Chap 3 Bail and Remands Flashcards
When is it likely the court will determine to adjourn a case?
-Whether a D appears before the court the court in and a requisition / summons, or on bail.
- In custody having been charged, many cases cannot be concluded at that first hearing
- but to have an application for an adjournment it has to be justified
-S.10 McA-> court power to adjourn for SOO and EWA from a determination in favour of favour of summary trial until conviction
-S.18 MCA -> applies to EWA offences until allocation has been determined
-> This adjournment can be challenged by way of JR
-> to succeed need to be shown that the decision was “plainly wrong”
The HC only interfere in the JR if there is compelling reasons to do so
When a case is adjourned, the Defendant will usually be remanded, either on bail or in custody
rmbr either on 1) bail 2) custody
This places the person under an obligation to attend court on the next occasion or as directed by the court.
The court has the discretion to adjourn a case without a remand up to the point of conviction where the accused appears before the court, having been charged with SOO
Is this the same case for EWA?
But where the accused is charged with EWA the court only has the discretion to adjourn a case without remand if:
a) The accused initially appeared by way of requisition or summons ( as opposed to being brought in custody or answering police bail)
b) The accused has not prev been remanded.
Any D answering bail must be remanded( on bail or in custody) as must any D appearing in custody
Where there is a remand, the adjournment date must be fixed at the time of the adjournment
What does s.18 of the MCA 1980 apply to?
Either way offences until allocation has been determined.
What does s.10 of the MCA 1980 apply to?
Summary only offences up until conviction and either way offences from a determination in favour of summary trial until conviction.
What can the grant or refusal of an adjournment be challenged by?
Judicial review.
Under what condition will the High Court interfere with a decision on adjournment?
If the decision was ‘plainly wrong’.
What is the maximum period for which a magistrates’ court may remand an accused in custody until the next hearing?
Eight clear days
It follows that a D may be remanded in custody at several separate hearings before the case is sent to CC or concluded in the MC
The D may be remanded for a period greater then eight clear days if he is REMANDED ON BAIL ( then in custody) and both he and the prosecution agree to a longer period of remand.
What is the purpose of the Prosecution of Offences Act 1985?
To ensure that trials on indictment take place within a reasonable time.
Does D who answer bail or in custody must be remanded , likewise does this apply to D answer in custody must they be remanded?
Yes they must be remanded
Where a case is remanded, what other things need to be done?
- The adjourment date must be fixed at the time of the adjournment
What is the maximum period that the court may remand accused in custody until the next hearing
S.128(6) = 8 clear days
D may be remanded in custody at several seperate hearing before the case is sent to CC or concluded in MC
If the person is remanded on bail, the D may be remanded for greater then 8 days ( REMEMBER FOR BAIL CAN BE MORE, BUT IF REMAND ON CUSTODY ONLY 8)
What are custody time limits (CTLs)?
The maximum amount of time that a Defendant can be remanded in custody while the Prosecution completes the various stages of a case.
What is the CTL from the first appearance to summary trial for a summary only offence?.
56 days.
But rmbr that it can be reduced to 56 days from first appearance to summary trial if allocation decision is made in fav of summary trial within 56 days
What is the CTL for indictable only offences and either-way offences sent to the Crown Court?
182 days.
If the COA order for a re-trial or the preferment of voluntary bill of indictment then how many days in CTL
112 days
What happens if the custody time limit expires?
The Defendant must be granted bail.
Can CTL be extended?
Yes can if by antime the CC or MC if satisfied the P has acted “within Due diligence expedition” and there is “good and sufficient cause”
What does the Bail Act 1976 govern?
The grant of bail in criminal proceedings.
What does s.128(1) of the Bail Act 1976 allow?
A remand by a magistrates’ court to be made either on bail (with or without conditions) or in custody.
What is the presumption in favour of bail according to s.4(1) of the Bail Act 1976?
There is a presumption in favour of the granting of bail.
But rmbr this presumption don’t apply if they have been convicted, unless they being remanded for prep of reports prior to sentencing
base line: don’t apply if person appealing their conviction from MC to CC
Same also to murder, attempt murder, rape and other Sexual offence act
What about murder can a person be granted bail in MC?
No rmbr a person can only be granted bail by CC can, within 48 hrs of the day after the date of appearance on the MC
What are the grounds for refusing bail?
- Fail to surrender to custody
- Commit a further offence whilst on bail
- Interfere with witnesses or obstruct the course of justice.
But this presumption does not apply once someone has been ( these are not grounds these are reasons) :
a) convicted
b) unless they are being remanded for the preparation of reports prior to sentencing ( don’t apply to a person appealing their conviction from the mc to CC)
c) person charged without murder may not be granted bail unless the court satisfied that there is no sig risk that he will commit an offence
d) Person is charged with murder, attempted murder, manslaugter, rape, attempted rape or certain other offences under SOA 2003 * may not be granted bail* if they have a prev conviction for one of those offenses unless there are exceptional circumstances.
What must the prosecution establish to secure a remand in custody?
Only one ground.
What factors might be considered as reasons for withholding bail?
- Nature and seriousness of the offence
- Character and community ties
- Record of answering to bail
- Strength of evidence
- Risk of causing harm to others.
RMBR COUT CAN WITHHOLD BAIL IF THEY THINK D WOULD COMMIT AN OFFENCE THAT WOULD INVOLVE THE CUASING OF PHYSICAL OR MENTAL INJURY, OR FEAR OF SUCH AN INJURY TO AN ASSOCIATED PERSON
What does the court consider when deciding whether to grant bail?
Substantial grounds for believing the defendant would commit an offence or fail to surrender.
should bail be granted when the person is serving a custodial sentence
no they should not be granted bail
Should bail be granted where D have been granted bail in this proceedings, but then absconded?
Should not, but this is subject to D being an adult and other being a real prospect of custodial sentence
What is meant by ‘unconditional bail’?
It merely places the defendant under an obligation to surrender to the court on the next hearing date.
What common conditions might be imposed on bail?
- Residence
- Reporting on given days to a named police station
- Curfew
- Exclusion from a place or area.
What is required for conditions to be imposed on bail?
They must be necessary to address one of the grounds for withholding bail.
What is the procedure for varying bail conditions?
Applications should be made in writing 2 business days in advance.
can you list out a few bail conditions
Residence
obligation to notify any change in address
reporting on given days to police station
Curfew
exclusion from a place or area
surrender of passport
security
Can bail hearings take place in the absence of the defendant?
Yes, if they have waived their right to attend or have been present previously.
What must happen during a bail application hearing?
The prosecution outlines objections and the defence argues for bail.
How many bail applications is a defendant entitled to make?
Two.
What must the prosecution do even if no application for bail is made by the defence?
Set out in brief the objections to bail
The court must provide reasons for refusing bail.
What is the duty of every court regarding bail at each hearing according to the Bail Act?
To consider the bail position
In practice, the status quo is preserved unless an application is made.
How many bail applications can a defendant make in the magistrates’ court?
Two bail applications
They should be made at the first and second hearings respectively.
can bail application be heard in public and private, or in both
it can be both
What happens if a defendant does not apply for bail at the first hearing?
They will only get one opportunity at bail in the magistrates’ court.
What is required when making an application to a Crown Court judge?
A “full argument certificate” must be submitted with the written notice of appeal.
What must be done if the application for bail is opposed by the prosecution?
The prosecution must serve notice of the reasons for opposing bail.
What determines whether a further bail application can be made?
A change in circumstances of considerable significance.
What does the S1 Bail (Amendment) Act 1993 allow the CPS to do?
Appeal to the Crown Court any grant of bail made by the magistrates’ court for imprisonable offences.
What is the timeframe for a re-hearing after a bail appeal is made?
Within 48 hours, excluding weekends and public holidays.
What is the consequence of breaching any condition of bail?
The defendant is at risk of being arrested and brought before the magistrates’ court.
Under what circumstances can police arrest without warrant for a bail breach?
If they have reasonable grounds to believe the defendant is likely to breach bail conditions.
What must happen within 24 hours of a defendant’s arrest for a bail breach?
They must be brought before the magistrates’ court.
Is breaching bail considered an offence?
No, breaching bail is not an offence.
is breaching bail condition an offence?
yes breaching bail conditons is an offence under S.7
The police may arrest without warrant if they have reasonable belief that D is not likely to surrender to custody, has breached or is likely to breach a bail condition
rmrb that the D must be taken to MC within 24hrs of the arrest or else have to be released
Allege breaches of bail is dealt in MC
What is the question for magistrates regarding a bail breach?
Whether the defendant is likely to fail to surrender or has broken the conditions of bail.
What happens if a defendant fails to answer bail?
They will usually be arrested following the issuing of a warrant.
What is the burden of showing reasonable excuse for failing to surrender?
It is on the defendant.
What are the maximum sentences for failing to surrender in the Crown Court and magistrates’ court respectively?
12 months imprisonment in Crown Court; 3 months imprisonment in magistrates’ court.
Bail all cases commences where?
A: It commences in the MC, so the first decision re bail is made by the court ( except murder cases -> only CC judge can grant bail )
CTL Time limit
70 days
70 days from first appearance in magistrates’ court to start of summary trial for an e/w offence but reduced to 56 days from first appearance to summary trial *if the allocation decision is made in favour of summary trial *within 56 days.
Grounds for witholding bail
1) D need not released on bail if court believe substantial ground that the commit offense that cause physical or mental injury to “associated person”
2) Bail need not be granted where the instant offense is indictable and D was alrdy on bail for another offence
3) bail not granted where court satisfied its necessary to remand D in custody for his own protection
4) bail not granted when serving custodial sentence
5) Bail not granted when satisfied that there has not been enough time to gather suff info to make a decision
6) Bail need not be granted where D, having been granted bail in the current proceedings, has then absconded.
7) Imp) An adult who is charged with Class A drugs offence and who has tested positive class A drugs “MAY NOT” be granted bail unless either the court finds there is no risk of further offending or he agrees to a drug assessment.
Breach of bail condition will put a D at risk of being arrested and brought before the MC
- The police may arrest wihtout warrant if they have reasonable grounds for believing D is not likely to surrender to custody, has breached or is likely to breach a bail condition
- The D MUST be brought to Mc for the area in which the breach took place within 24hrs of the arrest. IF the D is not brought to the court within 24 hrs, he must be released.
- BUT breaching bail is not an offence and the only penalty is to REMAND IN CUSTODY ALTHOUGH THIS DOES NOT AUTO FOLOW, especially where the breach is minor and not frustrated the purpose of conditions
What is an adjournment
It’s when the court postpones th case to another hearing on another day
Application for an adjournment must be justified
Under what power does the MC have to adjourn cases
Under S.10 and S.18 MCA 1980
S.18= for EWA until allocation has been determined
S.10= applies to SOO up until conviction and EWA offenses from a determination in fav of summary trial until conviction
Sentencing guidelines what if the D fail to surrender whatis the court likely to order?
The CC max sentence is 12 months imprisonment and
The MC max sentence is 3 months
RMBR POLICE CAN ARREST IF REASONABLE SUSPICION BREACH BAIL CONDITION BUT BREACHING IT IS NOT AN OFFENCE
The technical trio (what is it) ,when court consider need not grant bail
1) Accuse own protection
2) Already serving custodial sentence
3) Insufficient time
IF D isnt happy with bail conditions, what can the D do , where should he appeal?
The first application must be made to MC, thereafter can appeal to cC
A person on drugs, and then steal should he be granted bail?
The person dont lose right to bail, but it should not be granted for fear of committing further offense.
IF P cant get the evidence and applied for adjournment due to evidence needed, but then the CTL is going to run out soon, what can the CPS do?
IF cant obtain the evidence, within the days they need to apply within that time for an extension of CTL. But once expired then, court no option to grant bail on the expiry of CTL, the P must make application before the expiry of CTL
Can a CTL be extended more then once?
Yes the CTL can be extended more then once, so long as the P show that they all acted with “all due diligence and expedition” and that there is “good and sufficient cause” for extending the CTL
Within how many days must a case be relisted in the MC if a D is remanded in custody
The eight clear day applies
When calculating the CTL remember what is the CTL if case has been sent for trial for EWA
It will be 182 days. if lets say the person is remanded in custody for 7 days need to deduct.
so when the CTL will expire is
182 days-7 days: 175 days.
can bail be granted where got rape? ,If it was murder would it be different?
Bail can be granted but need to show EXCEPTIONAL CIRCUMSTANCES TO GRANT IT
IF THE CHARGE WAS MURDER, THE QUESTION OF BAIL WOULD NEED TO BE DETERMINED IN CC
if want to appeal decision of MC what should D
seek for JR in MC
Fail to attend bail hearing is that a offence
yes, but remember that is breaching bail condition,
