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Criminal / CLP > Bail (Criminal Litigation) > Flashcards

Bail (Criminal Litigation) Flashcards

1
Q

What is the general right to bail?

A

For most offences, there is a general right to bail (presumption of bail)

Unless there is a substantial right to believe:
- a failure to surrender;
- commit an offence on bail;
- interfere with witnesses; or
- obstruct course of justice

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2
Q

For what offences is there not a general right to bail?

A

Murder and serious sexual offences
- murder or attempted murder;
- rape or attempted rape;
- manslaughter;
- serious sexual offences

In these cases of ‘serious offences’ - bail is not presumed and bail will likely not be granted

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3
Q

What are some restrictions under conditional bail?

A

Curfew, residence and particular place, report to police station, exclusion from areas, electronic tag, removal of passport

  • must be relevant to the crime, proportionate and enforceable
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4
Q

What is bail?

A

Bail is an order to appear before the court

The defendant is released subject to their duty to surrender to the court at an appointed time and place

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5
Q

When is bail granted?

A

Where there is a gap in court proceedings - after MC first hearing, after sending hearing, after PTPH, if there is a break between conviction and trial

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6
Q

What is the starting point for bail applications?

A

There is always (subject to exceptions) a presumption of bail

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7
Q

Who bears the burden of proof to deny the defendant bail?

A

It is up to the prosecution to prove and persuade the court that the exceptions apply and that D is not granted bail

The prosecution needs to apply to remove bail

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8
Q

When do the exceptions to bail apply?

A

There must be a real prospect of custodial sentence
- offence must be seriousness enough to warrant imprisonment

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9
Q

What are the substantial grounds if the defendant is released on bail, which can deny the defendant bail?

A
  • Fail to surrender to custody
  • Commit an offence while on bail
  • Interfere with witnesses
  • Obstruct the course of justice
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10
Q

When can committing an offence whilst on bail rebut the presumption of bail?

A

If the offence is indictable or triable either way and it appears to the court that D committed the offence whilst on bail for another offence

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11
Q

What is the approach to bail if the defendant has been charged with murder?

A

Only a Crown Court judge can grant bail
- if the court believes there is no significant risk of the defendant committing while on bail

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12
Q

What is the rule for any bail condition to apply?

A

Any bail condition must be justified and necessary

All conditions must be relevant, proportionate and enforceable

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13
Q

What is a surety?

A

A guarantee given by a parent or guardian that the defendant will surrender to custody at the appointed time

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14
Q

What is security for the purposes of a bail condition?

A

Money paid to the court by the defendant or anyone else

If D does answer bail, the money is returned

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15
Q

What bail conditions can be used to ensure the defendant stays in a certain location or is restricted in their movement?

A
  • Residence
  • Exclusion
  • Curfews
  • Bail hostels
  • Surrender of passport
  • Reporting to police station
  • Restrictions on communication
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16
Q

What happens at the first hearing in respect of bail?

A
  • Defence solicitor checks if prosecution opposes bail. If not, defence solicitor informs the court
  • If the CPS opposes bail, it will give the court reasons why (including previous convictions)
  • Defence solicitor will make application for bail
  • The court then decides. If bail is refused, a Full Argument Certificate is granted and reasons given
17
Q

What can the defendant do if bail has been refused by Magistrates Court?

A

1) Make another application for bail to MC on same facts (if case continues in MC)
- If the MC refuses again and the case continues in the MC, D cannot make another full application to MC unless new facts arise. D can apply to the CC though.

2) Apply to the CC

18
Q

How many attempts does a defendant being tried in MC have at bail?

A
  • Two attempts at getting bail at MC;
  • And one attempt on appeal to CC
19
Q

How long does defendant have to make second application to MC if the case stays in MC?

A

Defendant can make a second application in MC 7 days later

20
Q

What must happen for D to apply again at the Crown Court for bail?

A

There must be a change in circumstances

  • once D makes an application to the CC, they get no more application in MC
21
Q

What is the timeline for bail in Crown Court?

A

The Crown Court will hear a bail appeal no later than one business day after the appropriate notice is served

22
Q

Can the defendant appeal the conditions of bail imposed by Magistrates Court?

A

Yes - defendant has right to appeal to CC and CC has power to remove or vary the conditions

  • D can also appeal to MC if the case continues in MC
23
Q

Can the CPS appeal if the defendant has been granted bail by Magistrates Court?

A

Yes, if D has been charged with an imprisonable offence

  • CPS can appeal to Crown Court
  • Oral notice of the appeal must be given before D is released from custody and served on court and D within 2 hours of the conclusion of MC’s first hearing
  • CC hearing must be heard within 2 business days of appeal notice
24
Q

What happens if defendant breaches bail conditions?

A

D can be arrested but it is not a criminal offence

  • the individual is brought before the magistrates’ court within 24 hours of arrest and is dealt with by the court
  • magistrates can remand the person in custody or impose stricter bail conditions
25
Q

What happens if the defendant absconds on bail?

A

D has committed an offence (failure to surrender = an offence), unless they had reasonable cause and surrendered when reasonably practicable to do so

26
Q

What are the custody time limits?

A

Prosecution cannot hold a defendant beyond the custody time limits

  • 56 days for trials in MC of summary or either-way offences
  • 182 days for trials in CC of indictable or either-way offences

A trial must commence before the expiry of custody time limits

27
Q

What is the punishment for failure to surrender?

A

The only bail breach which is a criminal offence is failing, without reasonable cause, to surrender to custody
- punishable summarily by up to three months’ imprisonment and/or an unlimited fine or 12 months and/or unlimited fine on indictment

28
Q

What factors are considered when considering grounds for objecting to bail?

A

a) nature and seriousness of offence
b) character of defendant
c) defendant’s bail record in the past
d) strength of evidence

29
Q

Can the Magistrates ever grant bail for the offence of murder?

A

No - when a defendant is charged with murder, bail can only be granted by a Crown Court judge, not a magistrates.

This is only when a Crown Court judge considers there is no significant risk of the defendant committing an offence likely to cause physical or mental injury to another

30
Q

How will the magistrates consider an issue of bail for a defendant charged with murder?

A

The defendant does not have the presumed right to bail because of the nature of the offence and the magistrates can never grant bail for an offence of murder

31
Q

How does the court deal with a defendant’s failure to surrender?

A

The defendant has committed an offence of failure to surrender and that conviction gives grounds for bail to be refused until the new trial date

32
Q

What is the MC approach to granting bail for a suspect charged with attempted rape?

A

Bail will not be presumed and likely not granted because the defendant has been charged with a “serious offence”

  • rape and attempted rape are serious offences which mean the presumption of bail does not exist
33
Q

Bail conditions for murder

What will the judge (Crown Court) ask:
- If D has previous conviction for murder, attempted murder, rape, serious sexual offence

A

D is not granted bail unless there are exceptional circumstanes

34
Q

Bail conditions for murder

Judge in Crown Court will ask:

A

(if there are not previous convictions of murder)

D may not be granted bail unless there is no significant of risk D causing an offence likely to cause physical or mental injury to another person

Criminal / CLP (16 decks)

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