Bail and remands. Prosecution Right of Appeal against Bail Flashcards
Prosecution Right of Appeal against Decision to Grant Bail
The Bail (Amendment) Act 1993 confers upon the prosecution the right to appeal (i) to the Crown Court against a decision by a magistrates’ court to grant bail and (ii) to appeal to the High Court when the Crown Court grants bail other than in the context of an appeal against the grant of bail by a magistrates’ court.
Under s. 1(1) to (3), this right is limited to cases where:
(a) the accused is charged with, or convicted of, an offence which is (or would be in the case of an adult) punishable by imprisonment; and
(b) the prosecution is conducted by or on behalf of the DPP (this includes prosecutions conducted by the CPS), or by a prosecutor specified in the schedule to the Bail (Amendment) Act 1993 (Prescription of Prosecuting Authorities) Order 1994 hich includes the SFO; the Department of Business, Energy and Industrial Strategy; and the Department for Work and Pensions; and a universal service provider within the meaning of the Postal Services Act 2011; and
(c) before bail was granted, the prosecution made representations that bail should not be granted.
Procedure
The Bail (Amendment) Act 1993 lay down the procedural requirements with which the prosecution must comply in order to exercise its right.
First, they must give oral notice of appeal at the conclusion of the proceedings in which bail was granted, and before the accused is released from custody.
this requirement was held to be satisfied where notice was given to the court officer about five minutes after the court rose but before the accused had been released from custody.
The Divisional Court held that a delay of five minutes or so, especially where an accused had not yet been released from custody, did not bring the case into a category in which it could be said that oral notice was not given at the conclusion of the proceedings.
Moreover, since notice can properly be given to the court officer, it is not necessary that the justices should themselves be in court.
Following the oral notice of appeal, the accused must be remanded in custody until the appeal is determined or otherwise disposed of.
The oral notice given under s. 1(4) must be confirmed in writing, served on the court and the accused within two hours after the conclusion of the proceedings otherwise the appeal is deemed to be disposed of and the accused will be released on bail on the terms on which it was granted by the court when it granted bail.
The prosecutor served the written notice of appeal three minutes late.
The Divisional Court held that Parliament did not intend that the time-limit for serving notice of appeal should defeat an appeal if the prosecution had given itself ample time to serve the notice within the two-hour period, had used due diligence to serve the notice within that period, and the failure to do so was not the fault of the prosecution but was due to circumstances outside its control.
Furthermore, the Court said that the delay of three minutes had not caused D any prejudice, since he knew at the conclusion of the proceedings before the magistrates that the prosecution was exercising its right of appeal and he knew that he was being detained in custody as a result of the oral application for him to be remanded in custody until the appeal was disposed of.
D had been granted bail despite opposition from the prosecution; the prosecutor gave oral notice of an intention to appeal the granting of bail, and written notice of the intention to appeal the granting of bail was given to the court officer at the magistrates’ court approximately an hour later.
However, the written notice was not served on D because he had (in error) already been sent to the prison where he was to be held pending the disposal of the prosecution appeal against the grant of bail; attempts by the court to secure service of the notice on D at the prison were unsuccessful.
The question to be decided was whether the Crown Court had jurisdiction to hear the appeal against the grant of bail to D, given that the notice of appeal had not been served on him.
the question to be decided as ‘whether s. 1(7) should be construed so as to deprive the appellate court of jurisdiction to reverse a decision by the magistrates to grant bail if the prosecution could not have served the defendant within the two hours, however hard it tried’.
…it cannot have been Parliament’s intention that the Crown should lose the opportunity to reverse a decision that was wrong in principle, with the result that a defendant who might abscond or commit further offences or interfere with prosecution witnesses was released on bail, if the reason why the notice of appeal was not served in time (or indeed at all) was outside the prosecution’s control.
The Court based its conclusion in part on the use of the word ‘fails’ in s. 1(7):
The word ‘fails’ in this context carries with it an implication of fault, and would not generally be used to describe the situation in which a person is unable to do something. One dictionary definition of ‘fails’ is ‘to neglect to do something’, and in our judgment that is the sense, rather than the wider sense of ‘being unsuccessful in achieving one’s goals’, in which the word should be understood in this specific context.
The appeal must be heard (by the Crown Court or the High Court, as the case may be) within 48 hours, excluding weekends and public holidays.
The appeal had to commence literally within 48 hours of the moment upon which oral notice had been given.
