Criminal Litigation - Bail applications (7) Flashcards
What are bail applications?
Bail Applications: Defendants have the right to be granted bail without condition on adjournment of a court hearing, unless an exclusion applies or the prosecution objects on relevant grounds. If so, the defendant must apply for bail (Bail Act 1976).
Who has the right to bail?
The Right to Bail: Defendants have the right to bail without condition, unless an exclusion or valid objection applies (s4).
What are the exclusions to the right to bail?
Exclusions to Right to Bail: The general right to bail does not apply in the following circumstances:
(1) Murder: Defendants charged with murder can only be granted bail by a Crown Court Judge (within 48 hours of remittal). Judges must be satisfied the Defendant poses no significant risk of physical or mental injury to the public.
(2) Other Serious Offences: Defendants charged with manslaughter, serious sexual offences, and attempts thereof may be granted bail only in exceptional circumstances.
(3) Appellants in Custody: There is no general right to bail for appellants when appealing from prison.
What are the grounds for objecting bail?
Grounds for Objecting Bail: The prosecution can challenge the right to bail. The following grounds exist in relation to imprisonable either-way and indictable-only offences.
(1) Failure to Surrender: There is reason to believe the Defendant will fail to surrender to custody (abscondment).
(2) Further Offences: There is reason to believe the Defendant will commit further offences whilst on bail.
(3) Obstruction: There is reason to believe the Defendant will interfere with witnesses or obstruct justice on bail.
(4) Factors: There must be substantial reason to believe there is a real risk of one or more of the above grounds occurring. This is argued (and countered) with reference to the following factors, the relevance of which will differ:
Seriousness of Offence: The seriousness of the offence and likelihood of a custodial sentence.
Character and Antecedents: The relevance and seriousness of previous convictions and antecedents.
Associations: Association of the Defendant to other criminals or any witnesses, and the effect thereof.
Community Ties: Ties of the Defendant to the local area, or other jurisdictions, and the effect thereof.
Bail History: The Defendant’s previous behaviour on bail (or breach of other orders).
Strength of Evidence: The strength of evidence against the Defendant.
When does the court have discretion not to grant bail?
Protection and Welfare: The court has discretion to deny bail in the interests of protecting an adult defendant from harm, or protecting the welfare of a youth defendant.
What is the no real prospect of custody exception?
No Real Prospect of Custody: Where there is no real prospect of an adult defendant being imprisoned, and they have not previously been convicted of an offence in the proceedings, the court must grant bail.
What is the bail application procedure?
Bail Application Procedure: Where remand in custody is sought by the Prosecution, a Defendant must apply for bail using any argument of fact or law they deem appropriate.
(1) Prosecution Materials: The CPS must supply the Defendant and court with all material information as soon as practicable, outlining their grounds and factors for opposing bail.
(2) Bail Application: The Defendant must respond to each ground of objection and the relevance of each applicable factor, with supporting evidence. Conditions may be suggested in order to persuade the court to grant bail.
(3) Outcome: The court can decide whether or not to grant bail, as reasoned in a Certificate of Full Argument.
What further bail applications should be made after the first one?
Further Applications: The Magistrates must consider bail at every subsequent hearing.
(1) Second Bail Application: The Defendant is permitted one further full bail application in the Magistrates’ Court, and can present both existing and new arguments of fact and law.
(2) Further Applications: The Defendant is only permitted further applications on the basis of new arguments of fact and law.
Can a bail decision be appealed?
Defendant
Appeals Against Decision: The Defendant can appeal against a decision to deny bail in the Magistrates at the Crown Court. This is best utilised after denial of a second full bail application. This can also be used to vary conditions.
(1) Notice of Appeal: The Defendant must apply as soon as practicable after the relevant refusal, serving notice on both courts and the prosecution their grounds, offences, any conditions, and supporting evidence (incl. witnesses).
(2) Notice of Opposal: The prosecution must then serve notice of its opposition to bail (including reasoning) on the Crown Court and the defence as soon as possible.
(3) Chambers Hearing: A Crown Court Judge will hear representations from both sides in chambers, as soon as practicable and no more than 1 business day after notice of appeal (unless extended).
(4) Outcome: The Judge will grant or refuse appeal. If granted, a copy of the order must be sent to the facility housing the defendant in order to release them.
Can a bail decision be appealed?
Prosecution
Appeals by Prosecution: The prosecution can appeal against a decision to grant bail to a defendant charged with an imprisonable offence, provided they also attempted to oppose bail at the first hearing.
(1) Notice of Appeal: The prosecution must give oral notice to the court at the first bail hearing and prior to the Defendant’s release from custody. This must be confirmed in writing and served on the Defendant within 2 hours.
(2) Chambers Hearing: A Crown Court Judge will hear the appeal in chambers, as soon as possible and no more than 2 days following service of notice.
(3) Outcome: The Judge will grant or refuse appeal. The Defendant remains in custody until the outcome is made. Prosecutors must use the appeal process ‘judiciously and responsibly’ (Code for Crown Prosecutors).
What is conditional bail?
Conditional Bail: Bail can be granted with conditions. These conditions are often suggested by the Defendant in a bail application, if they would allay the fears raised by the prosecution. Conditions must satisfy one of three aims:
(1) Prevention: Preventing abscondment, further offences, or obstruction of justice.
(2) Availability: Ensuring availability of the Defendant for medical treatment, solicitor contact, or otherwise.
(3) Protection: Protecting the Defendant from harm (or protecting the welfare of a youth defendant).
What conditions can be imposed on bail?
Surety
>‘Surety’ (third-party) gives a sum to court.
>If the defendant absconds, the sum is forfeited.
Security
>Defendant provides security to court.
>If they abscond, the security is forfeited.
Specified residence
>Defendant must reside at a specified residence.
>Ankle tag may be ordered.
Curfew
>Defendant must remain at a specified residence between given hours.
>May be subject to visitation and ankle tagging.
Non-contact
>Defendant must not directly or indirectly contact a specified witness or party.
Geographic restriction
>Defendant must not enter a specific geographic area.
Reporting to a specified party
>Regular contact with solicitor/member of the Probation Service/local police station (usually at set times)
>Usually means they remain in area
Passport surrender
>Defendant must surrender their passport.
>Common if defendant has foreign contacts/assets.
What happens if a defendant fails to surrender?
Failure to Surrender: The Defendant may abscond if he fails to surrender to court as required.
(1) Arrest Warrant: Magistrates must issue an arrest warrant. Generally, the defendant is remanded in custody until next hearing.
(2) Criminal Offence: Abscondment is a criminal offence, and charges may be brought as such. The defendant is guilty unless they had a reasonable cause, and surrendered to custody as soon as possible thereafter (R v Scott).
(3) Criminal Conviction: The defendant may be convicted of abscondment immediately, or alongside the full offence (generally the former).
What happens if a defenant breaches a condition of bail?
Breach of Condition: Breach of any other bail condition is not a criminal offence in itself, but may result in bail being removed or conditions being varied. Time limits.
(1) Arrest as of Right: The police can arrest as of right (without warrant) if they reasonably believe the defendant has or is likely to breach a condition of bail (s7).
(2) Custody Hearing: The defendant is detained, and brought before the magistrates within 24 hours. They must: a) determine that breach occurred; and b) decide on further remand (unless the entire case can be dealt with there).
