CRIMINAL LAW AND PRACTICE Flashcards
What does ‘adjournment’ mean?
Cannot conclude case in 1 hearing, reconvene another day
What does remand mean? Two options?
D sent away and told to come back to court on another day.
Two options:
1. remand IN CUSTODY
2. remand ON BAIL
Presumption around bail?
Presumption IN FAVOUR of bail
- Prosecution must raise objection to bail if think should be on remand IN CUSTODY
Defence apply for bail -> always in Mags 🥭in first instance - except for Murder - only CC can grant bail for murder.
Both parties can appeal bail decision from Mags.
Exemption to presumption around bail?
The presumption of bail does not apply to:
1. Those appealing conviction/sentence; or
2. Ds being committed for sentence at CC
Defence would therefore need to apply for bail in both these cases.
What are the THREE groups of ‘GROUNDS’ for objecting to Bail?
A. THE BIG THREE
B. TRIO that D ‘NEED NOT’ be granted bail
C. OTHER
What are THE BIG THREE?
For Indictable offences (carrying imprisonment)?
For summary offences?
THE BIG THREE
A. For Indictable Offences (carrying imprisonment) - BIG THREE + Final Filter
1. Substantial grounds for believing D would
either:
a. Fail to attend subsequent hearing (failure to
surrender to custody)
b. Commit further offences on bail
c. Interfere with witnesses, or otherwise
obstruct course of justice
AND 🚪Final Filter: Bail should not be removed under one of these grounds if D is charged with an offence(s) where ‘no real prospect’ of D receiving a custodial sentence.
⚡Substantial grounds for believing = show that fears of behaviour happening have substance and merit - this is a factual enquiry.
B. For Summary offences
Big three only available if TRIGGER EVENT 🔫 activates their availability:
a. D been given bail, breaches condition in
these proceedings; or
b. Has conviction for ‘failure to surrender’ in
past
What does ‘substantial grounds for believing mean?
⚡Substantial grounds for believing = show that fears of behaviour happening have substance and merit - this is a factual enquiry.
What are the ‘NEED NOT’ TRIO?
TRIO : D ‘need not’ be granted bail is any of following exist:
a. Remand in custody would be for D’s own
safety
b. Court has insufficient information to deal with
issue of bail, and so remands in custody for a
(short) period for the production of sufficient
evidence
c. D is already serving a sentence in custody
What are the TWO ‘OTHER’ options
- SERIOUS CASES with high penalties
- Cases of PARTICULAR NATURE THAT AFFECT ASSESSMENT OF RISK posed by D on bail.
How do you deal with cases with particular characteristics that affect risk?
What is rule for option 1?
What is rule for option 2?
Q1: Is D charged with:
a. an offence that suggests D would cause injury
(mental or physical) to a partner or family member;
b. abuse of drugs
IF a. -> D need not be granted bail for any imprisonable offence if the court believes there are SUBSTANTIAL GROUNDS TO BELIEVE THAT D WOULD COMMIT AN OFFENCE ON BAIL BY ENGAGING IN CONDUCT THAT WOULD OR WOULD BE LIKELY TO CAUSE PHYSICAL OR MENTAL INJURY TO AN ASSOCIATED PERSON. An associated person is a spouse, partner or a family member. This ground is available for non-imprisonable offences only if D is arrested under s7 Bail Act for a breach of bail.
If b -> Where: test shows D has CLASS A drug in D’s body AND offence relates to a class A or was caused/motivated by D taking Class A drugs…..THE COURT MAY NOT GRANT BAIL UNLESS THERE IS NO SIGNIFICANT RISK OF D COMMITTING AN OFFENCE ON BAIL.
Serious cases with high penalties - what are the three applicable group of crimes?
- MURDER
- ATTEMPTED MURDER, RAPE, SERIOUS SEXUAL OFFENCE etc
- AN OFFENCE CARRYING LIFE IMPRISONMENT AS MAXIMUM SENTENCE
Is D charged with MURDER (note: only a CC judge can grant bail) - what is the next step?
If D has a previous conviction for:
(i) murder
(ii) attempted murder
(iii) rape
(iv) a serious sexual offence ,
D MAY NOT BE GRANTED BAIL UNLESS THERE ARE EXCEPTIONAL CIRCUMSTANCES TO JUSTIFY IT (note, the present charge and pre-con do not have to be the same offence. If D does not have qualifying pre-con, bail is assessed on usual grounds).
If D does not have such pre-cons, D MAY NOT BE GRANTED BAIL UNLESS THERE IS NO SIGNIFICANT RISK OF D CAUSING AN OFFENCE LIKELY TO CAUSE PHYSICAL OR MENTAL INJURY.
Is D charged with ATTEMPTED MURDER, RAPE, SERIOUS SEXUAL OFFENCES etc?
If D has pre-con for:
(i) murder
(ii) attempted murder
(iii) rape
(iv) a serious sexual offence ,
D MAY NOT BE GRANTED BAIL UNLESS THERE ARE EXCEPTIONAL CIRCUMSTANCES TO JUSTIFY IT (note, the present charge and pre-con do not have to be the same offence. If D does not have qualifying pre-con, bail is assessed on usual grounds).
Is D charged with an offence carrying LIFE IMPRISONMENT AS THE MAXIMUM SENTENCE?
If was was either:
(i) already on bail; and/or
(ii) fails to attend having been on bail.
D MAY NOT BE GRANTED BAIL UNLESS THERE IS NO SIGNIFICANT RISK OF FURTHER OFFENCES BEING COMMITTED OR FAILURE TO ATTEND.
WHAT IS D WAS ON BAIL AT TIME OF THE ALLEGED OFFENCE?
If D is said to have committed an INDICTABLE offence, then the court ‘need not’ grant bail.
If D is said to have committed a SUMMARY IMPRISONABLE offence, then the court ‘need not’ grant bail if there are SUBSTANTIAL grounds for believing D will commit further offences.
If D ABSCONDS WHILST ON BAIL for an indictable offence, then bail need not be granted again, unless it is prior to conviction and there are no realistic prospects of the D receiving a custodial sentence.
Is ground available for failure to surrender (FTS) for:
a. imprisonable offence (indictable)
b. Imprisonable offence (summary only)
c. Non-imprisonable offence
a. YES
b. YES if (i) D has prior FTE or (ii) following s7 Bail Act arrest
c. YES if D has been convicted in the proceedings and either (i) D has prior FTE or (ii) following s7 Bail Act arrest
