Bail and remands. Procedure of bail application Flashcards
Application Procedure.
Procedure for Bail Applications in Magistrates’ Courts.
A bail application is to be regarded as a preliminary hearing for the purposes of the CJA 2003, s. 51, and so the court may direct attendance through a live audio link or live video link.
A decision on bail cannot be made unless each party (and any surety directly affected by the decision) is present (in person or via live link) or has had an opportunity to make representations.
However, where the accused is in custody, bail may be considered in the absence of an accused who has waived the right to attend, or who was present when bail was refused on a previous occasion and who has been in custody continuously since then.
A bail hearing may take place in public or in private.
Assuming the presumption in favour of bail applies by virtue of the BA 1976, s. 4(1) (‘right for bail), the onus (responsibility/duty) is on the court to justify any refusal of bail in accordance with sch. 1 to the Act. This applies both when the accused first appears and at all subsequent appearances while remaining within the scope of s. 4(1) .
The question of bail is always a matter for the court.
However, when adjourning the case of an unconvicted accused to whom s. 4(1) applies and who is entitled to make an argued bail application under sch. 1, part IIA normal practice is to ask the prosecution if they have any objections to bail.
The prosecution representative then summarises the objections (or, as the case may be, states that there are no objections).
The CPS case file will contain information, supplied by the police, which sets out the objections to bail, if any, and the basis of those objections.
The prosecution advocate usually has little alternative but to base the objections on this information unless a police officer connected with the case is present in court and able to provide additional information.
The justices will normally be told of the accused’s previous convictions (including any convictions for failure to surrender to custody) when the prosecution give their objections to bail.
Following the prosecution objections, the defence representative (or the accused in person if unrepresented) may present the arguments for bail (whether conditional or unconditional).
Even where the defence choose not to make a bail application, it is submitted that the prosecution should present at least cursory objections to bail so that the court will be able to base a refusal on one or more of the reasons contained in sch. 1.
The question of bail is normally dealt with on the basis of submissions from the prosecution and defence.
A prosecutor must provide the court with all information in the prosecutor’s possession that is relevant to the question of bail.
Where the prosecution oppose bail, the prosecutor is required to specify each statutory exception to the presumption in favour of bail on which the prosecution rely, and each consideration the prosecution argue to be relevant.
There is no requirement for formal evidence to be given.
Either party may, however, adduce evidence in support of their respective arguments, e.g., a police officer to substantiate the objections to bail, or proposed sureties to further the application for bail.
Such witnesses give their evidence on the voir dire form of oath, to answer truthfully all such questions as the court may ask.
The prosecution will not normally reply to the application for bail by the defence.
However, the prosecutor does have a right to reply to the defence submissions if this is necessary to correct alleged mis-statements of fact in what the defence have said.
Having heard the prosecution objections to bail, and the answer of the defence to those objections, the court announces its decision on the grant or withholding of bail.
Right to Make Repeated Argued Bail Applications
An accused who has been remanded in custody may make a fully argued application at the next hearing, regardless of whether that application repeats arguments that were placed before the previous bench.
Unless the accused consents to being remanded while absent, the next hearing will take place within eight clear days.
Section 128A of the MCA 1980, which permits remands in custody of up to 28 days, applies only if the accused has already been remanded in custody for the offence on at least one previous occasion.
The wait between being refused bail on a first appearance and being able to argue again for bail on a second appearance is relatively short.
However, should that second argued application fail, at subsequent hearings, the court ‘need not hear arguments as to fact or law which it has heard previously’.
This is so even though at each hearing the court should nominally consider whether the accused ought to remain in custody
Paragraph 3 effectively entitles the magistrates to treat the finding of the previous bench (that there were grounds for refusing bail) as a form of res iudicata (denial of reconsideration of a matter already litigated).
They may therefore refuse to hear argument in favour of bail, and need consider the question only to the limited extent of satisfying themselves that the accused has exhausted the argued bail applications to which the accused is entitled as of right and that there has been no material change of circumstances since the last argued application to enable the matter to be reopened.
Certificates of Full Argument
Section 5(6A) applies where a magistrates’ court adjourns a case and remands the accused in custody after hearing a fully-argued bail application
In such a case, the court must issue a certificate confirming that full argument was heard if either the court has not previously heard full argument on a bail application made by the accused in the proceedings in question, or it has previously heard such argument but is satisfied that there has been a change in circumstances or that new considerations have been placed before it.
In a case where the court has heard a second or subsequent fully argued application on the basis of a change in circumstances or new considerations, the certificate must state what the change was.
The accused must be given a copy of the certificate.
The significance of the issue of a certificate of full argument is that the right to apply to the Crown Court for bail is dependent on it.
An adjournment during a summary trial includes an adjournment for reports after conviction, so the obligation to issue a certificate may arise if the accused is remanded in custody at that stage.
Moreover, the obligation to issue a certificate also applies where bail is refused on an adjournment for medical reports.
Appeal to the Crown Court
Options Open to an Accused Remanded in Custody or on Conditional Bail by Magistrates
An accused who has been refused bail by a magistrates’ court may apply for bail to the Crown Court. An appeal can also be made against a decision of a magistrates’ court to impose conditions on bail.
Procedure for Bail Applications in the Crown Court
Notice of Appeal
This applies when the accused wants to apply to the Crown Court for bail after bail has been withheld by a magistrates’ court or to appeal to the Crown Court after a magistrates’ court has refused an application by the accused to vary a condition of bail.
Written notice of the intention to make the application must be given to the magistrates’ court, the Crown Court and the prosecutor (and any surety affected or proposed) as soon as reasonably practicable after the decision of the magistrates’ court.
The notice must explain why bail should not be withheld, or why the condition of bail under appeal should be varied (as the case may be), should identify any further information or legal argument that has become available since the decision of the magistrates’ court and, where it is an application for bail, should attach a copy of the certificate that the magistrates heard full argument as to bail.
If the prosecution oppose the application, they must notify the Crown Court and the accused at once, and must serve notice of the reasons for opposing the application.
Unless the Crown Court directs otherwise, the application or appeal should be heard no later than the business day after notice of the application or appeal was served
The Hearing
The application may be heard in public or in private, however, such applications are often heard in private.
The hearing follows the pattern of a bail application in the magistrates’ court, with counsel for the prosecution summarising the objections to bail and counsel for the applicant responding to those objections.
If bail is granted to an accused who was refused it by magistrates at a remand hearing, the Crown Court may direct the accused to appear ‘at a time and place which the magistrates’ court could have directed’ and the recognizance of any surety shall be conditioned accordingly.
Any sureties required by the Crown Court may enter into their recognizances before, inter alia, an officer of the Crown Court, a police officer who is either in charge of a police station or of the rank of inspector or above, or the governor of the prison where the accused is presently detained.
Repeated Bail Applications in the Crown Court
Applies to bail applications in the Crown Court just as it applies to applications before the magistrates.
Therefore, if one application for bail has already been made to the Crown Court, a further argued application may not be presented unless there are fresh arguments or considerations to put before the court.
