bail Flashcards
exam structure - BAIL
- s4 bail act - there is a general right to bail.
- para 1A - relevant?
- There are substantial grounds to believe (relevant exceptions sch.1, part.1, para2)
- failure to surrender
- commit offence while on bail
- interfere with witness
- Is para 2A relevant?
- Bail conditions appropriate?
FTS - nature and seriousness
- consider likely sentence? custody?
- if long imprisonable sentence - P argue D will abscond
- e.g. burglary at night with ransaking? serious?
- group attack? premeditated? serious injury to a person?
(D may have to concede seriousness - but could say D has attended trial for similar offence and served the sentence, or say D wants to clear his name)
FTS - character/antexedents
- previous convictions? specifically for FTS?
- drug user?
- rehab completed?
- argue CHANGED MAN
- community ties?
- if no permanent address/not know how long he’s been in the country = not tied
FTS - D’s record
has he fulfilled obligations before?
If yes, what is his explanation?
FTS - strength of evidence
D will argue evidence not strong enough anyway
- P’s case is weak
- confession weak?
- strong defence?
- only circumstantial evidence
- no forensic evidence
CWOB - details
esp:
- convictions for offences commited on bail
- when were those convictions?
- changed man?
- gang member?
- drugs?
- crime funds addiction?
IWW
esp:
- P: D knows where witness/victim works?
- D: just impose bail conditions to prevent collusion/IWW
bail conditions - appropriate for FTS
- report to police station
- tagging + curfew
- residence at home address
bail conditions - appropriate for CFOB
- not to go to certain areas
bail conditions - appropriate to IWW
- do not contact witnesses directly or indirectly
- require D to live somewhere away from the area
bail conditions - general
- residence at specified address
- report to local police station on reg. basis
- exclusion from certain area
- non-contact
- curfews and tagging
- bail hostels
- surrender of passport
- sureties (from 3P only)
- deposit (3P or D)
consequence of breach
D may be arrested without warrant and bail being withdrawn (NB. NOT criminal offence though unless D FTS at appointed date, time and place)
‘FTS’ - an offence
this is an offence
- if summarily convicted of this offence, offender is liable to imprisonment of up to 3m and/or an unlimited fine
- if dealt with in CC, treated as if he had been guilty of a criminal contempt of
court and is liable to up to 12 months’ imprisonment and/or an unlimited fine.
“substantial grounds”
not enough for magistrates to have subjective perception of one or more of these 3 risks
- must be SUBSTANTIAL GROUNDS
- Q of fact
- reps made by both sides (but neither calls witnesses/produces evidence usually)
- Mags can ask questions in this process (inquisitorial role)
allocation - when appropriate?
for E/W offences
- if plea before venue = no plea/not guilty
- mags decide whether it should be dealt with at MC or CC
allocation - exam structure
- PBV (s.17A MCA)
- s.19 MCA
- Allocation guidelines (explain test)
- Sentencing guidelines
- MC or CC?
if ALLOCATION RESULT = s.20 decision (retain)
court must explain to D that
- summary trial is more suitable
- D can consent to be tried summarily or jury if he wishes in CC
D can ask for indication of sentence
D must then decide on MC or CC
indication of sentence
tells D if he will be imposed a custodial or non-custodial sentence if he chose MC and plead guilty (court doesn’t have to do this)
after indication - ask D if he wants to change his plea
if D changes plea to guilty:
- MC proceeds to sentence if indicated non-custodial, this binds subsequent bench that sentences D
if D maintains not-guilty:
- D can then consent to trial in MC (case is adjourned) or elect to be tried by jury (case transferred to CC)
- indication given will not bind later courts
advantages to summary trial
- less expensive
- less time consuming (MC trials list for hearing more quickly than trials at CC and trial will be quicker)
- less severe sentences (MC limited to max of 6m imprisonment for 1 offence and 12 months if 2 or more E/W)
disadvantages to summary trial
- MC hear all evidence even if successfully excluded (no voir dire)
- higher conviction rate (MC tend to be more case hardened and may have tried D in past)
advantages of CC
- higher acquittal rate (jury might be more sympathetic to D)
- voir dire procedure (judge hears arguments to exclude evidence in absence of jury)
disadvantages of CC
- higher powers of punishment (CC can impose sentences up to statutory max)
- higher costs (might be liable to pay both prosecution and defence costs if convicted)
- slower (longer for case to come to trial and more formal procedures)
after D pleads not guilty to summary only charge (or MC accepts jurisdiction and D consents)
P and D proceed immediatly to case management hearing (to ensure case is ready for trial at appointed date)
- hearing involves completing case progression form
- Qs include: contact details, witnesses, estimated length of trial, any hearsay, special arrangements
stnadard directions
must be complied with unless MC directs otherwise
- concern issues pertaining to bad character evidence, hearsay, special measures to protect witnesses, disclosure, exprts
Case progression officer monitors directions
CPS and defence advocate must indicate a nominated person in their offices to be responsible for complying with directions on case progression form
CC trial
similar case management
- main case management hearing in CC is called plea and trial preparation hearing (PTPH)
- takes place usually 28 days after case sent to CC from MC
- at PTPH, D formally required to enter plea in the indictment
- if plea not guilty, judge makes directions re: preparation for subsequent trial
