Criminal Procedure-Bail Or Custody & Funding and Allocation Flashcards
What is bail?
Everyone charged with an offence is deemed to be “on remand”:
- Remand in Custody
- Remand on conditional bail-some restrictions on individual but allowed to be released
- Reman on unconditional bail-released and have to turn up to court to answer their bail (release subject only to an obligation to return)
When will bail be completed?
- ’Pre-charge bail’ (police bail) granted by a CO following arrest; Custody time clock is paused
- ’Post-charge bail’ (bail to court) granted by a CO; may be subject to conditions, however once convicted, Right to bail is lost, only allow bail in some circumstances if the situation is right
- ’Court bail’ granted by a court; may be subject to conditions
- Bail also arises as an issue after conviction but before sentence or pending an appeal
Why does the question of bail arise? (Statutes)
- Right to bail in Article 5 ECHR: “everyone arrested and detained for an offence shall be brought promptly before a judge and shall be entitled to trial within a reasonable time and to release pending trial…”
- Right to bail in the Bail Act s.4: Prima facile Right to Bail; “a person to whom this section applies shall be granted bail except as provided in Schedule 1 to this Act”
How long can a person be remanded for?
- Remand on bail-no limit but subject to requirement for trial in a reasonable time
- Remand in Custody-initial limit for Magistrates =8 days; thereafter 28 days (s.128(A) MCA 1980)
- If D consents and is represented he can be remanded in Custody for up to 3 consecutive hearings in his absence (if likely that won’t get bail)
What are the Schedule 1 grounds for refusing bail for imprisonable offences?
•Para 2-Substantial grounds for believing:
-D would FTS (take into account family ties, work, criminal connections, pre cons)
-D would offend on bail-public interest, Substantial grounds for believing they would do this
-D would interfere with witnesses/course of justice-pre cons of witness intimidation, means to destroy evidence
•Para 2A-D suspected of either way/indictable offence and already on bail
•Para 3-D’s own protection
•Para 4- D already on a custodial sentence (if released on license)
•Para 5- Lack if time to obtain information
•Para 6- D has already FTS on this offence
What is the exception to the right of bail (imprisonable offences) refusal
•Schedule 1, Part 1, Para 1A (LASPO 2012): if it appears to the court that there is no real prospect that D will be sentenced to a custodial sentence then the court cannot refuse him bail on ground of:
-FTS, offend on bail, interfere with witnesses, already on bail or already FTS on this offence
What factors must the court consider when deciding whether to grant bail?
•Para 9:
- nature and seriousness of offence and probable sentence (aggravating factors?) more serious/longer the sentence, less likely to turn up
- D’s character, antecedents, associations and community ties-if pre cons of FTS, similar pre cons, could continue if released but more ties less likely to run away
- D’s previous bail record
- strength of evidence
- any other relevant matter-do they know the witnesses/live near them, gang?
What is the exception to right of bail?
•S.25 Criminal Justice and Public Order Act 1994:
If D is charged with murder, manslaughter or rape (or attempts) AND has been convicted of any of these offences previously s/he cannot be granted bail unless there are exceptional circumstances-no presumption in favour to bail, only given if medical condition means they require hospital treatment
•If charged with murder but with no pre cons then can only be granted bail by a judge of the Crown Court - s.115 Coroners and Justice Act 2009
When/why are conditions imposed on conditional bail and who can impose them? E.g.?
•if necessary to prevent the common grounds of FTS/offend whilst on bail/interfere with witnesses
•CO post-charge or Court can impose them
•Common conditions:
-Risk=FTS: security, residence, reporting to police, surrender passport, provide telephone number
-Risk=offend: curfew, tagging, bail hostel, exclusion zone
-Risk=interfere: not to contact prosecution witnesses, exclusion zone
What are consequences of breach of conditions in conditional bail?
- FTS is an offence under Bail Act 1976, s.6-Court may issue a warrant for arrest (attracts a fine or imprisonment)
- Breach if other conditions is not an offence but
- D can be arrested on reasonable belief that he is/has likely to breach a bail condition
- If Court satisfies D has/night FTS or has/night breach a condition it can remand in Custody or impose more onerous conditions
What is the time limit of getting the accused to court for different offences?
- Summary only-charge/info must be laid within 6 months of date of commission of offence (s.126 Magistrates Courts Act 1980)
- Either way/indictable only-no time limit subject to the Full Code test, I.e. enough evidence and public interest
What is dealt with in the first appearance at the Magistrates court?
- Funding application (if relevant)
- Bail application
- Plea (usually enter a plea but not in indictable offences-if straight forward and plead guilty then could be given a sentence immediately, but some might want more info)
- Allocation determination (for either way)
- Adjournment and setting date for next hearing
- Disclosure issues
- Sentence if a guilty plea is entered and case is straightforward
What is Public Funding?
- Administered by the Legal Aid Agency (LAA)
- Provided for by Article 6(3)) ECHR which states that D’s who do not have sufficient means to pay for legal assistance should receive this free from charge when in the interests of justice
What are the 3 types of public funding in criminal cases?
1) Police Station Advice and Assistance-no test, free access to advice to all suspects. If don’t have a solicitor a duty solicitor will be used
2) Advice and Assistance (pre charge)-Funding for non-police station work conducted before the suspect is charged. This is means tested and is paid at a fixed hourly rate.
3) Representation Order-covers all work post charge (includes ALL work done for court). Once charged if they want their defence paid for they need a representation order from the court-it is both means and merits tested
What is the merits test (Representation Order)?
•If it is in the interested of justice to have their representation paid for (s.17 LASPO Act 2012)
- loss of liberty
- loss of livelihood (what will they actually lose, not speculative)
- serious damage to reputation (future life, jobs)
- substantial question of law
- inability to understand court proceedings
- tracing and interviewing witnesses
- expert cross examination of prosecution witnesses
- interests of someone else (in sexual offences
