Bail Flashcards
In what three ways can a defendant be remanded?
A remand in custody
A remand on bail (with conditions)
A remand on unconditional bail
How do remands in custody pre-conviction work? What are the relevant time limits?
1) Basic rule is that D cannot be remanded in custody for more than 8 clear days at a time
2) Court can remand 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
3) The overall maximum period of remand in custody (normally referred to as the custody time limit) in the magistrates’ court is 70 days before trial for an either- way offence and 56 days before trial for a summary-only offence
- P can apply to extend this – to succeed, they need to show, on balance of probabilities, there is good and sufficient cause to do this and that it has acted with due diligence and expedition
- If granted, D can appeal to CC
- If not granted, P can appeal to CC
- Once time limit expired, D must be released on bail until trial
4) D will usually be kept at prison or remand centre
When will the Magistrates’ Court not be able to remand a defendant in custody pre-conviction?
MC won’t be able to remand D in custody before their case is dealt with where:
- D is 18 or over
- D has not been convicted in these proceedings
- Appears there is no real prospect that D will receive a custodial sentence
How do remands on bail pre-conviction work? Does the case being committed to Crown Court change anything?
D on bail may be remanded prior to conviction for any period of time, subject to their consent
D committed to CC for sentence or for trial, may be remanded in custody or on bail until cases comes before CC
How do remands after conviction work?
D may be remanded in custody before sentence for successive periods of not more than 3 weeks
D may be remanded on bail for successive periods of not more than 4 weeks
For what types of defendant is there a presumption of bail?
(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
Where does the presumption of bail not apply?
(a) those who have been committed to the Crown Court for sentence; or
(b) those who are appealing against conviction or sentence
For what types of offence (where D is charged with them or has previously been convicted of them) will bail only be granted in exceptional circumstances?
(a) murder
(b) attempted murder
(c) manslaughter
(d) rape
(e) attempted rape
(f) a number of other serious sexual offences
- D will have to convince why bail should be granted, rather than P arguing why it should be withheld
For an offence triable only on indictment or an either-way offence, what are the grounds or situations in which bail may be refused?
1) D may not be granted bail where court is satisfied there are substantial grounds for believing D, if released on bail, would:
- (a) fail to surrender to custody, or
- (b) commit an offence while on bail, or
- (c) interfere with witnesses or otherwise obstruct the course of justice
2) Also, may not be granted if:
- D should be kept in custody for their own protection (child/young person)
- Court has insufficient information to decide re bail
- D, when previously released on bail, was arrested for absconding
What factors will the court look at to determine if there are ‘substantial grounds’ on which to refuse bail?
It is a high bar for the prosecution to prove
1) Nature and seriousness of the offence + probable sentence
- Where offence serious + evidence strong, CPS may argue D will abscond to avoid a potential prison sentence
2) Character, antecedents, associations and community ties of D
- Reference to previous convictions + concern they may offend when on bail; relevant if reason for offending is ongoing (theft to fund drug addiction) or if they have committed offences on bail before
- D may commit further offences on bail if associated to other criminals or if a witness is known to D, to prevent interference
- If D is unemployed, no fixed abode etc, D may abscond
3) D’s record with regards to previous grants of bail
- D has previous convictions for absconding
4) Strength of evidence against D
For a summary only offence, what are the situations in which bail may be refused?
May be refused only on one or more of the following grounds:
- (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) D’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
For a non-imprisonable offence, what are the situations in which bail may be refused?
Rare for bail to not be granted, but court may refuse only if:
- D previously absconded on bail in other proceedings and they believe D would do so here
- D needs to be kept in custody for their own protection
- D serving a custodial sentence for a separate offence
- D absconded or broke conditions of bail earlier in same proceedings and there are substantial grounds to believe D would fail to surrender to custody, commit an offence or interfere with witnesses if released on bail again
What type of bail will be granted if there are no substantial grounds?
Unconditional bail
If unconditional bail might not be appropriate due to substantial grounds or some other reason, bail may be granted subject to conditions.
What are the various aims of bail conditions?
Prevent absconding
Prevent commission of further offences on trial
Prevent interference with witness or obstruction of justice
Ensure D is available for purpose of obtaining medical or other reports
Ensure D keeps an appointment with their solicitor
Ensure D’s own protection/welfare
How do ‘sureties’ work as a bail condition and what is their aim?
To prevent absconding
Person enters a promise to pay money and is obliged to use every reasonable effort to ensure D attends court
If D fails to answer bail, ‘surety’ must explain why they should not pay over the sum and court determines if some or all of it should be paid
How does a ‘security’ work as a bail condition and what is its aim?
To prevent absconding
D deposits a sum with court, forfeited if D doesn’t answer bail
Need a fair amount of money for security and sureties to be imposed
How does reporting to the police station work as a bail condition and what is its aim?
To prevent absconding and further offences
D reports to local police station on regular basis
How does ‘residence’ work as a bail condition and what is its aim?
To prevent absconding and further offences
D has to reside at a specified address and police may visit it to check
How does curfew work as a bail condition and what is its aim?
To prevent further offences
D must remain at place of residence during specified hours
They may be electronically monitored (tagged)
What are some of the other bail conditions that may be imposed?
Non-communication with P’s witnesses
- To prevent further offences and interfering with a witness
Restriction on entering specified areas
- To prevent further offences and interfering with a witness
Attending appointments with solicitor
Surrender of passport
- To prevent absconding – only appropriate in serious cases
When might electronic monitoring be used?
Electronic monitoring monitors compliance with another condition and can only be imposed if:
- Without it, person wouldn’t be granted bail and
- The necessary arrangements for EM are in place
High threshold for imposition
If the substantial grounds cannot be removed by the imposition of conditions, what will happen?
Court will refuse bail and will remand D in custody
What is the procedure for applying for bail, where CPS objects to it being granted?
(Remember, there is generally a presumption of bail)
Where CPS objects to grant of bail:
- CPS must ASAP provide D’s solicitor and court with all material information
- CPS states its objection and applies to MC for D to be remanded in custody; outlines grounds for objection and details D’s previous convictions (if any)
- D’s solicitor will make an application for bail on D’s behalf and suggest appropriate conditions
- MC may hear evidence from others in support of bail (prospective employer of D or someone willing to provide D with accommodation)
- MC decides to remand in custody or on bail (with necessary conditions)
If granted, P can appeal to CC judge in chambers (if offence imprisonable)
If not granted, D can appeal against refusal to CC judge in chambers
- Record of MC decision and reasons for refusal/any conditions are recorded and a copy given to D (certificate of full argument)
How are further applications for bail made, if it is initially refused?
1) If bail refused, MC must consider bail at any subsequent hearing if D still in custody and presumption still applies
2) D’s solicitor can only make a full application for bail at the 1st subsequent hearing (using same arguments if they wish)
- They can only make a further bail application if they can raise an entirely new legal or factual argument as to why bail should be granted
3) When the case has been sent to the CC, MC no longer has jurisdiction to hear a further bail application
How can D appeal against a bail decision?
D’s solicitor makes a notice of application (sent to CC, MC and CPS) and explains why bail should be granted/conditions varied - no time limit on D appealing bail
Appeal heard before a CC judge in chambers who has seen notice, certificate of full argument and record of previous convictions (if any)
CPS and D’s solicitor make representations and D can use the same facts in the appeal (unlike when applying beyond a second bail application)
They may refuse or grant, with or without bail conditions
How can P appeal against a bail decision?
If bail granted to D who has been charged with an imprisonable offence, CPS can appeal to a CC judge in chambers
Oral notice must be given by the prosecutor at the end of the hearing during which the court granted bail; and before the defendant is released from custody.
This notice must be confirmed in writing and served on the defendant not more than 2 hours after telling the court of the decision to appeal.
The CC must hear the appeal as soon as possible and, in any event, not later than 2 business days after the appeal notice was served (and this takes place as a re-hearing)
D remanded in custody until appeal heard
P appeal should only happen ‘in cases of grave concern’
What happens if D fails to surrender to bail (absconds)?
1) If D absconds, MC will issue a warrant for their arrest, either backed by bail or not
- If not backed by bail, D arrested and kept in police custody until next hearing before MC
Whether they are charged with failing to surrender to custody is the CPS’s decision at this next hearing, or the court’s if they granted bail
2) Two offences with which D may be charged:
- (a) If the defendant fails without reasonable cause to surrender to custody, they will be guilty of the offence of absconding, contrary to s 6(1) - even a half hour delay can give rise to a charge
- (b) 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
3) D may be sentenced right away or at the end of the substantive proceedings; usually ASAP
What happens if D breaches a bail condition?
1) Breaching a bail condition like curfew is not a criminal offence, but their bail is likely to be reviewed by MC
2) Police officer has power to arrest a person if they reasonably believe:
- They are not likely to surrender to bail; or
- They have broken/likely to break their bail conditions
2a) If D arrested this way, they are detained in police custody and brought before MC within 24 hours
2b) MC holds a ‘breach trial’ to determine if there was or was not a breach of bail conditions
2b) MC then decides to remand in custody or grant bail again (with/without conditions) - two stage process:
- 1) MC determines if there is a breach of bail conditions
- 2) If there was a breach of bail conditions, they decide whether to remand in custody or bail
