Bail and remands. Failure to surrender to bail or breach of bail conditions Flashcards
Powers of the Court when a Bailed Accused Fails to Appear
Failure to Comply with Bail
Where an accused who has been granted bail in criminal proceedings fails to comply with the obligations imposed thereby, two main questions arise.
The first is how the court should ensure that the accused will attend court for the remaining stages of the proceedings;
the second is how the accused (and any sureties) will be dealt with in consequence of the breach of bail.
Powers of the Court when a Bailed Accused Fails to Appear
When a person who is on bail fails to surrender to custody in answer to bail, the court has a number of options.
(1) The court may issue an arrest warrant (often called a ‘bench warrant’), under the BA 1976, s. 7(1).
This applies whatever court the accused was bailed to attend and regardless of whether bail was granted by the custody officer at the police station or by the court itself at an earlier hearing.
The usual form of warrant simply orders that the accused be arrested and brought to court. However, at the court’s discretion, the warrant may be ‘backed for bail’ either with or without a requirement for sureties.
Where the accused fails to appear, a bench warrant will normally be issued. It should be noted that the Justices’ Clerks Rules 2005 sch. 1, para. 3, empowers a clerk to issue a warrant of arrest, whether or not endorsed for bail, for failure to surrender to court, where there is no objection on behalf of the accused.
(2) Instead of issuing a warrant, a magistrates’ court may adjourn and extend the accused’s bail under the MCA 1980, s. 129
Similarly, the Crown Court, in appropriate cases, may simply order that the case be stood out of the list and take no further action in respect of the accused (who will remain under an obligation to attend whenever the case is next listed).
Such a course of action is appropriate only where the court is satisfied that there is a good reason for the accused’s non-attendance (e.g., a doctor’s certificate has been sent to the court indicating that the accused is unfit to attend).
(3) It may be possible to proceed in the absence of the accused (though it should be borne in mind that if the offence is triable either way, a magistrates’ court may try the case only with the consent of the accused, and that consent must be given at a hearing at which the accused is present unless the court is satisfied that there is a good reason for absence and the accused is represented by a lawyer who consents to summary trial on behalf of the accused:
Breach of Bail Conditions
Under s. 7(3) of the BA 1976, where an accused has been bailed to attend a court, a police officer may arrest the accused without warrant prior to the surrender date if:
(a) the officer has reasonable grounds for believing that the accused is not likely to surrender to custody; or
(b) the officer has reasonable grounds for believing that the accused has broken, or is likely to break, any condition of bail; or
(c) a surety has given written notice to the police that the person bailed is unlikely to surrender to custody and for that reason the surety wishes to be relieved of any obligations.
Following arrest under s. 7(3), s. 7(4) stipulates that the person arrested must be brought before a magistrate as soon as practicable and, in any event, within 24 hours (excluding Sundays (s. 7(7)), and so a person arrested on a Saturday under s. 7(3) need not be brought before a magistrate until the following Monday).
The wording of s. 7(4) makes it clear that the person arrested must be brought before a single justice and the justice need not be sitting in a courtroom.
Where, however, the accused is arrested under s. 7(3) within 24 hours of the time appointed for surrender to custody, the accused must be brought before the court at which surrender to custody should have taken place.
D was arrested for breach of bail conditions. He was taken to the cells of a magistrates’ court within 24 hours of arrest but was not brought before a magistrate until two hours after the expiry of the 24-hour time-limit.
The Divisional Court held that the detention after 24 hours was unlawful, as s. 7(4) requires the defendant to be brought before a justice of the peace (not merely brought within the court precincts or to the court cells) within 24 hours of arrest.
The time-limit under s. 7 is a strict one. It follows that the justice is required to complete the required investigation and decision-making in relation to the matter within the 24-hour period. If the justice fails to do so, the continued custody of the accused becomes unlawful from the moment the 24-hour period has expired.
If the justice purports to remand the accused in custody after that time, the order is ultra vires and unlawful
Arrest Following Grant of Conditional Bail by the Crown Court
Where an accused has been sent for trial to the Crown Court, and is subsequently arrested for breach of a bail condition, the jurisdiction to deal with the accused under s. 7 of the BA 1976 must be exercised by a magistrate.
Thus, the magistrate must deal with the matter; there is no power to commit the accused to the Crown Court to be dealt with.
The idea of remanding in custody to the Crown Court a defendant who breaches a condition of his bail so that the Crown Court can then deal with bail thereafter is misconceived.
The appropriate course for the magistrates to take is to remand or commit the defendant to the Crown Court until his trial or further order. If the superior court wishes to grant bail, that can be done.
Any order made by the superior court would then override the decision of the magistrates. But the making of an order to a fixed date (as was done in this case) was inappropriate.
even after the accused has been sent to the Crown Court for trial, an alleged breach of a bail condition must be dealt with by a magistrate (since that is what is required under the BA 1976, s. 7(4)).
If the magistrate finds that there has been no breach of a bail condition, the accused will remain on bail as before.
If the magistrate finds that there has been a breach of bail, bail may be allowed to continue as before, or more stringent conditions may be imposed.
If the magistrate finds that the accused has indeed breached a bail condition, and decides that the withholding of bail (as opposed to granting bail but on more onerous conditions) would be appropriate, the magistrate should revoke bail and remand the accused in custody until the date fixed for the trial or further order of the Crown Court.
It is then open to the Crown Court to grant bail should the accused then apply for bail to the Crown Court.
Procedure where the Accused is Brought before the Court under s. 7
The question for a magistrate before whom a person is brought under the BA 1976, s. 7, is whether that person is likely to fail to surrender to custody, or else has broken or is likely to break any condition of bail (as the case may be).
If of the opinion that any of those matters is established, the magistrate may remand the accused in custody
Alternatively, the magistrate may grant bail subject to different conditions. In most cases, where bail is granted under s. 7(5), more onerous conditions will be imposed.
The power to remand in custody under s. 7(5) is subject to the proviso contained in s. 7(5A). This applies where an accused who has attained the age of18 was released on bail, and has not yet been convicted in the current proceedings.
In such a case, a magistrate cannot withhold bail under s. 7 if it appears that there is ‘no real prospect that the person will be sentenced to a custodial sentence in the proceedings’.
Where the magistrate is not of the opinion that the accused is likely to fail to surrender to custody or has broken, or is likely to break, a condition of bail, bail must be granted on the same conditions (if any) as were originally imposed.
Nature of a s. 7 Inquiry
There is no need for the court to hear evidence; instead it can base its decision on representations from the prosecution and the defence.
In considering whether the accused has broken any condition of bail, a justice is entitled to rely upon hearsay material, so long as the material is properly evaluated.
D was arrested and brought before the justices for failing to comply with the bail conditions. He sought to raise a defence of reasonable excuse; however, the justices ruled that no such defence exists under the BA 1976, s. 7.
s. 7(5) requires a two-stage approach.
First, the justice must determine whether there has been a breach of a bail condition (if there has been no breach of a condition, then the accused is entitled to be granted bail on precisely the same conditions as before);
Secondly, if there has been a breach, the justice is obliged to consider whether or not the bailed person should be granted bail again.
In carrying out the first stage of that process, the justice must act fairly and give the accused a chance to answer the allegation of breach.
That does not, however, include an inquiry as to whether the arrested person had any reasonable excuse for breaching bail (since s. 7 makes no mention of such a defence and, indeed, s. 7 does not create a criminal offence).
The second stage (assuming that the justice is satisfied that there has been a breach) is the point at which the reasons for the breach of bail become relevant. At that stage, the justice must consider all the issues relating to ‘reasonable excuse’ when deciding whether or not to grant bail. The breach of bail will be a factor, but only one factor, as to whether the bailed person is granted bail again.
No Separate Offence under s. 7
It should be emphasised that the BA 1976, s. 7, merely confers a power of arrest. It does not create a separate offence
Failure to Surrender
The BA 1976, s. 6, creates the offence of absconding. Under s. 6(1), a person who has been released on bail and who fails, without reasonable cause, to surrender to custody, is guilty of an offence.
The burden of showing reasonable cause is on the accused.
Moreover, a person who had reasonable cause for failing to surrender on the appointed day nevertheless commits an offence by failing to surrender as soon after the appointed time as is reasonably practicable.
It follows that an accused who has a reasonable excuse for failing to attend court must surrender to custody as soon as reasonably practicable after that excuse ceases to apply (and commits an offence under s. 6 if not).
An offence under s. 6(1) or (2) is ‘punishable either on summary conviction or as if it were a criminal contempt of court’.
An offender summarily convicted of an offence under s. 6 is liable to imprisonment for up to three months and/or a fine of any amount.
A magistrates’ court which has convicted the offender of a s. 6 offence may commit the offender to the Crown Court for sentence if either it considers that the offence merits greater punishment than it has power to inflict, or it is sending the offender for trial to the Crown Court for another offence and it considers that the Crown Court should deal with the absconding as well.
An offender who is committed to the Crown Court for sentence, or who is dealt with in the Crown Court as if guilty of a criminal contempt, is liable to imprisonment for up to 12 months and/or an unlimited fine.
Procedure for Prosecuting Offences under the Bail Act 1976, s. 6
The BA 1976, s. 6(5), provides that an offence under s. 6(1) or (2) is punishable either on summary conviction or as if it were a criminal contempt of court.
Where it appears that an accused has committed an offence under the BA 1976, proceedings should be initiated either by the court of its own motion or on application by the prosecutor.
The charge should be put to the accused, who should be asked to enter a plea.
The burden of proof is on the accused to prove he or she had reasonable cause for failure to surrender to custody .
Where bail was granted by a magistrates’ court on sending the accused to the Crown Court for trial or sentence, the trial for the BA 1976 offence should take place in the Crown Court. The Crown Court judge will sit alone, without a jury.
