Bail and remands (W4)

Question 1

D5.22 - When can a magistrates court adjourn proceedings?

Answer 1

At any stage before the case is sent to the Crown Court for trial, or before (or during) a summary trial (MCA 1980, ss.10 and 18)

Question 2

D5.27 - Challenging decisions on adjournments

Answer 2

• It is possible to challenge the grant or refusal of an adjournment by judicial review.
• However, the Divisional Court will be particularly slow to interfere with a decision to refuse an adjournment, given the discretionary nature of that decision (R (CPS) v Uxbridge Magistrates)
• Ought only to succeed on limited but well-recognised grounds e.g. error of principle, error of law or where the decision can be properly characterised as plainly wrong (DPP v Petrie)

Question 3

D5.29 - Statutory power to adjourn in the magistrates’ court

Answer 3

ss.10(1) and 18(4) MCA 1980

Question 4

D5.30 - Remanding the accused on adjournments

Answer 4

• Whenever a magistrates’ court has the power to remand a person, it may either remand in custody or remand on bail, in accordance with the BA 1976 (s.128(1) MCA 1980)
• On adjourning proceedings for an either-way offence, the court must remand the accused unless the accused (a) first appeared in answer to a summons or requisition and (b) has not been remanded at an earlier hearing.
• So the magistrates may, at their discretion, adjourn without remanding the accused (a) at all appearances for summary offences up to conviction; and (b) at appearances for either-way offences up to either a determination for trial on indictment or summary conviction, provided the accused initially appeared in answer to a summons/requisition and has not subsequently been remanded.
• Where a defendant appears in court in response to a written charge and requisition, the question of bail arises only if the magistrates court chooses to remand the defendant rather than simply adjourning the case.

Question 5

D5.30 - Adjournment and fixing a date for the next hearing

Answer 5

• Where a case is simply adjourned, there is no need to fix a date for the next hearing at the time of adjourning
• If there is a remand, the adjournment date must be fixed and is the date to which the accused is remanded.

Question 6

D5.30 - Remand and the accused’s attendance at the next hearing after adjournment

Answer 6

• An accused who is not remanded and then fails to appear on the date to which the case is adjourned commits 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.
• An accused who has been remanded on bail and who then fails without reasonable cause to surrender to custody commits an offence under the BA 1976.

Question 7

Remand definition

Answer 7

Where the defendant is sent away and told to come back another day. A defendant on remand is obliged to come back to court to continue with the case. Remand may be served either in custody or on bail.

Question 8

Adjournment definition

Answer 8

In any case where the defendant is presented to court, and the court cannot conclude the case in one hearing, the case is adjourned.

Question 9

D5.31 - Maximum period for which a magistrates’ court may remand an accused in custody

Answer 9

8 clear days (MCA 1980, s.128(6))

Question 10

D5.32 - Further remands

Answer 10

• A person who is brought before the court after an earlier remand may be remanded again (MCA 1980, s.128(3)) so there may be several remand hearings before the case is sent to the Crown Court or the commencement of summary trial
• The only limitation on the number of remands is the general discretion of magistrates to refuse an adjournment if it would be against the interests of justice
• s.130: a court remanding an accused in custody may order that for subsequent remands, the accused be brought up before a different magistrates court nearer to the prison where the accused is to be confined while on remand.

Question 11

D5.36 - Maximum period for remand on bail

Answer 11

s.128(6)(a) MCA 1980 - The accused may be remanded for a period greater than 8 clear days if the remand is on bail and both the accused and the prosecution agree to a longer period of remand.

Question 12

D15.7 and 15.8 - Section 22 of the Prosecution of Offences Act 1985

Answer 12

Empowers the Secretary of State to make regulations fixing:

(a) the max period available to the prosecution to complete any preliminary stage of proceedings for an offence; and/or
(b) the max period for which an accused may be kept in custody while awaiting completion of such a stage.
- Regulations may prescribe an overall time limit within which the prosecution must complete the stage of proceedings (doesn’t currently apply), or alternatively a custody time limit for which the accused may be remanded in custody.

Question 13

D15.9 - Custody time limits

Answer 13

• Between first appearance and committal, for an accused charged with an indictable offence in the custody of the magistrates’ court: 70 DAYS
• Between first appearance and summary trial, if the offence is triable either way and the court determines to try the case summarily: 70 DAYS, unless the decision for summary trial is taken within 56 days, in which case, 56 DAYS. For a summary offence, the max is 56 DAYS.
• Between committal and trial on indictment: 112 DAYS
• Multiple committals: the 112 day limit applies separately in relation to each offence.
• Section 51 sending: 182 DAYS between the date on which the accused is sent to the Crown Court and the start of the trial. From this maximum must be deducted any period during which the accused was held in custody by the magistrates.
• Retrial directed by the CoA: 112 DAYS from date of preferment
• Voluntary bill: 112 DAYS from date of preferment

Question 14

D15.18 - Effect of expiry of custody time limit

Answer 14

The accused must be granted bail, in relation to the offence to which the limit relates.

Question 15

D15.18 - Effect of expiry of custody time limit

Answer 15

The accused must be granted bail, in relation to the offence to which the limit relates.

Question 16

D15.33 - Procedure for seeking an extension of time limits

Answer 16

• At any time before the expiry of a time limit, the Crown Court, if the accused has already been admitted for trial, or the magistrates’ court, may extend the limit if satisfied:
  (a) that the prosecution has acted with all due diligence and expedition, and
  (b) there is good and sufficient cause for doing so. (Prosecution of Offences Act 1985, s 22(3))
• An already extended limit may be further extended (s.22(3))
• The extension of time limits should be addressed at the time that a trial date was fixed outside of the existing limit, rather than after the decision as to listing had already been made (Campbell-Brown v Central Criminal Court)

Question 17

D7.2 - Bail by Magistrates’ Court

Answer 17

• A magistrates’ court, when adjourning a case, may remand the accused (MCA 1980, ss.10(1) and 18(4)
• A remand by a magistrates’ court may be in custody or on bail (s.128(1))
• Magistrates also have power to grant bail for the period of any remand for reports etc. after summary conviction (s.10(3))
• Where a magistrates’ court sends an accused to the Crown Court for trial under CDA 1998 s.51, the accused may be kept in custody or released on bail. Committals for sentence may also be in custody or on bail.
• Where a magistrates’ court has summarily convicted an accused and passed a custodial sentence, it may grant bail pending the determination of an appeal to the Crown Court or Divisional Court by way of case stated.
• A person charged with murder may not be granted bail except by order of a Crown Court judge.

Question 18

D7.3 - Bail by Crown Court

Answer 18

Under the Senior Courts Act 1981, s.81(1)(a) to (g), the Crown Court may grant bail to any person:

(a) who has been sent in custody for trial in the Crown Court;
(b) who has been given a custodial sentence following conviction in the magistrates’ court and who is appealing to the Crown Court against conviction and/or sentence;
(c) who is in the custody of the Crown Court pending disposal of the case (so whenever the court adjourns a trial or adjourns between conviction and sentence);
(d) and (e) whose case has been decided by the Crown Court but who has applied to the court to state a case for the Divisional Court’s opinion or is seeking judicial review of the decision;
(f) to whom the Crown Court has granted a certificate that the case is fit for appeal to the CoA; and
(g) who has been remanded in custody by a magistrates’ court on adjourning the case under PCC(S)A 2000, CDA 1998 or MCA 1980, provided the magistrates’ court has granted a certificate that, before refusing bail, it heard full argument.

Question 19

D7.4 - Bail jurisdiction in murder cases

Answer 19

• CAJA 2009, s.115(1): a person charged with murder may not be granted bail except by order of a Crown Court judge
• A person who appears before a magistrates’ court charged with murder must be committed (in custody) to the Crown Court (s.115(4))
• A Crown Court judge must then make a decision about bail as soon as reasonably practicable or, in any event, within 48 hours (excluding weekends and public holidays) beginning with the day after the day on which the person appears before the magistrates’ court (s.115(3)).
• These provisions apply whether or not the accused is charged with any offences in addition to the murder charge (s.115(6))

Question 20

D7.6 - Presumption in favour of bail

Answer 20

There is a rebuttable presumption in favour of bail (s 4(1) and sch. 1 BA 1976)

Question 21

D7.6 - To whom does the presumption in favour of bail apply?

Answer 21

Any person:

(a) who appears before the Crown Court or a magistrates’ court in the course of or in connection with proceedings for an offence, or applies to a court for bail (or for variation of conditions of bail) in connection with those proceedings (s.4(2));
(b) who has been convicted of an offence and whose case is adjourned for reports before sentencing (s.4(4)); and
(c) who has been brought before the court under the CJA 2003, sch.8, for alleged breach of a requirement of a community order (s.4(3))

Question 22

D7.6 - No presumption of bail for those who have already been convicted

Answer 22

• An appellant seeking bail pending determination of an appeal against conviction and/or sentence cannot rely on the presumption in favour of bail.
• Nor can an offender who is committed to the Crown Court for sentence after conviction in a magistrates’ court.
• In both these situations, there is a power to grant bail, but it is entirely at the discretion of the court.

Question 23

D7.6 - Presumption of bail does not apply to bail from the police station

Answer 23

However, once a detainee has been charged, s.38(1) PACE 1984 imposes a duty on the custody officer to grant bail unless its refusal can be justified on grounds similar to those which would justify a court refusing bail under the BA 1976.

Question 24

D7.7 - Bail following indication of a Guilty plea at Plea Before Venue hearing

Answer 24

• When a person who has been on bail pleads guilty at the plea before venue, the usual practice should be to continue bail, even if it is anticipated that a custodial sentence will be imposed by the Crown Court, unless there are good reasons for remanding the accused in custody.
• If the accused is in custody, then it would be unusual to alter that position.

Question 25

D7.8 - No bail for homicide or rape if previous conviction

Answer 25

CJPO 1994, s.25

• The court may not grant bail to an accused who is charged with or has been convicted of murder, attempted murder, manslaughter, rape or attempted rape, or certain other offences under the SOA 2003, if the accused has been convicted of any of these offences in the past, unless it is of the opinion that there are exceptional circumstances to justify it.
• In a case where the previous conviction is for manslaughter, the restriction applies only if the accused received a custodial sentence for it.
• Conviction in this case includes where the defendant was not guilty by way of insanity, or was found to have done the actus reus but was unfit to plead.
• Previous convictions in other EU member states are treated as being relevant previous convictions in the UK.

Question 25

D7.8 - No bail for homicide or rape if previous conviction

Answer 25

CJPO 1994, s.25

• The court may not grant bail to an accused who is charged with or has been convicted of murder, attempted murder, manslaughter, rape or attempted rape, or certain other offences under the SOA 2003, if the accused has been convicted of any of these offences in the past, unless it is of the opinion that there are exceptional circumstances to justify it.
• In a case where the previous conviction is for manslaughter, the restriction applies only if the accused received a custodial sentence for it.
• Conviction in this case includes where the defendant was not guilty by way of insanity, or was found to have done the actus reus but was unfit to plead.
• Previous convictions in other EU member states are treated as being relevant previous convictions in the UK.

Question 26

D7.11 - No bail for murder

Answer 26

BA 1976, sch.1, part I, para 6ZA
- An accused who is charged with murder may not be granted bail 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, or would be likely to, cause physical or mental injury to any other person. Therefore, the presumption in favour of bail is effectively reversed.

Question 27

D7.12-13 - Refusing bail to an accused charged with an indictable offence

Answer 27

Bail Act 1976, sch.1, para.2

(1) The defendant need not be granted bail 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–
(a) fail to surrender to custody, or
(b) commit an offence while on bail, or
(c) interfere with witnesses or otherwise obstruct the course of justice, whether in relation to himself or any other person.

Question 28

D7.14 - Standard of proof for refusing bail

Answer 28

The court must merely be satisfied that there are ‘substantial grounds for believing’ these things would occur.

Question 29

D7.16 - No real prospect of a custodial sentence

Answer 29

Bail cannot be withheld on any of the grounds set out in para 2 if the accused has attained the age of 18, has not been convicted of an offence in those proceedings, and it appears to the court that there is no real prospect that the accused will be sentenced to a custodial sentence in the proceedings.

Question 30

D7.17 - Relevant factors to which the court should have regard when making a decision whether to refuse bail

Answer 30

(a) the nature and seriousness of the offence and probable method of dealing with the offender for it
(b) the character, antecedents, associations and community ties of the accused,
(c) the accused’s record for answering bail in the past,
(d) the strength of the evidence against the accused,
(e) if the court is satisfied that there are substantial grounds for believing that the accused would commit an offence whilst on bail, the risk that the accused may engage in conduct likely to cause physical or mental injury to anyone else

Question 31

D7.18 - Nature and seriousness of the offence as a factor for refusing bail

Answer 31

The relevance of the offence alleged being serious is that the accused will know that, if convicted, a severe sentence is likely and it will therefore be more tempting to abscond rather than run the risk of such a sentence. However, the gravity of the offence is not an automatic reason for refusing bail. Even the inevitability of a custodial sentence is not itself an exception to the right of bail.

Question 32

D7.19 - Character and antecedents as a factor for refusing bail

Answer 32

• Refers primarily to previous convictions.

- Previous convictions under s.6 BA 1976 for failing to surrender to custody in answer to bail are especially relevant.

Question 33

D7.20 - Associations and community ties as a factor for refusing bail

Answer 33

• ‘Associations’ is generally taken to refer to undesirable friends with criminal records
• ‘Community ties’ should involve looking at how easy it is to abscond and how much the accused has to lose by absconding. How long has the accused lived at their current address? Do they have a partner or dependent children? Are they in employment and for how long have they been? Do they have a mortgage or protected tenancy?
• An accused with no fixed abode or short term accommodation is not automatically debarred from bail but the ease of disappearing to another address should be considered.

Question 34

D7.21 - Bail record as a factor for refusing bail

Answer 34

Absconding in previous proceedings is regarded as evidence of a risk that the accused may do so again.

Question 35

D7.22 - Strength of the prosecution evidence as a factor for refusing bail

Answer 35

One who knows that there is a good chance of being acquitted is less likely to abscond than one who anticipates almost certain conviction. It is also relevant that a remand in custody followed by acquittal creates a manifest injustice. In borderline cases where the arguments against bail are strong but not overwhelming, the court may prefer to run the risk of absconding than the risk of acquittal after a long period in custody on remand.

Question 36

D7.23 - Risk of injury to someone else as a factor for refusing bail

Answer 36

• Where the court is satisfied that there are substantial grounds for believing that the accused would commit an offence while on bail, the court considers whether that offence is likely to cause physical or mental injury to any other person.
• Should also have regard to any misuse of controlled drugs by the defendant.

Question 37

D7.24 - Other grounds for refusing bail

Answer 37

Part I Sch 1 BA 1976:

• 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

Question 38

D7.25 - Domestic violence: Risk to an ‘associated person’

Answer 38

• The accused need not be granted bail if the court is satisfied that there are substantial grounds for believing that, if released on bail, the accused would commit an offence which would cause physical or mental injury to an associated person.
• Associated person = within the meaning of the Family Law Act 1996 s.62(3)

Question 39

D7.26 - Accused already on bail

Answer 39

• Accused need not be granted bail if it appears to the court that the accused was on bail for another offence on the date of the current offence.
• Does not apply where the accused is over the age of 18, has not been convicted in the current proceedings, and there is no real prospect the accused will be given a custodial sentence.

Question 40

D7.27 - Accused’s own protection

Answer 40

• e.g. where the offence alleged has caused anger in the area where it was committed and there is a risk of members of the public enacting retribution.
• Where the accused is a child or young person, bail may be refused if the accused should be kept in custody ‘for his own welfare.’

Question 41

D7.28 - Already in custody

Answer 41

• Applies only if the accused is in custody pursuant to a sentence, not when in custody as a result of a remand in other proceedings that are currently outstanding.
• Where an accused is certain to be in custody for the foreseeable future, the court may find it more convenient to grant ‘technical bail’, avoiding the restrictions on the periods for which remand in custody may be ordered and the need to bring the accused back to court for further remand hearings.

Question 42

D7.29 - Insufficient time

Answer 42

• Accused need not be granted bail if the court is satisfied that, owing to lack of time since the commencement of proceedings, it has not been practicable to obtain sufficient information for the purposes of making a decision on bail.
• In such cases, the court might remand in custody (possibly for a shorter than usual period) to enable the necessary information to be found.
• Should be relied on sparingly

Question 43

D7.30 - Absconded in the present proceedings

Answer 43

Does not apply where the accused is 18+, has not been convicted in the current proceedings, and there is no real prospect that they will receive a custodial sentence.

Question 44

D7.31 - Bail in cases involving abuse of drugs

Answer 44

An accused aged 18 or over may not be granted bail unless the court is of the opinion that there is no significant risk of them committing an offence on bail where three conditions apply:

(a) there is drug test evidence that there is a Class A drug in the person’s body;
(b) either the accused is charged with an offence under the Misuse of Drugs Act 1971 s.5(2) or (3), or the court is satisfied that there are substantial grounds for believing that the misuse of a specified Class A drug caused or contributed to the offence with which the accused is charged
(c) the person does not agree to undergo an assessment of dependency or a propensity to misuse Class A drugs
- If an assessment is agreed to, it will be a condition of bail granted.

Question 45

D7.35 - Refusing bail to an accused charged with summary and non-imprisonable offences

Answer 45

Where the offence is a summary offence punishable with imprisonment, or an offence to which the MCA 1980 s.22 applies (criminal damage where the value involved does not exceed £5,000), BA Part 1 Sch 1 does not apply, and Sch 1 Part IA applies instead.

Question 46

D7.35 - Exceptions to the presumption in favour of bail for summary imprisonable offences

Answer 46

(a) accused has previously been granted bail and has failed to surrender to custody in those proceedings, and the court believes that if released on bail, the accused would fail to surrender
(b) where the accused was on bail on the date of the current alleged offence and there are substantial grounds for believing that the accused would commit an offence whilst on bail
(c) there are substantial grounds for believing that the accused would commit an offence while on bail by engaging in conduct that would or would be likely to cause physical or mental injury to an associated person
(d) court is satisfied that the accused should be kept in custody for their own protection
(e) accused is already serving a custodial sentence
(f) accused is arrested under s.7 BA 1976 and there are substantial grounds for believing that the accused would fail to surrender, commit an offence on bail or interfere with witnesses or otherwise obstruct the course of justice
(g) court is satisfied that it has not been practicable to gain sufficient information for the purpose of deciding whether to grant bail

Question 47

D7.37 - Exceptions to the presumption in favour of bail for non-imprisonable offences

Answer 47

(a) where the accused is under the age of 18 or has been convicted of an offence in those proceedings and, having been granted bail in previous proceedings, has failed to surrender, and the court believes they would again
(b) court is satisfied that the accused should be kept in custody for his or her own protection or welfare
(c) accused is already serving a custodial sentence
(d) accused is under the age of 18 or has been convicted of an offence in those proceedings, and has been arrested under s.7 BA 1976, and court satisfied there are substantial grounds for believing they would fail to surrender, commit an offence on bail, or interfere with witnesses/obstruct the course of justice
(e) accused has been arrested under s.7 and the court is satisfied that there are substantial grounds for believing that the accused would commit an offence on bail by engaging in conduct that would, or would be likely to, cause physical/mental injury to an associated person