Bail and remands - syllabus area 3

Question 1

when may a magistrates’ court adjourn the proceedings?

Answer 1

at any stage before the case is sent to the CC for trial or before (or during) a summary trial - D5.22

Question 2

How can one challenge the grant or refusal of an adjournment?

Answer 2

by way of judicial review - D5.27

Question 3

what must the court do when adjourning the the trial?

Answer 3

the court may fix the time and place at which the trial is to be resumed, or unless it remands the accused, leave the time and place to be determined later by the court - D5.29

Question 4

In what two ways can the magistrates’ court remand a person?

Answer 4

they can remand in custody or remand on bail in accordance with the Ba 1976 - D5.30

Question 5

on adjourning the proceedings for an either way offence the court must remand the accused in custody or bail unless what?

Answer 5

unless the accused first appeared in answer to a summons or requisition (as opposed to being brought before the court in custody or appearing in answer to police bail) and has not been remanded at an earlier hearing - D5.30

Question 6

Magistrates may exercise their discretion and adjourn without remanding the accused in what circumstances?

Answer 6

• at all summary offences up to conviction; and at appearances for either way offences up to either a determination for trial on indictment or summary conviction, provided the accused:

first appeared in answer to a summons or requisition (as opposed to being brought before the court in custody or appearing in answer to police bail) and has not been remanded at an earlier hearing - D5.30

Question 7

Does an accused commit an offence if they are not remanded and they fail to appear on the date to which the case is adjourned?

Answer 7

they commit no offence, but it may be possible either for an arrest warrant to be issued or for the proceedings to be conducted in the absence of the accused D5.30

Question 8

Does an accused who is remanded on bail and fails to surrender to custody commit an offence?

Answer 8

yes, an accused who fails without reasonable cause to surrender to custody commits an offence under the BA 1976 - D5.30

Question 9

What is the maximum period for which a magistrates’ court may remand an accused in custody?

Answer 9

eight clear days - D5.30

Question 10

A person who is brought before the court may be remanded again. true or false?

Answer 10

true - D5.32

There may be several remand hearings before a case is sent to the CC or the commencement of summary trial.

Question 11

what limits the number of remands that can be given?

Answer 11

the only limit on the number is the general discretion of the magistrates to refuse an adjournment if it would be against the interests of justice - D5.32

Question 12

what other power does the court remanding an accused have?

Answer 12

the court remanding an accused may order that for subsequent remands, the accused be brought before a different magistrates’ court nearer to the prison where the accused in confined on remand - D5.32

Question 13

when can the accused be remanded for a period longer than eight clear days?

Answer 13

if the remand is on bail and both the accused and prosecution agree to a longer period of remand - D5.36

Question 14

Maximum period an accused charged with an indictable offence may be held in the magistrates’ custody between first appearance and committal proceedings?

Answer 14

70 days D15.9

Question 15

Maximum period between first appearance and summary trial (if the offence is triable either way and the court is to try the case summarily) ?

Answer 15

70 days

unless the decision for summary trial is taken within 56 days, then it reduces to 56 days - D15.9

Question 16

Maximum period of remand for summary trial?

Answer 16

56 days -D15.9

Question 17

maximum period between committal and trial on indictment?

Answer 17

112 days - B15.9

Question 18

Maximum period of remand for multiple committals ?

Answer 18

112 days separately in respect of each offence

Question 19

where sent for trial under the CDA 1998, s.51, what is the maximum period?

Answer 19

182 days between the date the accused is sent for trial to CC and the start of trial

from the maximum, the court must deduct any period during which the accused was in custody by the magistrates - D15.9

Question 20

maximum limit for retrial directed by the court of appeal?

Answer 20

112 days from the date of preferment by the court of appeal

Question 21

time limit where proceedings are by way of voluntary bill?

Answer 21

112 says from the date of preferment of the bill - D15.9

Question 22

what happens in a custody time limit expires before completion of the stage of proceedings in question?

Answer 22

the accused must be granted bail , in relation to the offence the time limit relates. - D15.18

where the CC is notified that the 112 day limit is about to expire, the accused must be bailed as from the expiry of the time limit, subject to a duty to attend for trial

the regulations do not expressly deal with the procedure for bailing an accused who has the benefit of the 70 day limit

Question 23

where may the crown court or the magistrates extend the limit?

Answer 23

if satisfied that:

• prosecution has acted with all due diligence and expedition
• and that there is a good and sufficient cause for doing so - D15.33

an extended time limit may be further extended

Question 24

when should extension for time limit be addressed?

Answer 24

at the time the trial date is fixed - D15.33

Question 25

Asides from magistrates’ power to grant bail of adjournment, when can bail be granted?

Answer 25

for the period of remand for reports ie after summary conviction - D7.2

Question 26

can a person charged with murder be granted bail?

Answer 26

only by order of a Crown Court judge - D7.2

Question 27

A person charged with murder in the magistrates court must be committed to the crown court, true or false?

Answer 27

True. A crown court judge must then make a decision about bail as soon as reasonably practicable , and in any event within 48 hours, beginning with the day after the day on which the person appears before the magistrates court - D7.4

Question 28

Who are those who have a rebuttable presumption in favour of bail?

Answer 28

those who appear before the CC or magistrates’ court in the course of or in connection with proceedings for an offence, or applies to the court for bail

• those who have been convicted of and offence and their case is adjourned for reports before sentencing
• those who have been brought before the court under the SA 2020, sth 10, for alleged breach of a requirement of a community order - D7.6

Question 29

Can an accused pending appeal against conviction and/or sentence rely on the bail presumption?

Answer 29

no, neither can an accused committed to the CC for sentence following conviction from the magistrates court.

they may be granted bail but at the discretion of the court - D7.7

Question 30

what happens when a person who had been on bail pleads guilty at the plea before venue hearing?

Answer 30

the usual practice should be to continue on bail, even if it is anticipated a custodial sentence will be imposed. - D7.7

unless there is a good reason to remand in custody, bail continues.

Question 31

would the court grant bail if there is a previous conviction for murder, attempted murder, manslaughter, rape, attempted rape or other offences under the SOA 2003?

Answer 31

No, the court would not grant bail, except it is of the opinion that there are exceptional circumstances which justify it -D7.8

Question 32

An accused charged with murder will not be granted bail unless what?

Answer 32

unless the court is of the opinion that there is no significant risk that the accused will if released on bail, commit an offence that would be likely to cause physical injury or mental injury to any other person - D7.11

Question 33

in what circumstances can the court deny bail to an unconverted accused charged with an imprisonable offence and triable on indictment?

Answer 33

if the court is satisfied that there are substantial grounds for believing that the defendant, if released on bail (whether subject to conditions or not) would:
fail to surrender to custody or
commit an offence while on bail or
interfere with witnesses or otherwise obstruct the course of justice, whether in relation to himself or any other person - D7.13

Question 34

The rules in relation to risk of absconding which permits the court to deny bail does not apply where?

Answer 34

when the accused is 18, has not been convicted of an offence in those proceedings, and it appeals to the court that there is no real prospect of custodial sentence in the proceedings - bail cannot be withheld on any of the previously mentioned grounds - D7.16

Question 35

what factors should the courts consider before deciding whether to refuse?

Answer 35

• the nature and seriousness of the offence and the probable method of dealing with the offender for it
• the character, antecedents, associations and community ties of the accused
• the accused’s record for having answered bail in the past
• the strength of the evidence against the accused
  if the court is satisfied that there are substantial grounds for believing that the accused would commit an offence while on bail, the risk that the accused may engage in conduct likely to cause physical or mental injury to anyone else - D7.17

Question 36

What are other grounds for withholding bail?

Answer 36

risk of injury to an associated person, where the accused is already on bail for another offence, for the accused’s own protection, where the accused is already serving a custodial sentence for another offence, where the court has insufficient information, where the accused has absconded in the present proceedings, where the accused is charged with murder - D7.24

Question 37

Where the accused is 18 or over, they may not be granted bail in relation to abuse of drugs offences in three circumstances:

Answer 37

• there is drug test evidence through lawful testing that there are class A drugs in the person’s body
• the accused is charged with an offence under the Misuse of Drugs Act 1971 and the offence relates to a class A drug, or the court is satisfied that misuse of drugs contributed to the offence the accused was charged
• the person does not agree to undergo assessment (carried out by a qualified person) of dependency or propensity to misuse drugs. Or has carried out an assessment but refused to undergo a relevant follow up which has been offered - D7.31

Question 38

Failure to surrender to custody, committing offences while on bail and accused arrested on substantial grounds for believing they would fail to custody, do not apply when?

Answer 38

where the accused has attained the age of 18, and has not been convicted of an offence in the proceedings and there is no prospect of a custodial sentence - D7.36

Question 39

What grounds do not apply to where the offences are non-imprisonable?

Answer 39

• risk of absconding and insufficient time to get information -D7.37

Question 40

A person granted bail in criminal proceedings is under what duty?

Answer 40

to surrender to custody - D7.45

Failure to surrender without reasonable cause is an offence under the BA 1976, s6

Question 41

does the accused have to act as his or her surety?

Answer 41

no, they may be required to provide other people to stand surety, or may be required to give security for his or her surrender to custody - D7.46

Question 42

Are justices obliged to have substantial grounds for believing that repetition of the accused’s conduct would occur?

Answer 42

they are not obliged, but it is enough that they perceive a real risk of that happening - D7.48

Question 43

What must a prosecution who wants to impose conditions do?

Answer 43

specify the conditions and explain what purpose it would serve - D7.49

Question 44

what condition is normally combined with a curfew condition?

Answer 44

electronic monitoring (also known as tagging) - D7.51

Question 45

what is the only purpose a surety can be sought?

Answer 45

only for the purpose of securing surrender to custody, no other purpose - D7.55

one or more sureties should be required only in cases where there appears to be a risk of absconding

Question 46

a person cannot stand as surety for him or herself. But persons granted bail may be required to give security for their surrender to custody. when is this required?

Answer 46

as with surety, security may be required as a condition for bail only if it os necessary to prevent absconding - D7.60

Question 47

What happens if a person who gives security absconds?

Answer 47

unless there appears to have been a reasonable cause for the failure to surrender to custody, the court may order forfeiture of the security - D7.60

Question 48

Can a third party make an asset available for the accused to use as security?

Answer 48

yes - however it is the accused who gives the security, the arrangements between the third party and the accused are not a matter for the court. - D7.60

there is no obligation for the third party to be informed before the security is forfeited on the accused’s non attendance

Question 49

where bail is granted can the accused apply for the conditions to be varied?

Answer 49

yes - D7.65

Question 50

Where should application to vary the conditions be made?

Answer 50

to the court which granted bail, or if the accused has been sent to the crown court for trial or committed to the crown court for sentence, then the crown court - D7.65

Question 51

What type of application can prosecution make in relation to bail?

Answer 51

application for either existing conditions to be varied, or where unconditional bail is granted, for conditions to be imposed - D7.65

Question 52

What must a party who intends to apply for a variation to bail conditions do?

Answer 52

give notice in advance to the court and to the other party explaining what is sought and why - D7.65

The application must be served not less than two business days before any hearing that the applicant wants the court to consider it, if one is due

Question 53

can the court determine an application to vary the conditions without a hearing?

Answer 53

yes, if the variation has been agreed by the parties - D7.65

If there is a hearing, it should take place no later than the fifth business day after the application was served

Question 54

what happens when there has been a breach of bail conditions imposed?

Answer 54

it may result in the accused being arrested without warrant under the BA 1976 s7(3), and bail being withdrawn - D7.66

Question 55

When can a decision on bail be made?

Answer 55

when 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 - D7.67

Question 56

Can a bail decision be made in the absence of the accused?

Answer 56

yes, where they have waived the right to attend, or were present when bail was refused on a previous occasion and have been in custody continuously since then - D7.67

Question 57

is a bail hearing public or private?

Answer 57

it may take place publicly or privately - D7.67

Question 58

Where the presumption is in favour of bail, who bears the onus?

Answer 58

the onus is on the court to justify any refusal of bail - D7.67

Question 59

What does the cps case file contain?

Answer 59

if there are any objections to bail and the basis of the objections - D7.68

Prosecution basis objections on the information, unless a police officer connected with the case is present in court to give further information

Question 60

what should still happen where the defence choose not to make a bail application?

Answer 60

prosecution should present atleast cursory objections to bail so that the court will be able to base a refusal on one of more of the reasons - D7.68

Question 61

Where prosecution oppose bail ,what should they do?

Answer 61

they are required to specify each statutory exception to the presumption in favour of bail on which they rely, and each consideration prosecution argue to be relevant -D7.68

Question 62

Is there requirement of formal evidence to be given?

Answer 62

there is no requirement - D7.68

either party may however adduce evidence in support of their respective arguments. the witnesses give their evidence on the void dire form of oath, to answer truthfully all such questions as the court may ask.

Question 63

does the prosecution apply to the application for bail by the defence?

Answer 63

they will not normally apply to the application for bail by the defence, however they have a right to reply to the defence submissions if this is necessary to correct alleged misstatements of facts in what the defence said - D7.68

Question 64

An accused remanded in custody may make a fully argued application at the next hearing , regardless of if it repeats the same arguments. When does this hearing take place?

Answer 64

unless the accused consents to being remanded while absent, the next hearing will take place within eight Clear days- D7.70

Question 65

where the second appearance application fails, what happens?

Answer 65

the court need not hear arguments on fact or law which it heard previously - new arguments - D7.70

Question 66

What happens when the magistrates’ court adjourns a case and remands the accused in custody after hearing a fully-argued bail application?

Answer 66

the court must issue a certificate confirming that full argument was heard - D7.78

Question 67

What happens when there is a bail argument on the basis of change in circumstances or new considerations?

Answer 67

the magistrates must issue a certificate of full argument which must state what the change was - D7.78

The accused must be given a copy of the certificate

Question 68

what is the significance of the court issuing a certificate after hearing a bail application?

Answer 68

the right to apply to the crown court for bail is dependent on it -D7.78

the obligation to issue a certificate while the accused is in remand may arise at any time

Question 69

where the magistrates has refused bail to an accused, where may they apply to?

Answer 69

the crown court - D7.80

an appeal can also be made against a decision of magistrates’ court to impose conditions on bail

Question 70

what must happen when an accused wants to apply to the crown court for bail?

Answer 70

written notice of the intention must be given before the magistrates’ court, the crown court, the prosecutor(and any surety affected or proposed) as soon as practicable after the decision - D7.83

Question 71

What must the notice of application to the crown court contain?

Answer 71

it must explain why bail shouldn’t be withheld, or why the condition of bail under appeal should be varied , it should identify any further information or legal argument that has become available since the magistrates’ decision. if it is an application for bail, it should attach a copy of the certificate that the magistrature heard full argument as to bail

Question 72

what happens if prosecution oppose the application to the crown court for bail?

Answer 72

they must notify the CC and accused and must serve notice of reasons opposing the application - D7.83

Question 73

When should the crown court hear applications?

Answer 73

no later than the business day after the notice of application or appeal was served - D7.83

Question 74

are bail applications public or private?

Answer 74

they are both, but usually heard in private - D7.84

The application will be heard by a circuit judge or recorder (in the CC)

Question 75

what may the cc do if they grant bail?

Answer 75

direct that the accused appear at a time and place which the magistrates’ court could have directed - D7.84

Question 76

Can a further application be made to the CC if one has been already made?

Answer 76

no, unless there are fresh arguments or considerations to put before the court - D7.86

Question 77

what right does prosecution have in relation to appeal?

Answer 77

prosecution has the right to appeal to Crown Court against magistrates court’s decision to grant bail
prosecution has the right to appeal to the High court when the CC grants bail other than in the context of appeal against grant of bail by magistrates - D7.92

Question 78

What cases can prosecution appeal?

Answer 78

1) Prosecution must have opposed bail originally
I.E. @ first hearing
2) Offence must be punishable by imprisonment - D7.92

Question 79

How does prosecution exercise their right to appeal in bail proceedings?

Answer 79

First they give oral notice of appeal at the conclusion of the proceedings in which bail was granted, and before the accused is released from custody. (notice can be given to the court officer) - D7.93

following the oral notice, the accused must remain in custody until the appeal is determined or disposed of

Question 80

What else must prosecution do after giving oral notice for appealing bail?

Answer 80

they must confirm the oral notice in writing, serve 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 granted by the court

Question 81

where prosecution is late in serving written notice, will the courts still approve?

Answer 81

yes, if it was outside the prosecution’s control - D7.93

Question 82

When must the appeal by prosecution be heard?

Answer 82

within 48 hours upon which the oral notice is given, excluding weekends and holidays -D7.93

Question 83

What are the court’s powers where an accused on bail fails to surrender to custody in answer to bail?

Answer 83

• 1. Magistrates’/Crown Court may issue warrant for D’s arrest (Bench warrant)
     * P applies for the warrant, or court does it on its own volition
     * Usual form of warrant simply orders the arrest of the accused and that he be brought to court.
• 2. Magistrates’ court may adjourn and extend accused’s bail // Crown Court may 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)
     * => Appropriate only where the court is satisfied that there is a good reason for the accused’s non-attendance
     
     • I.E. Medical report for illness
• 3. May be possible to proceed in the absence of the accused;
     * However, if offence is triable either-way, magistrates may summarily try the case only with the consent of the accused. the consent must be given at a hearing which the accused is present, unless the court is satisfied there is good reason for absence and the accused is represented by a lawyer who consents to summary trial on behalf of the accused - D7.98

Question 84

when may a police officer arrest an accused on bail without a warrant?

Answer 84

• 1. Officer has reasonable grounds for believing that he is not likely to surrender to custody; or
• 2. Officer has reasonable grounds for believing that he has broken, or is likely to break, any condition of his bail; or
     * Re: ‘likely to break’, esp relevant wrt curfew condition
     * 3. 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 his obligations - D7.102

Question 85

when must a person on bail arrested by the police (without a warrant) be brought before the court?

Answer 85

• D will then be brought before a magistrates’ court as soon as practicable. In any event, within 24 hours.
  
  • *Unless arrested on a Saturday
  • => Brought before a single justice

Question 86

who must the arrested person be brought before?

Answer 86

a justice of the peace (single justice)- D7.102

the justice need not be sitting in a courtroom

Question 87

what court should the accused be brought to when arrested?

Answer 87

the court at which surrender to custody should have taken place - D7.102

Question 88

What happens were an accused breaches conditional bail?

Answer 88

the jurisdiction to deal with the accused must be exercised by a magistrate. there is no power to commit the accused to the CC - D7.103

magistrate may find there is no breach and the accused will remain on bail

magistrates may find there has been a breach and impose more stringent conditions or allow bail as before

magistrates may find there has indeed been a breach and remand the accused till trial fixed date

Question 89

what must the magistrates decide when a person is brought under the Bail Act, s.7?

Answer 89

whether they are likely to fail to surrender to custody, or else has broken or is likely to break any condition of bail.

if any is establisher, they may remand the person in custody or impose more onerous conditions - D7.104

Question 90

Does the magistrates’ court need to hear evidence when a person is brought to them under the Bail Act?

Answer 90

no. the court can simply base its decision off representations from the prosecution and defence. - D7.105

Question 91

what is the test the magistrates’ use to consider whether a person who fails to surrender has a reasonable excuse?

Answer 91

• 1. Has there been a breach of a condition?
     * Justice must act fairly and give D chance to answer accusations ag him.
     * Actual, or potential, breach!
• 2. If there has been a breach, consider whether or not D should be granted bail again
     * Reasons for the breach of bail become relevant
     * Must consider all issues relating to ‘reasonable excuse’
• *Court does not need to hear evidence. Decision can be based on representations from P and D. - D7.105

Question 92

However, if D is in breach, or is about to be so, of his bail, is it a separate offence?

Answer 92

it is not a separate offence - D7.108

Question 93

a person who is released on bail and fails without reasonable cause to surrender to custody is guilty of what offence?

Answer 93

absconding - D7.110

The burden of showing reasonable cause is on the accused

Question 94

a person with reasonable cause for failing to surrender should surrender when?

Answer 94

failing to surrender as soon after the appointed - D7.110

Question 95

an offence for failure to surrender is punished how?

Answer 95

on summary conviction or as if it were a criminal contempt of court - D7.111

Question 96

An offender summarily convicted of an offence under s6 BA 1976 is liable to imprisonment for up to how long?

Answer 96

three months and/or a fine of any amount - D7.111

Question 97

How else can magistrates deal with a s6 offender?

Answer 97

commit them to the CC for sentence if the offence merits greater punishment than it has power to inflict. or it is sending the offender to the CC for trial of another offence and considers the CC should deal with the absonding - D7.111

Question 98

An offender sent to the crown court is guilty of what?

Answer 98

criminal contempt and is liable for up to 12 months imprisonment and/or an unlimited fine - D7.111

Question 99

what is the procedure for prosecuting ‘absconding?’

Answer 99

• 1. D brought, as soon as appropriate after arrest, before court
     * No requirement to apply for summons or issue written charge + requisition
• 2. Court initiates proceedings, or P invites court to take proceedings
     * If former, P expected to assist the court, i.e. cross-examine the accused
• 3. In practice, court asks D/his legal rep the reason for his non-appearance
     * If it seems satisfactory, bench indicates no further action
     * If not, clerk puts the charge to D
• 4. If charge is put, court will ask if D pleads guilty or not guilty
     * P and D will make representations
• 5. Court will come to its own decision there and then