sentence.
e.g. stole a banana
Special category bail
Charged with murder:
- if has previous conviction for murder, attempted murder, rape or serious sexual offence: may not be granted bail unless exceptional circumstances
- if not: may not be granted unless no significant risk of D causing an offence likely to cause physical or mental injury
Charged with attempted murder, rape, attempted rape, serious sexual offence, manslaughter:
- if has previous conviction for murder, attempted murder, rape or serious sexual offence: may not be granted bail unless exceptional circumstances
Charged with other offence with life in prison:
- If D was either already on bail and/or failed to attend having been on bail. D may not be granted bail unless there is no significant risk of further offences being committed or failure to attend
Need not be granted bail grounds
- Remand in custody would be for the defendant’s own protection
- the court has insufficient information to deal with the issue of bail so remands for short period
- the defendant is already serving a sentence in custody
Drugs and abuse: bail
Charged with an offence that suggests D would cause injury to a partner or family member:
- need not be granted bail for any imprisonable offence if the court believes that D would commit an offence on bail by engaging in conduct that would or would be likely to cause physical or mental injury to an associated person (spouse, partner, family member)
Charged with abuse of drugs:
- class A drug in D’s body
- offence relates to a Class A or was caused/motivated by D taking Class A drugs
Court may not grant bail unless there is no significant risk of D committing an offence on bail.
Cases where there has been a bail infringement
Defendant was on bail at the time of the alleged offence:
Indictable offence: court need not grant bail
Summary imprisonable offence: court need not grant bail if there are substantial grounds for believing D would commit further offences
D absconds whilst on bail: bail need not be granted again unless it is prior to conviction and there are no realistic prospects of the defendant receiving a custodial sentence
what are bail factors?
Not grounds in themselves but are mandatory considerations for the three main grounds and help court determine if the grounds are made out.
Bail factors
a) nature and seriousness of the offence and its likely sentence (long sentence = more temptation to abscond)
b) character of the defendant, antecedents, associations and community ties
- previous convictions which can make custodial sentence more likely
- character: personal circumstances such as drug addictions
- associations - friends with criminal records
- community ties: how easy is it for defendant to abscond and how much might D lose if they do abscond. e.g. married with a job might make them less likely to disappear
c) defendant’s bail record in the past - whether D has absconded in the past can be seen as indicative that D may do so again. e.g. tendency to commit bail offences
d) strength of the evidence: a defendant who knows there is a good chance of being acquitted is less likely to abscond than one who anticipates almost certain conviction.
Factors to support the grounds
- Failure to surrender
- Nature and seriousness (likely disposal)
- Character of the defendant, D’s antecedents, associations, and community ties
- D’s bail record in the past
- Strength of the evidence - Commit further offences
- Nature and seriousness
- character, antecedents, associations, community ties - Interfere with witnesses
- Nature and seriousness of the offence
- Strength of the evidence
