Bail(O)

Question 1

Police Powers to Grant Bail. (Part one)

Answer 1

The police may release a suspect on bail while they make further inquiries. This means that the suspect is released from police custody on the condition that they return to the police station on a specific date in the future. This happened to Christ Jeffries the first suspect to be arrested for the Joanna Yeates murder in 2011. Police detention is now governed by the Police Detention and Bail Act 2011 after the Hookway ruling which questioned the time continuation when a suspect was questioned, then released and required to return for questioning, this was a controversial decision with reference to the custody clock and need clarification. The act was quickly rushed through parliament establishing that the custody clock was not a continuous vent but began at each stage questioning. This needs to be looked at in conjunction with Police and Criminal Evidence Act 1984 implemented 1986 where, once a suspect is taken into custody they need to be charged within 36 hours or brought before. magistrates Court for an extension of time for questioning for serious offences or released back into the community.

Question 2

Police Powers to Grant Bail. (Part two)

Answer 2

The police can also give bail to a defendant charged with a offence. In this case the defendant is charged with an offence and bailed to appear at the local Magistrates Court on a set date. The decision on whether or not to grant bail is made by the custody officer under s38 of PACE amended by the Criminal Justice and Public Order Act 1994. The custody officer can refused bail if the suspect’s name and address cannot be discovered, if there is doubts to whether the name and address given is genuine. If any person granted bail fails to surrender to that bail (i.e. Attend at the next stage of the case) they can be arrested and brought before the Magistrates Court.
The police can grant street bail under s4 Criminal Justice Act 2003 this allows police officers to grant bail on the street for minor offences, us freeing up police officers and allowing them to maintain a street presence.

Question 3

Conditional Bail.

Answer 3

The Criminal Justice and Public Order Act 1994 give the police powers to impose conditions on bail. This can include for the suspect to surrender their passport, report at regular intervals to the police station and get another person to stand surety. Conditions are imposed to make sure the suspect surrenders to bail, does not interfere with witnesses, the course of justice or the victim.

Question 4

No Police Bail.

Answer 4

Where the police are not prepared to grant a defendant bail, the defendant must be brought before the Magistrates Court within 36 hours. This is why Magistrates Courts hold remand courts on Saturdays and bank holidays to ensure that the custody clock is not exceeded. Magistrates cannot deal with the case on first hearing therefore they decide on matters of bail. This is known as an early administrative hearing. If bail is declined their next bail hearing can be via prison video link saving the expense of bringing the defendant before the court on each case of their nil renewal until their trail date when the defendant will be presented before the court. In most cases (5/6) defendants are released on police bail until the next stage of their hearing.

Question 5

The Bail Act 1976.

Answer 5

This is the key act that governs bail. There is a presumption in favour of bail, particularly since the Human Rights Act 1998 article 6 schedule 1 where all suspects should be granted bail unless it is believed that the defendant will:

1) Fail to surrender to custody.
2) Commit an offence while on bail.
3) Interfere with witnesses, the victim or obstruct the course of justice.

Question 6

Schedule 1 para 9 Bail Act 1976.

Answer 6

The court can also refuse bail if it is satisfied that the defendant should be kept in custody for their own protection. Also the presumption is removed where e defendant had committed triangle either way or indictable offence while previously on bail. Other factors that will be taken into consideration under schedule 1 para 9 Bail Act 1976 when deciding to grant or refuse bail are:
1) Nature and seriousness of the offence.
2) He character, antecedent (past record), associations and community ties of the defendant.
3) Antecedent history in respect of the fulfilment of bail conditions in past and previous convictions.
4) The strength of the evidence against them.
5) Domestic violence issues.
If the defendant is charged with a offence which is not punishable by imprisonment then they can only be declined bail if the defendant has refused to adhere to bail conditions in the past and there are grounds for believing that they will not surrender to bail on this occasion. Conditions of bail can be granted in the same way as the police can grant conditions, but the court can also insist on a residency order or a bail hostel.

Question 7

Sureties.

Answer 7

The court or the police cam require a surety. This is where another person is prepared to promise to pay the court. Certain sum of money if the defendant fails to attend court. This promise is called a recognisance and no money is paid unless the defendant fails to answer to his bail.

Question 8

Renewed Applications and Appeals.

Answer 8

Normally only one further application can be made to the magistrates, unless there is a change of circumstances. The defendant can appeal against a refusal to grant bail and this is made to the judge at the Crown Court. A defendant who has been committed for trial at the Crown Court can also apply for bail at this court.

Question 9

Restrictions on Bail.

Answer 9

The right to liberty is a human right under Article 5 ECHR backed up by the Human Rights Act 1998 this means that even in the most serious cases bail must be available if appropriate. Whilst accepting that freedom is an important human right, errors can occur in serious cases. For example, Gary Weddell 2010, Adam Swellings 2010 and Julian Assange 2012.

Question 10

Gary Weddell 2010.

Answer 10

Was bailed after being charged with the murder of his wife, he then murdered his mother in law Trudie Maxfield while on bail before killing himself.

Question 11

Adam Swellings 2010.

Answer 11

Had been released on bail hours before he kicked to death Gary Newlove outside his own home.

Question 12

Julian Assange 2012.

Answer 12

Founder of Wikkileaks, an extradition order was filed from USA for him to answer charges about leaking military information. Also, since 2010 he was also placed on a European Arrest Warrent to answer sexual assault charges in Sweden. In 2012 the Supreme Court dismissed his appeal against the Warrent and since then he failed to abide by his bail conditions and taken diplomatic asylum in e Ecuadorian Embassy in London.

Question 13

Repeat Serious Offenders.

Answer 13

Where a person is charged with murder, attempting murder, rape, attempting rape or manslaughter and they have already served a custodial sentence for a similar offence, they only have the right to bail in exceptional circumstances.

Question 14

Offences Committed while on Bail.

Answer 14

Where a defendant aged 18 or over was on bail when they committed the present alleged offence, under s14 of the Criminal Justice Act 2003 which amends the Bail Act 1979 “he may not be granted bail unless the court is satisfied that there is no significant risk of his committing an offence on bail.”

Question 15

Restrictions on Bail for Adult Drug Users.

Answer 15

Under the Criminal Justice Act 2003 s19 there are restrictions on bail for adult offenders who test positive for Class A drugs where:
- The defendant is charged with possession or intent to supply.
- The court is satisfied that there are substantial grounds for believing that the misuse of Class A drugs contributed to the offence, or that the offence was motivated partly or wholly by the intended misuse of drugs.
- The defendant has refused to agree to participate in an assessment follow up programme in relation to his dependency.
Such a defendant is granted bail the prosecution has the right to appeal to a judge in the Crown Court against the decision.

Question 16

Balancing the Conflict of Interest.

Answer 16

There is a problem in balancing the conflicting interests of the defendant who is presumed innocent until proven guilty, and is therefore entitled to his Liberty, against the needs of them bloc to be protected from potential dangerous criminals, is was the case in Hagan 1992 when, while he was on bail committed murder. To protect the public and to aim to prevent re-offending, bail hostels, electronic tagging and regular reporting to the police station are used, along with door step curfews where the police will call for the suspect to produce themselves at their place of residency.
It is argued that too many people are refused bail, as about 10% of prisoners are on the remand wing waiting trial. If they’re found not guilty there is no compensation for he time that they spent on the remand wing, if found guilty that time is taken off their sentence. Even when the defendant is found guilty up to 60% are not given a custodial sentence.

Question 17

Advantages.

Answer 17

1) A Reduction in the number of defendants on the remand wing therefore saving costs.
2) 20% those awaiting trial in our prisoner may be found innocent or given a non custodial sentence.
3) Defendant can remain in employment, spend time with family and prove to the court and police that hey can be trusted to comply with bail conditions.
4) Defendant can use time freely to prepare for the trial without restrictions.

Question 18

Disadvantages.

Answer 18

1) Risk of interference with witnesses or the victim.
2) Risk of obstructing the course of justice where Michael Donovan and Karen Matthews 2008 were released and had opportunity to conceal evidence. They staged the kidnapping of Karen’s daughter with the view off raising a ransom of £5000.
3) It is believed that a third of burglaries are committed by people while on bail,
4) Home Office statistics state that 12% of offenders fail to appear at sir trial, therefore there is the risk of absconding by bail conditions.

Question 19

Conclusion.

Answer 19

In spite of the problems with bail and the several amendments to the main provisions of bail established in the Bail Act 1976, it generally permits the freedom of the alleged criminal in accordance with their human rights until the next stage of their trial. It also permits the alleged offender to prove to the court that they can be trusted to abide by such conditions.

Question 20

Introduction.

Answer 20

Bail is an important pre-trial matter and is mainly government by the Bail Act 1976. Bail is the decision of whether a defendant is to remain at liberty and be released back into the community until the next stage of their trail or being remanded in custody by being sent to the remand wing of a prison. Bail can be granted by the police or by the magistrates at Magistrates Court with the exception of murder in which case since May 2010 bail must be decided by the judge at Crown Court. Under the Legal Aid Sentencing and Punishment of Offenders Act 2012 for magistrates or a judge to rule that a defendant should be kept in custody there must be a realistic prospect that if found guilty of the offence that they are accused of, there is a likely chance that a custodial sentence will be awarded.