Bail - Presumptions and Objectives Flashcards
What is adjournment?
- Where Court cant conclude case
- Case is adjourned
- Does not describe what happens to D
What is remand?
- When D send away and told to come back another day
Where can remand be?
- Custody
- Served in community
- On bail
Who applies for D to be remanded into custody?
Prosecution
How does Prosecution apply for D to be remanded into custody?
Presenting objections to the presumption in favour of bail
When does D apply for bail?
If they receive an objection to bail
Which court commences bail in the first instance?
Always Magistrates, unless murder, which is Crown Court
What is the right to bail?
Court must presume D is entitled to bail.
Only objection can change this.
What about the right to bail in offences like murder?
Statute appears to remove the presumption
Does the right to bail apply when a person is alleged to have breached a requirement of a community order?
Yes, it does.
What happens if a case is not progressing according to time limits?
The right to bail for the Defendant becomes absolute.
When does the right of bail (the presumption) not apply?
1) Those appealing conviction / sentence
2) D being committed for sentence from Magistrates to Crown Court
Can D be granted bail even if the presumption (right to bail) does not apply?
Yes, it is simply the fact that the presumption is not there. But they can still apply.
What are the distinction of offences relevant to bail?
1) Indictable cases
2) Summary cases, imprisonable
3) Summary cases, non-imprisonable
What are the objections that one can take on bail called?
Grounds of objection.
What are the “substantial grounds” against bail?
1) Fail to attend subsequent hearing (failure to surrender to custody);
2) Commit further offences on bail; and/or
3) Interfere with witnesses, otherwise obstruct the course of justice
What is the threshold to be reached in arguing substantial grounds against bail (indictable offence)?
Only necessary to show that this behaviour has substance and merit.
Although no formal rules.
What type of evidence is allowed in a bail objection / application (indictable offence)? Is Hearsay allowed?
1) Witness evidence
2) Hearsay evidence is permitted
What is the no real prospects arm of the law on the objections of bail (indictable offence)?
If there is no real prospect of D receiving custodial sentence, ground of objection cannot succeed.
Is it possible for an indictable offence not to have a custodial sentence? Give an example.
Yes. Theft is indictable, but can be done for stealing a banana.
When can bail be rejected for summay offences?
If breach of condition or failure to surrender in past, bail can be rejected
When are the grounds against right to bail activated for a summary offence?
If D has been arrested for a breach of bail either now or in the past
When does “need not be granted bail” apply?
If one of these are applicable, the above applies.
1) A remand in custody for D’s own protection
2) Court has insufficient information to deal with bail, so short custody for production of such information
3) D already serving a sentence in custody
What are the “specialist” grounds against bail? Give an example.
Offence specific. For example, D might commit offence or harm to an ‘associated person’ (i.e. a domestic violence case).
What cases are their typically special provisions for?
- Serious cases (i.e. rape, murder)
- Cases of particular character (drugs, domestic violence)
What test / objections are required in a case of objecting bail with special provisions for serious cases?
- Apply more stringent test
- General objections cease to apply
What grounds can you use for special provisions for cases of particular character?
Can use additional grounds or rely on the general grounds
What is the process if D is charged with murder?
The Court will check if D has a pre-conviction for murder, attempted murder, rape or a serious sexual offence. If they do, they may not be granted bail unless exceptional circumstances justify it.
When can D be granted bail for murder?
If there is no significant risk of D causing an offence likely to cause physical or mental injury.
What is the process if D is charged with attempted murder, rape, serious sexual offence etc?
The Court will check if D has a pre-conviction for murder, attempted murder, rape or a serious sexual offence. If they do, they may not be granted bail unless exceptional circumstances justify it.
When would bail be refused if D is charged with an offence carrying life imprisonment?
If there is a significant risk of further offences being committed or failure to attend (whilst on bail)
When would bail be rejected for bail if D is charged with offence against partner or family?
D not granted bail for imprisonable offence if:
A) Substantial grounds D will commit offence on bail
B) Likely cause physical / mental injury to associated person
What is an associated person in an offence against partner or family?
A spouse, partner or family member.
When are the grounds against bail for offence against partner or family applicable in non-imprisonable offences?
If there has been a breach of bail.
When could bail be refused for an offence of drugs?
A) Test shows D has class A drugs in body
B) Offence motivated by Class A drugs
When can court grant bail in case where there is an abuse of drugs?
If no significant risk of D committing an offence on bail.
What happens to bail if D was on bail at the time of the offence? (indictable and summary)
If indictable offence – court need not grant bail.
If summary imprisonable offence – court need not grant bail if substantial grounds for believing D will commit further offence.
What happens if D absconds whilst on bail for indictable offence?
Need not grant bail. Unless prior to conviction and no realistic prospect of D receiving custodial sentence.
What are factors when considering the grounds for objection to bail?
a) The nature and seriousness of offence and likely sentence
b) The character of D, D’s antecedents, associations and community ties
a. Bail record in past
c) Strength of evidence
What are antecedents?
Previous convictions that can make custodial sentence more likely
What could be included in the character of D?
Personal circumstances – such as drug addictions
What could D’s associations include?
Friends with criminal records
What is the purpose of examining D’s community ties?
How easy it is for D to abscond. E.g. – married with a job? D is less likely to disappear as opposed to someone of ‘no fixed abode.’
What is the important difference between factors and grounds?
The grounds are actual grounds. Factors are simply supporting points. Factors alone cannot be used.
Which factors are relevant to the ground of failure to surrender?
A) The nature and seriousness
B) Character of D, antecedents, associations and community dies
a. D’s bail record in the past
C) Strength of evidence
What factors are relevant to ground of committing further offences?
A) The nature and seriousness
B) Character of D, antecedents, associations and community ties
What factors are relevant to the ground of interfering with witnesses?
A) The nature and seriousness
B) The strength of the evidence
