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Criminal Practice > Pre-trial: Bail > Flashcards

Pre-trial: Bail Flashcards

1
Q

What is adjournment?

A

court cannot conclude the case in one hearing

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2
Q

What is remand?

A

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.

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3
Q

where can remand be served?

A

In custody
In the community on bail

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4
Q

Who applies to hagve D remanded into custody?

A

Prosecution

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5
Q

How does the prosecution remand defendant into custody?

A

Present objections to bail

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6
Q

When does the defence apply for bail?

A

Once prosecution objections have been raised

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7
Q

Where is the first decision for bail made?

A

Magistrates court (except for murder)

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8
Q

What is right to bail?

A

The presumption that the defendant is entitled to bail

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9
Q

When does the right to bail not apply?

A
  • Appealing conviction or sentence
  • D being committed for sentence from Magistrates to Crown Court.
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10
Q

What are the grounds for objecting to bail for an indictable offence?

A

‘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

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11
Q

What does substantial grounds mean?

A

Fears of the behaviour happening have substance and merit.

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12
Q

When should bail not be removed for indictable offences even if the grounds apply?

A

No real prospect of D receiving custodial sentence

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13
Q

When will a defendant be remanded for a summary offence?

A

D provided some reason to believe he would
- commit further offences
- fail to surrender
- interfere with witnesses

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14
Q

What are the prerequisites for a defendant to be refused bail for a summary offence?

A
  • breached bail condition
  • previous failure to surrender conviction
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15
Q

When will a defendant need not be granted bail?

A

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

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16
Q

What are the conditions for not allowing bail for murder (unless exceptional circumstances?

A

D has pre-conviction for
i. Murder
ii. Attempted murder
iii. Rape
iv. Serious sexual offence

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17
Q

When will bail be allowed for murder?

A

no significant risk of D causing an offence likely to cause physical or mental injury

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18
Q

What are the rules for bail where D is on trial for Attempted murder, rape or serious sexual offence?

A

D has pre-con for
i. Murder
ii. Attempted murder
iii. Rape
iv. Serious sexual offence
= no bail unless exceptional circumstances to justify

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19
Q

What are the rules for bail where D is on trial for an offence carrying life?

A

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

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20
Q

What are the rules for bail where D is on trial for an offence suggesting injury towards a family member?

A

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

21
Q

Who is an associated person for the purpose of denying bail for offences suggesting injury against family?

A

spouse, partner, family member

22
Q

What is the limitation on denying bail for offences suggesting injury against family?

A

For non-imprisonable offences, only available if arrested for breach of bail

23
Q

What are the rules for bail where D is on trial for an abuse of drugs offence?

A

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

24
Q

What are the rules for bail where D was on bail at time of offence for an indictable offence?

A

Need not grant bail

25
Q

What are the rules for bail where D was on bail at time of offence for an summary imprisonable offence?

A

need not grant if substantial grounds for believing D will commit further offences

26
Q

What are the rules for bail where D absconds while on bail for an indictable offence?

A

Need not grant unless prior to conviction and no realistic prospects of receiving custodial sentence

27
Q

What are the factors when considering objections?

A

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

28
Q

What are common conditions of bail

A
  • 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
29
Q

What is the limit for bail conditions?

A

None

30
Q

Who can apply to vary a bail condition?

A

Defence or prosecution

31
Q

Is breach of bail conditions an offence?

A

No but can be arrested

32
Q

When can someone be arrested for bail conditions that they have not breached?

A

About to be in breach

33
Q

Is failure to surrender an offence?

A

Yes

34
Q

What happens if a defendant is refused bail by the police?

A

Appears before next available magistrates court

35
Q

What happens if a defendant’s application for bail is unsuccessful?

A
  1. Case returns to court week later where bail can be raised a second time without restriction/qualification
  2. Certificate of full argument
36
Q

When are bail appeals heard?

A

One business day after appeal notice served

37
Q

If bail has already been appealed once, how can it be appealed again?

A

Change in circumstances

38
Q

What is the consequence if you appeal bail to the crown court after only one magistrates application?

A

Forfeit second magistrates application

39
Q

What is the process for prosecution to appeal bail?

A

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

40
Q

When is an appeal on bail by prosecution heard?

A

within 48 hours excluding weekends

41
Q

Who is a prosecution appeal on bail heard by?

A

Crown court
High court if from crown court

42
Q

What is the custody time limit for magistrates court?

A

56 days

43
Q

What is the custody time limit for crown court?

A

182 days less any days spent in custody prior to being sent to crown court

44
Q

When does the trial start in the magistrates court for the purposes of the custody time limit?

A

when court begins hearing prosecution evidence

45
Q

When does the trial start in the crown court for the purposes of the custody time limit?

A

when jury sworn in

46
Q

What happens if a custody time limit expires?

A

defendant released unless prosecution applies to extend and can show:
- acted with all due diligence and expedition
- good sufficient cause

47
Q

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?

A

No more than 8 clear days

48
Q

When must a defendant be brought back after their second appearance?

A

Every 28 days or fewer

Criminal Practice (20 decks)

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