Pre-trial: Bail Flashcards
What is adjournment?
court cannot conclude the case in one hearing
What is remand?
When D is sent away and told to come back another day. D is obliged to come back to court to continue with the case.
where can remand be served?
In custody
In the community on bail
Who applies to hagve D remanded into custody?
Prosecution
How does the prosecution remand defendant into custody?
Present objections to bail
When does the defence apply for bail?
Once prosecution objections have been raised
Where is the first decision for bail made?
Magistrates court (except for murder)
What is right to bail?
The presumption that the defendant is entitled to bail
When does the right to bail not apply?
- Appealing conviction or sentence
- D being committed for sentence from Magistrates to Crown Court.
What are the grounds for objecting to bail for an indictable offence?
‘substantial grounds’ for believing D would either:
a) fail to attend a subsequent hearing;
b) commit further offences on bail; and/or
c) interfere with witnesses or obstruct course of justice
What does substantial grounds mean?
Fears of the behaviour happening have substance and merit.
When should bail not be removed for indictable offences even if the grounds apply?
No real prospect of D receiving custodial sentence
When will a defendant be remanded for a summary offence?
D provided some reason to believe he would
- commit further offences
- fail to surrender
- interfere with witnesses
What are the prerequisites for a defendant to be refused bail for a summary offence?
- breached bail condition
- previous failure to surrender conviction
When will a defendant need not be granted bail?
a) defendant’s own protection;
b) insufficient information to deal with bail so remands for short period to produce sufficient evidence; and/or
c) already serving sentence in custody
What are the conditions for not allowing bail for murder (unless exceptional circumstances?
D has pre-conviction for
i. Murder
ii. Attempted murder
iii. Rape
iv. Serious sexual offence
When will bail be allowed for murder?
no significant risk of D causing an offence likely to cause physical or mental injury
What are the rules for bail where D is on trial for Attempted murder, rape or serious sexual offence?
D has pre-con for
i. Murder
ii. Attempted murder
iii. Rape
iv. Serious sexual offence
= no bail unless exceptional circumstances to justify
What are the rules for bail where D is on trial for an offence carrying life?
If D was either:
i. Already on bail; and/or
ii. Fails to attend having been on bail
= No bail unless no significant risk of D committing further offences or failing to attend
What are the rules for bail where D is on trial for an offence suggesting injury towards a family member?
Need not grant bail if-
substantial grounds to believe D would commit offence on bail by engaging in conduct that would/likely cause physical/mental injury to an associated person
Who is an associated person for the purpose of denying bail for offences suggesting injury against family?
spouse, partner, family member
What is the limitation on denying bail for offences suggesting injury against family?
For non-imprisonable offences, only available if arrested for breach of bail
What are the rules for bail where D is on trial for an abuse of drugs offence?
i. test shows D has Class A drugs in body; and
ii. the offence relates to a Class A or was caused/ motivated by D taking Class A drugs
No bail unless no significant risk of D committing an offence on bail
What are the rules for bail where D was on bail at time of offence for an indictable offence?
Need not grant bail
What are the rules for bail where D was on bail at time of offence for an summary imprisonable offence?
need not grant if substantial grounds for believing D will commit further offences
What are the rules for bail where D absconds while on bail for an indictable offence?
Need not grant unless prior to conviction and no realistic prospects of receiving custodial sentence
What are the factors when considering objections?
a) the nature and seriousness of the offence and the likely sentence;
b) D’s character, D’s antecedents, associations and community ties;
c) the defendant’s bail record in the past
d) the strength of the evidence
What are common conditions of bail
- Residence at a given address
- Curfew
- Reporting to a local police station at given times
- Surety
- Security
- Restriction on where a defendant may go during bail
- Restriction on who the defendant might have contact with during bail
- Electronic monitoring (tagging)
- Bail hostels
- Surrender of passport
What is the limit for bail conditions?
None
Who can apply to vary a bail condition?
Defence or prosecution
Is breach of bail conditions an offence?
No but can be arrested
When can someone be arrested for bail conditions that they have not breached?
About to be in breach
Is failure to surrender an offence?
Yes
What happens if a defendant is refused bail by the police?
Appears before next available magistrates court
What happens if a defendant’s application for bail is unsuccessful?
- Case returns to court week later where bail can be raised a second time without restriction/qualification
- Certificate of full argument
When are bail appeals heard?
One business day after appeal notice served
If bail has already been appealed once, how can it be appealed again?
Change in circumstances
What is the consequence if you appeal bail to the crown court after only one magistrates application?
Forfeit second magistrates application
What is the process for prosecution to appeal bail?
a) Prosecution opposed bail originally
b) Offence punishable by imprisonment
c) Indicates orally at hearing when granted they will appeal (D held in custody)
d) Intention confirmed in writing, served on court and defence within 2 hours
When is an appeal on bail by prosecution heard?
within 48 hours excluding weekends
Who is a prosecution appeal on bail heard by?
Crown court
High court if from crown court
What is the custody time limit for magistrates court?
56 days
What is the custody time limit for crown court?
182 days less any days spent in custody prior to being sent to crown court
When does the trial start in the magistrates court for the purposes of the custody time limit?
when court begins hearing prosecution evidence
When does the trial start in the crown court for the purposes of the custody time limit?
when jury sworn in
What happens if a custody time limit expires?
defendant released unless prosecution applies to extend and can show:
- acted with all due diligence and expedition
- good sufficient cause
If a defendant is remanded into custody at first hearing and trial will take place in the magistrates court, how long must the remand be?
No more than 8 clear days
When must a defendant be brought back after their second appearance?
Every 28 days or fewer
