Bail, Plea before venue and Allocation

Question 1

Right to Bail

Answer 1

Starting point: presumption in favour of bail

s.4 Bail Act 1976

(Orange tabbing)

Question 2

Exceptions to Right to Bail

Answer 2

Exceptions: Schedule 1 Part 1 Bail Act 1976

PARA 2
Need not grant bail if there are substantial grounds for believing that D would:
- fail to surrender to custody (FTS); or
- commit an offence while on bail; or
- interfere with witnesses or otherwise obstruct the course of justice, whehteri n relation to himself or any other person.

PARA 2A
Need not grant bail if:
- its an indictable offence or an offence triable either way; and
- appears to the court that D was on bail in criminal proceedings on the date of the offence.
(no requirement for substantial grounds, but Para 9 factors still relevant)

s. 25 CJPOA 1994 (not in book - learn!)
- court may not grant bail to a D charged with (or has been convicted of) murder, rape, manslaughter (or attempted), if he has been convicted of any of these offences in the past (whenever), unless the court is satisfied there are exceptional circumstances which justify it”.

Question 3

Paragraph 9 Factors

Answer 3

Must be “substantial grounds” for relying on the exception in Para 2 - decide by reference to the factors in Para 9 of the Schedule (note: still relevant to Para 2A)

(a) nature and seriousness of offence and probable method of dealing with it
(b) character, antecedents, associations and community ties of D
(c) D’s record as respects the fulfiment of his obligations under previous grants of baul in criminal proceedings (e.g. previous FTS)
(d) the strength of the evidence of D having commited the offence
(e) if court satisfied there are substantial grounds D would commit an offence while on bail…the risk that D would do so by engaging in conduct likely to cause physical or mental injury to any person other than the defendant

+ any other factos that appear relevant.

Question 4

Bail Conditions

s.3 of the Bail Act

Answer 4

SURETIES

• surety is a third party - have oblgiation to ensure D surrenders to custody
• Surety will agree to forgeit sum of money if D absconds.

DEPOSIT OF SECURITY

• D made to deposit some valuable item which will be liable for forfeiture if he FTSs
• can be given by third party or D himself.

RESIDENCE
- D must live and sleep at a specified address; police will come round and check

REPORTING

• D will have to report to a local police stationon a regular basis
• riskier the D, the more reports necessary

EXCLUSION
- restriction on D’s movements - i.e. not to go to a certain area or specific place.

CURFEW
- remain indoors during certian hours

BAIL HOSTELS

• provides both residence and curfew
• strict rules (e.g. no alcohol)
• if rules breached, D must leave, and therefore in brach of bail conditions.

SURRENDER OF PASSPORT
- where there is an international element

Question 5

Exam approach to bail question

Answer 5

(1) It’s an indictable offence - Bail Act 1976
(2) s.4 - general presumption in favour of bail
(3) Para 2 or 2A exceptions (and CJPOA s.25)
(4) Para 9 factors - are there substantial grounds?
(5) Relevant bail conditions, if any (be realistic!)

Question 6

Plea Before Venue

Green

Answer 6

First part of the process for an either-way offence is the ‘Plea Before Venue’

Procedure - s.17A Magistrates’ Courts Act 1980:

• charge is read to D
• court will then explain to D that he may indicate whether he would plead guilty or not guilty, if the offence were to proceed to trial.
• court should explain the D that if he pleads guilty, court would then convict him of the offence and proceed to sentencing; but it may also commit him to Crown Court, if it considers its sentencing powers inadequate
• court will then ask D whether he would pleaad guilty or not guilty
• if pleads guilty - move on to consider sentence
• if not guilty, or does not indicate a plea, the court will proceed to allocation.

Question 7

Decision as to Allocation

Answer 7

Where defendant pleads not guilty (or has not indicated an intention to plead guilty) to an EITHER WAY offence - ALLOCATION:

Mags Court must decide whether offence should be sent to Crown Court for trial or remain in Mags Court.
- follow procedure in s.19 Magistrates’ Courts Act 1980

Key test: are the sentencing powers of the Mags Court adequate?

• prosecution will first inform the court of D’s previous convictions, if any
• both prosecution and defence will have oppotunity to make representations as to whether summary trial or trial on indictment would be more appropriate
• court will have refard to Magistrates’ Courts Sentencing Guildelines for specific offence, and overall allocation guidelines (see next entry)

Question 8

Allocation Guidelines

Answer 8

For Allocation, consider:

• nature of the case
• whether the circumstances make offence one of serious character
• whether the punishment which the magistrates’ court has the power to inflict for it would be adequate
• any other circumstances which appear to the court to make it more sitable for the offence to be tried in the other way rather than the other
• Magistrates sentencing guidelines (for specific offences)

IN GENERAL HOWEVER:

• all cases should be tried at appropriate level
• either way offence should be tried summarily unless powers insufficient
• powers will be insuffucient is outcome is likely to result in sentence over 6 months.

Question 9

End result / decision

Answer 9

s.21 MAGISTRATES’ COURTS ACT 1980

If Mags Court decide that case cannot be tried summarily, will be sent to Crown Court under s.51 (1) CDA, whether the defendant wants to be heard in the Crown Court or not.

s.20 MAGISTRATES’ COURTS ACT 1980

If court considers summary trial more suitable, it will explan to D:

• that the court has decided summary trial more suitable
• that D can consent to be tried summarily or can be tried by jury if he so wishes
• that if he is tried summarily and convicted, he may still be commited to the Crown Court for sentence.

Before making decsion, D can ask for indication of sentence (custodial or non-custodial) if he pleaded guilty

Court not obliged to provide indication, but if it does, D has chance to reconsider plea.

D will either:

• consent to trial in Mags Court
• elect to be tried by jury - will be sent immediately to Crown Court

(If court indicated non-custodial sentence and D pleaded guilty, that indication will bind the court and subequent benches
- but if D does not change plea, does not bind court).