Criminal Practice WS2 (Bail)

Question 1

What happens when a case is adjourned (i.e. postponed) by the court?

Answer 1

The defendant will be ‘remanded’.
This is to ensure that they attend the next hearing.

Question 2

What are the time restrictions in remanding in custody pre-conviction and post-conviction?

Answer 2

Pre-conviction
- 3 (72 hours) clear days in custody to a police constable
- 8 clear days in custody to prison

28 clear days in custody to prison when
(a) it has previously remanded them in custody for the same offence; and
(b) they are before the court; and
(c) it can set a date to remand them to on which it expects the next stage of the proceedings
to take place.

Post-conviction
Three weeks in custody for enquiries or reports for stencing
Four weeks on bail

Question 3

What are the custody time limits for summary only offence?

Answer 3

56 days

Question 4

How can a defendant be remanded?

Answer 4

A defendant can be remanded in 3 ways:

(a) a remand in custody;
(b) a remand on bail with conditions attached to that bail; or
(c) a remand on unconditional bail

This is to ensure that they attend the next hearing.

Question 5

What are the custody time limits for cases sent to the crown court (from the first appearance in the magistrates court to committal to the Crown Court)?

Answer 5

70 days

Question 6

What are the custody time limits for either way offences?

Answer 6

70 days for either way offences being tried in magistrates court

56 days (reduced) if an allocation hearing is held within the first 56 days.

Question 7

What are the custody time limits for indictable only offences?

Answer 7

182 days.

Question 8

How can a prosecution make a this application to extend the custody time limit?

Answer 8

Can be made
- orally
- in writing

A written notice of intention must be served on the court and the defendant not less than 2 days before the hearing in the magistrates court.

If the magistrates grant a
prosecution application to extend the custody time limit, the defendant has a right of appeal
to the Crown Court. Similarly, the prosecution may appeal to the Crown Court against the
magistrates’ refusal to extend the custody time limit.

Question 9

What happens if the prosecution do not make an application to extend the custody limit and the time has come to an end i.e. 70 days is up?

Answer 9

The defendant must be released on bail until his trail.

Question 10

What does ‘remand on bail’ mean?

Answer 10

A defendant who is on bail may be remanded prior to conviction for any period of time, subject to the defendant’s consent.

Question 11

What does ‘Remands after case committed or sent to Crown Court’ mean?

Answer 11

A defendant who is committed to the Crown Court for sentence, or whose case is sent to the Crown Court for trial, may be remanded in custody or on bail until the case comes before the Crown Court.

Question 12

What are remands after conviction?

Answer 12

Following conviction, a defendant may be remanded in custody before sentence (usually for the preparation of pre- sentence reports) for successive periods of not more than three weeks.

If the defendant is remanded on bail, this may be for successive periods of
not more than four weeks.

Question 13

What is the presumption of bail under s4 Bail Act 1976?

Answer 13

There is a presumption that bail will be granted to:
(a) All defendants prior to conviction.
(b) Defendants who have been convicted, if their case has been adjourned for
the court to obtain reports before sentencing.
(c) Defendants who are appearing before the court for breach of a community
sentence.

The presumption DOES NOT apply to defendants:
- Who have been committed to the Crown Court for sentence.
- Who are appealing against a conviction or sentence.

Question 14

What offences do not have the right to bail?

Answer 14

Right to bail doesn’t apply to:
- Murder or attempted murder
- Manslaughter.
- Rape or attempted rape.
- Other serious sexual offences.

Question 15

What are the exceptions to right to bail?

Answer 15

The right to bail can be rebutted for indictable and either way offences (Schedule 1, Bail Act 1976)

The most important and common ground is para 2(1), which requires there to be substantial grounds for believing that the defendant will, if released on bail:

• Fail to surrender to custody.
• Commit an offence whilst on bail, or
• Interfere with witnesses or otherwise obstruct the course of justice whether in relation to himself or any other person.

Question 16

What factors does the court take into account to refuse the right to bail?

Answer 16

1) Nature and seriousness of the offence
- substantial grounds for believing that the defendant would fail to surrender to custody if they were to be granted bail
- are there any aggravating factors which would lead to a harsher sentence, e.g. previous convictions, suspended sentence?
- if there were previous convictions when were these, has the defendant changed?

2) The character, family, associations and community of the defendant.
Character = defendant’s criminal record, are they a serial offender, how recent were their convictions
Antecedents, Associations and Community Ties = is the defendant involved in a gang, known to associate with criminals, strong ties with the local area, permanent address, job or family in the area?

3) The defendant’s record in respect of previous grants of bail
- If the defendant has absconded previously, - likely to be indicative that he will do so again.
- was there a good reason why they did so, deliberate or did they mix up arrested, did they get arrested or hand him in.

Question 17

What kind of grounds does the CPS need to prove in order to refuse a defendants right to bail?

Answer 17

Needs to be strong, substantial grounds for believing that the defendant would fail to surrender to custody.

Question 18

Where a defendant is charged with a summary offence which carries a custodial sentence, on what grounds can bail be refused?

Answer 18

a) Failure to surrender
i.e. the defendant has previously failed to surrender to custory

b) Commission of further offence
i.e. instant offence was committed on bail

c) Fear of commission of offences likely to cause another person to suffer or fear physical or mental inury

d) Defendant’s own protection (or welfare if a youth)

e) Defendant serving custody

f) Fear of failure to surrender, commission of offences, interference with witnesses or obstruction of justice;

i.e. if the defendant has been arrested for breach of bail in respect of the instant offence;

g) Lack of sufficient information

Question 19

Where a defendant is charged with a non-imprisonable offence what is the right to bail?

Answer 19

It is extremely rare for bail not to be granted where the defendant is charged with a non-imprisonable offence.

Bail can only be refused if ONE of the following circumstances applies:

(a) The defendant failed to surrender to custody while on bail in previous criminal proceedings and the court believes that they will do it again;

(b) The defendant needs to be kept in custody for his own protection (e.g. a young person or for their own welfare)

(c) The defendant is currently serving a custodial sentence in respect of a separate offence

(d) The defendant:
- Was granted bail at an earlier hearing in the same proceedings, but
- Has been arrested either for failing to answer his bail or for breaking any conditions of his bail,

The court is satisfied that there are substantial grounds for believing that, if released on bail, the defendant would:
- Fail to surrender to custody
- Commit an offence
- Interfere with witnesses or otherwise obstruct the course of justice

Question 20

Can bail be granted on a murder case?

Answer 20

Bail may not be granted unless the court is satisfied that there is

‘no significant risk’ that, if released on bail, the defendant would commit an offence that would be likely to cause physical or mental injury to another person.

Only crown court judge may grant bail, magistrates court have no power to do so.

Question 21

When does a crown court judge make a decision about bail?

Answer 21

It must do so ‘forthwith’ i.e. immediately to the Crown Court, as soon as reasonably practicable and within 48 hours beginning the day after the defendant appears or is brought before the magistrates court.

48 hours = excludes weekends, bank holidays and public holidays.

Question 22

Can bail be granted on homicide or rape case?

Answer 22

Bail shall not be granted if the court is of the opinion that there are ‘exceptional circumstances’ justifying the grant of bail.

Homocide = only applies to manslaughter cases where the previous conviction resulted in a sentence imprisonment.

Question 23

What are the consequences of the refusal of bail?

Answer 23

Magistrates = under a duty to consider bail at any subsequent hearing (so long as the defendant is still in custody and the presumption in favour of bail still applies).

First hearing:
- At the first hearing, after the hearing where the court refused to grant the defendant bail, the defendant is permitted to make ONE FURTHER FULL application for bail (and raise any argument, even if these have previously been heard and bail was refused (Sch 1, Part IIA, Bail Act 1976).

• Defendant may support an application for bail with any argument as to fact or law that they desire (whether or not they have advanced the argument previously)

Second hearing:
- Court need not hear arguments as to fact or law which it has heard previously.
- Unless there has been a change in circumstances, the court may choose not to entertain an application for bail. A change of circumstances may arise due to passage of time.

Question 24

What is the threshold by which the court grants the right to bail?

Answer 24

HIGH threshold.

The court is satisfied that there are ‘substantial grounds’ for believing that, if released on bail, the defendant would:
- Fail to surrender to custody
- Commit an offence
- Interfere with witnesses or otherwise obstruct the course of justice

Question 25

How is ‘associated person’ defined

Answer 25

Yes includes current, former spouse / civil partner, cohabitant, parent or someone with responsibility.

Question 26

Why are conditions by court put in place when granting bail to a defendant?

Answer 26

A court has the power to grant bail to a defendant subject to the defendant complying with one or more conditions that the court attaches to that bail.

Section 3(6) of the Bail Act 1976
requires that such conditions must be necessary to:
(a) prevent the defendant from absconding;
(b) prevent the defendant committing a further offence whilst on bail;
(c) prevent the defendant interfering with witnesses or obstructing the course of justice;
(d) ensure that the defendant makes himself available for the purpose of obtaining medical
or other reports;
(e) ensure that the defendant keeps an appointment with his solicitor; or
(f) ensure the defendant’s own protection or, in the case of a defendant aged under 18, for
his own welfare or in his own interests.

Question 27

What is the ‘security’ bail condition

(aimed at stopping Absconding)

Answer 27

The defendant will be required to deposit a sum of money (or goods) with the court. If the defendant fails to attend court to answer their bail, they will forfeit the security they have given.

Question 28

What is the ‘reporting to the police bail condition’

(aimed at stopping Absconding and
committing offences
on bail)

Answer 28

The court orders the defendant to report to their local police station on a regular basis (on specified day(s) and time) so the police may ensure that the defendant remains in the local area.

Question 29

What is the ‘non-communication with prosecution witness’ bail condition?

(to stop Committing
offences on bail
and interfering with
a witness)

Answer 29

This condition not only covers direct face- to- face
contact with the witnesses, but also indirect contact
such as through a third party or contacting the
witnesses by telephone or in writing or through any
other means such as social media

Question 30

What is the ‘Restriction on entering specified
areas’ condition?

(Prevents Committing
offences on bail
and interfering with
a witness)

Answer 30

This prevents the defendant from entering a geographical area or town, for example where a prosecution witness resides, or where the defendant habitually commits offences in the same place or type of place, such as theft from a shopping centre or committing assaults in a city centre.

Question 31

When is unconditional bail granted?

Answer 31

The defendant is released on bail without being subject to any conditions, other than to surrender to the court at a time and place specified in their bail.

Question 32

What is the ‘Attending
appointments with
his solicitor or the
Probation Service’ bail condition?

Answer 32

Requires a defendant to keep in regular touch with
his solicitor to ensure that the case is not delayed
because the defendant has failed to provide their
solicitor with prompt instructions.

Question 33

What is the ‘Surrender of
passport’ bail condition?

(prevents them from absconding)

Answer 33

Requires a defendant to surrender their passport.
Only likely to be appropriate in serious cases where
the defendant is known to have substantial financial
assets or criminal contacts outside the UK.

Question 34

What is electronic monitoring?

What is the threshold?

Answer 34

Electronic monitoring can be imposed to monitor compliance with another bail condition e.g. curfew, exclusion zone.

HIGH THRESHOLD: EM can only be imposed if the court is satisfied that:

*without the electronic monitoring requirements, the person would not be granted bail;

• the necessary arrangements for electronic monitoring are in place.

Question 35

Can the defendant make a further application for bail at any time?

Answer 35

NO.

It has to make a further, full application at the FIRST hearing following the initial refusal of bail.

If the defence advocate doesn’t take this opportunity to make the full bail application at the FIRST hearing - opportunity will be lost and the court may decline to hear a full bail application.

Question 36

What is the procedure of applying for bail?

Answer 36

Please see table in notes saved in the WS2 folder. (attempt to draw a chart).

The first thing that happens, defence solicitor will speak to the prosecution to see whether they will apply to refuse grant of bail.

Question 37

Should the defendant appeal the decision straight away?

Answer 37

No. It is advised that the defendant makes a full bail application at the first hearing before appealing.

Question 38

What is the 5 stage appeal process by the defence (CrimPR, 2 14.8)

Answer 38

The defendant must:

1) Apply to the crown court in writing as soon as practicable after the magistrates courts decision and serve that application on the Crown Court, Magistrates court and prosecution

2) Application must specify the decision that the defendant wishes the Crown Court to make, the reason why bail should not be withheld, any proposed conditions of bail and the application must attach a copy of the certificate of full agreement

3) Appeals will usually be heard within 48 hours after the magistrates court initially refused bail

4) Appeals will be heard by a Crown Court judge in a chambers (not court). This will be a complete rehearing of a bail application, with the judge permitting both the prosecution and defence to make any necessary representation

5) Crown Court judge may either withhold bail, and defendant continue to be remanded in custody OR
Grant bail conditionally or unconditionally.

Question 39

Where can a prosecution appeal the decision of bail? CrimPR r14.9

Answer 39

Can appeal to either the crown court or to the high court.

Question 40

What is the appeal to the crown court procedure for the prosecution?

Answer 40

Made where the prosecution is appealing against a decision of the magistrates court to grant bail.

This appeal must be
- held as soon as practicable
- no later than the second business day after the appeal notice was served

Question 41

What are the main requirements of the prosecution appeal against bail procedure (for both high court and crown court)

Answer 41

Prosecution must give:

• Oral notice must be given by the prosecutor at the end of the hearing during which the
  court granted bail; and before the defendant is released from custody.
• This notice must be confirmed in writing and served on the defendant not more than
  2 hours after telling the court of the decision to appeal.
• The Crown Court must hear the appeal as soon as possible and in any event not later than 2 business days after the appeal notice was served (and this takes place as a re-hearing)

Question 42

What is the appeal to the high court procedure for the prosecution?

Answer 42

Appealing a decision of crown court to grant bail.

This route does not apply where the Crown court granted bail following an appeal from the magistrates court by the defendant.

Question 43

What happens to the defendant whilst the prosecution is appealing the bail decision?

Answer 43

The defendant will be remanded in custody by the magistrates until the appeal is
heard.

Question 44

What does the code for crown prosecutors say about how the appeal procedure should be used?

Answer 44

The Code for Crown Prosecutors provides that this power should be used ‘judiciously
and responsibly’, and so the power to appeal is not to be used merely because the Crown
Prosecutor disagrees with the decision: ‘it should only be used in cases of grave concern.

Question 45

What happens if the defendant fails to ‘abscond’ i.e. fails to surrender to the custody of court?

Answer 45

They will either be

Backed with bail: once the defendant is arrested they will be released by the police and informed to surrender at the next hearing

Not backed with bail: defendant will be arrested and held in custody until their next hearing (or if the court has finished sitting on a Friday, will be presented before a remand court on the saturday morning).

No such courts sit on Sunday.

Question 46

What 2 circumstances is a defendant liable for absconding?

Answer 46

1) where having been granted bail, they fail to surrender without reasonable cause

2) where, having been granted bail, they fail to surrender as soon as reasonably practicable after having had a reasonable cause for failing to surrender initially

Question 47

What will happen when the defendant appears before the court?

Answer 47

A defendant who has been charged by the police and bailed to appear before the
magistrates’ court will be in breach of police bail if they fail to attend court at the appointed
date and time. When that defendant is arrested and brought before the court, whether they
are charged with failing to surrender to custody under ss 6(1) or (2) of the Bail Act 1976 (see
below) is a matter for the CPS.

If, however, the defendant has already made an appearance before the court and been
granted bail by the court, the decision to commence proceedings against them for failing to
surrender will be made by the court rather than the CPS because the defendant will be in
breach of court bail.

Question 48

What if a defendant breaches any of the bail conditions (e.g. fails to comply with curfew, residence, no contact with prosecution witness?

Answer 48

The solicitor will usually have explained to the defendant the importance of the conditions.

A breach of condition is not a criminal offence but is likely to be reviewed by the magistrates who may decide that failure to comply with the conditions requires a remand in custody.

Question 49

What does the court do if the defendant does not have a reasonable excuse for absconding?

Answer 49

General rule: should sentence ‘as soon as practicable’

Sentence them:
1) Sentence them immediately
2) Postpone sentence until the conclusion of the substantive proceedings

OR Punishment

1) Magistrates court: up to 3 months imprisonment + maximum fine of £5000
2)Crown court = up to 12 months imprisonment/an unlimited fine

And any surety deposit will be forfeited.

Question 50

What are the rights of a police officer if there is a breach of a condition of bail?

Answer 50

Section 7(3) of the Bail Act 1976 empowers a police officer to arrest a person who has been
bailed to attend court (either by the police following charge, or by the court at a previous
hearing) if the officer reasonably believes that the person:

(a) is not likely to surrender to bail; or
(b) has broken, or is likely to break, their bail condition

• A defendant who is arrested will be detained in police custody and must then be brought before the magistrates courts within 24 hours.
• If they are not been brought within 24 hours = absolute right to be released

Question 51

What is the 2 staged approach adopted by the Magistrates court when deciding whether a breach of a condition will lead to remanding the defendant in custody or release them on bail?

Answer 51

The two stages approach is

1) Determine the breach
- was there in fact a breach of any bail condition
- consider representation from defendant and use evidence

2) Determine bail
- if the court is satisfied that a breach did occur, the court must decide whether to remand the defendant in custody or on bail. If the court decides to release the defendant on bail, court may maintain the same conditions imposed previously or vary them (or impose more strict conditions)

The magistrates court cannot remand a defendant in custody if there are:
- an adult
- have not yet been convicted in present proceedings
- appears to the court that there is no real prospect of the defendants being issued with a custodial sentence in proceedings.

Question 52

Is a breach of a bail condition a criminal offence?

Answer 52

No. It is not - although you may be held in remaind or conditions varies.

Question 53

Is absconding a criminal offence?

Answer 53

Yes it is.

Question 54

What are the 2 offences can a defendant be charged with for absconding?

Answer 54

The Bail Act 1976 creates two offences with which a defendant who fails to surrender to
custody at the appointed time and date may be charged:

a) If the defendant fails without reasonable cause to surrender to custody, they will be guilty of the offence of absconding, contrary to s 6(1).

b) If the defendant did have a reasonable cause for failing to surrender, they will still be
guilty of an offence under s 6(2) unless they surrendered to custody as soon as it was reasonably practicable for them to do so.

Question 55

What will happen if the defendant appears before the court (not backed by bail)?

Question 56

What must a defendant who is released on bail do once the court specifies a time and place?

Answer 56

Under a duty and they must abscond, i.e. surrender to the court - if they fail to do so they are guilty of the offence of absconding and will issue a warrant for their arrest s7(1) Bail Act 1976.

Question 57

What documents will a crown court judge in a chambers review when deciding the appeal of a bail?

Answer 57

(a) the notice of application;
(b) the ‘certificate of full argument’; and
(c) a record of the defendant’s previous convictions (if applicable).

Question 58

What are the two circumstances which you can appeal a decision on bail?

Answer 58

1) Appeals by the defendant where the bail is refused

2) Appeals by the prosecution where bail is granted.

Question 59

What is a certificate of full agreement?

Answer 59

Merely a document which is issued by magistrates court to show that the court has heard a fully argued bail application. The certificate is necessary if the defendant wishes to appeal against their refusal of bail to the crown court.

Question 60

What is the ‘curfew’ restriction i.e. tagging bail condition?

(aimed at stopping committing of offences on bail)

Answer 60

The court requires a defendant to remain at their place of residence between certain specified hours (for example, between 8 pm and 7 am).

The police
may visit the residence during these hours to check that the defendant is there.

To support conditions of residence and curfew, the
court may order that the defendant be electronically
monitored (commonly referred to as ‘tagging’).

Question 61

What is the ‘Residence’ bail condition

(aimed at stopping Absconding and
committing offences
on bail)

Answer 61

The court requires the defendant to reside at a
specified address. The police will often check that such a condition is being complied with by visiting the address late at night or early in the morning.

Question 62

What is the ‘surety’ bail condition?

(aimed at overcoming absconding i.e. escaping)

Answer 62

A third party that enters into an agreement (“a recognisance of money”) with the court that he will use every reasonable effort to ensure the defendant attends court.

If the defendant fails to attend, the court will declare the immediate and automatic forfeiture of the recognisance, and order the surety to appear before the court to
explain why he should not pay over the sum.

The court will then determine whether some or all of the
surety should be paid.

A court is unlikely to accept as a surety a person who
has a criminal record, who lives a long distance from
the defendant or who has no financial means. As
a matter of professional conduct, a solicitor should
never stand surety for a defendant.

Question 63

Where will the defendant be kept whilst in custody?

Answer 63

• In prison or remand centre
  OR

In the police station (for 3 days) for the purposes of making enquiries in relation to offences other than offence for which the defendant has been charged.

^ E.g. the CPS apply for this remand when a defendant has been arrested and charged for one offence, but the police suspect their involvement in other matters about which they wish to interview them.

They must be brought back to the magistrates as soon as the need to make enquiries has been ceased.

Question 64

Can the time limit be extended?

Answer 64

Yes, the prosecution may apply to the court to extend the custody time limit.

In order for this to be successful, the prosecution needs to show that on the balance of probabilities:

• there is good and sufficient cause to do this
• it has acted with due diligence and expedition