Pre-Trial Criminal Litigation Flashcards
power to adjourn
At any stage before the case is sent to the Crown Court for trial or before (or during) a summary trial, a magistrates’ court may adjourn the proceedings
challenging adjournments
It is possible to challenge the grant or refusal of an adjournment by way of judicial review. However, the Divisional Court will be ‘particularly slow’ to interfere with a decision to refuse an adjournment, given the discretionary nature of that decision.
that the grant or refusal of an adjournment ‘is a paradigm example of a discretionary case management decision where an appeal ought only to succeed on well-recognised but limited grounds (for example, error of principle, error of law or where the decision can properly be characterised as plainly wrong)’.
Magistrates may adjourn the proceedings at any time, and on doing so on any occasion when the accused is present may remand the accused, and shall remand him if—
(a) on the occasion on which he first appeared, or was brought, before the court to answer to the information he was in custody or, having been released on bail, surrendered to the custody of the court; or
(b) he has been remanded at any time in the course of proceedings on the information;
and where the court remands the accused, the time fixed for the resumption of the proceedings shall be that at which he is required to appear or be brought before the court in pursuance of the remand.
what does remand mean?
that the accused is to return to court at a certain date.
how is someone remanded?
this can be done wither on Bail or Remanded into Custody
remanding the accused on adjournments
where the case is held and paused and the defendant is either kept in custody or released on bail until the date they are told to return
Where a case is simply adjourned, there is no need to fix the date for the next hearing at the time of adjourning, whereas if there is a remand the adjournment date must be fixed forthwith and is the date to which the accused is remanded. An accused who is not remanded and who then fails to appear on the date to which the case is adjourned commits no offence, but it may be possible either for an arrest warrant to be issued or for the proceedings to be conducted in the absence of the accused. An accused who has been remanded on bail and who then fails without reasonable cause to surrender to custody commits an offence under the Bail Act.
further remands
A person who is brought before the court after an earlier remand may be remanded again. Thus, there may be several remand hearings before the case is sent to the Crown Court or the commencement of summary trial. The only limitation on the number of remands is the general discretion of magistrates to refuse an adjournment if it would be against the interests of justice.
remand on bail
the accused may be remanded for a period greater than eight clear days if the remand is on bail and both the accused and the prosecution agree to a longer period of remand.
time limits on remand in custody: Between first appearance and committal
the maximum period for which an accused charged with an indictable offence may be held in the custody of the magistrates’ court between first appearance and committal proceedings is 70 days.
Time Limits on remand in custody: Between first appearance and summary trial
If the offence is triable either way and the court determines to try the case summarily, the maximum period in custody between first appearance and the court beginning to hear evidence for the prosecution is again 70 days, unless the decision for summary trial is taken within 56 days, in which case the limit is reduced to 56 days. In the case of a summary offence, the maximum period is 56 days
Time Limits on Remand in Custody: Between committal and trial on indictment
the maximum period for which an accused committed for trial to the Crown Court may be held in custody between ‘committal’ and the start of trial is 112 days.
Time Limits on Remand in Custody: Multiple Committals
If a single indictment is preferred containing counts in respect of which the accused was committed for trial on two or more different occasions, the 112-day limit applies separately in relation to each offence
Time Limits on Remand in Custody: Section 51 Sending
Where the accused has been sent for trial under the CDA 1998, s. 51, the maximum period is 182 days between the date on which the accused is sent to the Crown Court and the start of the trial. From this maximum must be deducted any period during which the accused was held in custody by the magistrates
Time Limits on Remand in Custody: Retrial Directed by the CoA
Where an indictment is preferred by direction of the Court of Appeal, following the ordering of a retrial, the 112-day limit applies from that preferment
Time Limits on Remand in Custody: Voluntary Bill
Where proceedings are by way of a voluntary bill of indictment the 112-day period runs from the date of preferment of the bill
what happens if the custody time limit expires?
Where the time limit expires before completion of the stage, then the accused is released on bail
The BA is amended to the following criteria:
- Automatic entitlement to bail
- More likely a surety or security is needed to be paid
- Officers cannot arrest the accused for the likeliness of failing to surrender without a warrant from Mags
The ordinary conditions may still be imposed, i.e curfew and tag
how can conditions be imposed when an accused is bailed automatically due to the expiry of a custody time limit?
Prosecution must give written notice of the bail conditions and serve it to the court and the defence, the defence must respond with either:
- A written notice of a wish to be represented at a hearing of the application
- Written notice of the accused not objecting to the conditions
- Written statement of the reasons for objecting.
Prosecution must bring the accused to court within the 2 days preceding the expiry of the custody time limit.
does the expiry of the custody time limit negative effect the proceedings?
No. Expiry of the custody has not effect on the proceedings, the committal is still valid.
consequences of absconding
- if absconded whilst during the custody time limit, then the limit is removed
- if an accused has been released in consequence of the expiry of a custody time-limit and then fails to attend court in answer to bail, the earlier expiry of the limit is disregarded and the question, once the accused has been arrested, of whether to bail again or remand in custody is therefore entirely in the discretion of the court
criteria for extending the custody time limit
Court must be satisfied that the extension is a Good and sufficient cause; and the Crown had acted with due diligence;
Everyone arrested and detained have the right for their trial to be heard in a reasonable amount time
With that provision in mind, the overriding purposes of the statutory provisions were said to be:
(a) to ensure that the periods for which unconvicted defendants are held in custody are as short as is reasonably and practically possible;
(b) to oblige the prosecution to prepare cases for trial with due diligence and expedition; and
(c) to give the court power to control any extension of the maximum period for which any defendant may be held awaiting trial.
main points of practice guidance when it comes to extensions of custody time limits
(1)It is for the prosecution to satisfy the court on the balance of probabilities that the statutory conditions are met.
(2)The necessary standard is that of a competent prosecutor conscious of his duty to bring the case to trial as quickly as is reasonably and fairly possible.
(3)In judging whether this standard was met, the court should consider the nature and complexity of the case, the preparation necessary, the conduct of the defence, the extent to which the prosecutor was dependent on others outside his control and other relevant factors.
(4)What amounts to good and sufficient cause is a matter for the court on the facts of the case.
(5)Staff shortages and sickness will be inadequate reasons for extension. The unavailability of a judge or a courtroom may be good and sufficient cause, but such cases should be approached with ‘great caution’.
(6)The court should state the reasons for its decision.
(7)Once the court had heard full argument and decided, the Divisional Court would be most reluctant to disturb its decision, and would do so only on the familiar grounds which support an application for judicial review.
who is it to apply for the defendant to be remanded into custody?
the prosecution
factors to consider when determining a “good and sufficient cause”
- The seriousness of the offence – may require linger for the police to gather the evidence
- Public protection – it is not a stand-alone ground but can be taken into consideration
- Factors relevant to the application of bail
- Covid 19 pandemic
- No available Judge or courtroom – where there are listing difficulties. The court must take into consideration what has been done in order to deal with the listing difficulties and how they have been attempted to be counteracted. The availability of counsel can also provide an additional consideration to this (this is heavily on the circumstances of the defendant and their professional relationship with counsel, i.e. trusting a specific barrister).
- The convenience of the defence and witnesses. There papers may have been given to the defence at a late stage. It enables the defence to consider the papers fully and correctly.
- Where witnesses are ill
for a court to extend a custody period, does the crown have to act with both Due Diligence and provide a Sufficiently good reason?
No. The court may extend the custody period even if one of the limbs are satisfied. it is the courts discretion to do so.
factors to consider when determine due diligence
- the stage of proceedings which the time limits relate to
- who was responsible for the delay (if third party, prosecution may still be responsible as they have to provide info to third party for them to act diligently, i.e. providing them the date of trial etc.)
what is bail?
D released from custody during the adjournment of the case and told to return to court on a specific date
when may the Crown Court grant bail?
(a) who has been sent in custody for trial in the Crown Court;
(b) who has been given a custodial sentence following conviction in the magistrates’ court (whether by guilty plea or a finding of guilty after trial) and who is appealing to the Crown Court against conviction and/or sentence;
(c) who is in the custody of the Crown Court pending disposal of the case (so whenever the Crown Court adjourns a trial or adjourns between conviction and sentence, it has a discretion to grant the accused bail for the period of the adjournment);
(d) whose case has been decided by the Crown Court but who has applied to the court to state a case for the Divisional Court’s opinion or is seeking judicial review of the decision;
(e) to whom the Crown Court has granted a certificate that the case is fit for appeal to the Court of Appeal, whether against conviction or against sentence; and
(f) who has been remanded in custody by a magistrates’ court on adjourning a case, provided the magistrates’ court has granted a certificate that, before refusing bail, it heard full argument.
when may the Magistrates Court grant Bail?
- when the accused is awaiting trial
- when the accused has been committed to the Crown Court for Trial
- when the court is awaiting reports after summary conviction
- committal to the crown court for sentence
- Where a magistrates’ court has summarily convicted an accused and passed a custodial sentence, it may grant bail pending the determination of an appeal to the Crown Court or to the Divisional Court by way of case stated.
which court can only grant Bail for a charge of murder
Crown Court
when must the crown court determine the decision for bail in a case where the accused is charged with murder?
After the accused is committed to the crown court in custody
Must be done as soon as reasonably practicable.
In any event, within at least 48 hours after being committed to the Crown Court, excluding weekends and the time starts on the beginning of the day after the Magistrates committal
what happens regarding Bail if someone pleads guilty at the Plea Before Venue Hearing?
then Bail may still be continued, even if a custodial sentence is highly likely. the Court can refuse bail where they are of the mind that there are good reasons for remanding the accused into custody.
i.e. the presumption for bail still remains
principles of bail
Bail is a rebuttable presumption that the accused is entitled to Bail, i.e. it is for the prosecution to persuade the court that Bail should not be granted.
the persons who benefit from this presumption are anyone:
(a) who appears before the Crown Court or a magistrates’ court in the course of or in connection with proceedings for an offence, or applies to a court for bail (or for a variation of the conditions of bail) in connection with those proceedings;
(b) who has been convicted of an offence and whose case is adjourned for reports before sentencing; and
(c) who has been brought before the court under the SA 2020, sch. 10, for alleged breach of a requirement of a community order.
the presumption of bail does not apply to who?
(a) those appealing their conviction or sentence; or
(b) to defendants being committed for sentence from the Magistrates’ Court to the Crown Court.
in Principle, what happens when the presumption of bai does not apply to specified persons?
the burden is reversed, where it is for the defence (the one applying for bail) has to apply and prove that the individual is entitled to Bail.
No Bail for Homicide or Rape if Previous Conviction
the court may not grant bail if the accused is charged with (or been convicted of) murder, attempted murder, manslaughter, rape or attempted rape, if the accused has been convicted of any of these offences in the past (or culpable homicide)
court may grant bail if there are exceptional circumstances to justify granting bail.
conviction is a wide term to include: NGRI, unfit to plead, conviction was in the EU.
Bail for murder
the court will not grant bail for an accused charged with murder. unless, the defence can persuade the court that there is no significant risk that the accused will cause serious physical or mental or psychological to another person
again, the presumption of bail is reversed.
what are the three core grounds for refusing bail for an indictable offence?
(a) fail to attend a subsequent hearing (failure to surrender to custody);
(b) commit further offences on bail; and/or
(c) interfere with witnesses, or otherwise obstruct the course of justice eg witness intimidation or destruction of evidence.
what is the standard of proof for the grounds of refusing bail?
“substantial grounds for believing” that if granted bail, the defendant will behave in a way that the ground specifies - not a high test.
It is not for the court to conclude that the defendant would behave in the way specified in the ground, or even that D’s behaviour would be more likely than not to include the behaviour in the ground. It is not enough for the judge simply to have a subjective perception of one or more of these three risks.
It is only necessary to show that the fears of the behaviour happening have substance and merit.
what is the process of a court deciding bail?
This enquiry is a factual one, and is not a trial per se, and so there are no formal rules of evidence in determining if the ground is made out. Representations will be made by both the prosecution and the defence but generally neither party needs to call witnesses or produce documentary evidence. Witnesses can be called (such as a police officer or the person proposed as a surety although it’s rare) and hearsay evidence is permitted (i.e. statements made out of court presented in evidence as proof of its contents). The magistrates have an inquisitorial role in this process and may ask questions of either party or insist that sureties are called to give evidence of their means and relationship with the defendant.
The order in which it goes, it is presumed that the accused is entitled to bail, the prosecution goes first in submissions to refuse bail. Defence then have the opportunity to rebut the prosecutions arguments and puts forth their own case to keep bail. Prosecution have the chance to resubmit responses to the defence counsels arguments.
Real Prospect of Custody - Bail
this is another ground that bail shovel not be refused where there is no real prospect of the accused receiving a custodial sentence.
logic: why send someone to prison for them to not to get sent to prison?
on the other hand, the mere fact that a custodial sentence is inevitable, this does not give grounds to refuse bail
when considering the three main grounds to refuse bail, what factors should the court consider?
(a)the nature and seriousness of the offence and the probable method of dealing with the offender for it;
(b)the character, antecedents, associations and community ties of the accused;
(c)the accused’s ‘record’ for having answered bail in the past;
(d)the strength of the evidence against the accused; and
(e)if the court is satisfied that there are substantial grounds for believing that the accused would commit an offence while on bail, the risk that the accused may engage in conduct likely to cause physical or mental injury to anyone else.
Bail Factor - Nature and seriousness of the offence
- Nature and seriousness of the offence is normally graded in accordance with the sentencing guidelines of the likely sentence.
- The likely penalty to be given. Although this is a factor and not a ground for refusing bail
- Presumption of bail is still given when the accused is to be sentenced at a later date and a pre-sentence report is being prepared.
- The mere fact that a custodial sentence is inevitable, this does not give grounds to refuse bail
Bail Factor - Character, Antecedents, associations and community ties
- Character and antecedents: this refers to previous convictions. Failing to surrender is especially relevant here
- Associations and community ties: this applied to the criminal background D is exposed to and belongs to when they are at home. This factor also considers the employment of D, whether they have a family and dependants etc. does D have a partner? Mortgage? All family and practical factors around D’s everyday life
Bail Factor - Bail Record
- the question of has the defendant absconded in the past or kept to they bail conditions?
Bail Factor - Strength of Prosecution Case
court may be of the mind that they rather un the risk of D absconding than the custody time limit being overrun by prosecution delaying the gathering of evidence.
Bail Factor - Risk of injury to another person
Where D has been violent in the past
Where a prosecution witness has already been intimidated
other grounds withholding bail
- Domestic violence, risk to an associated person: can include anything from an intimate relationship, to family relationship to tenant/lodger.
- Accused already on bail: when they were on bail when they committed the offence
- Own protection – anger in the community back where the offence took place. Can be for the welfare of the child if the accused is below 18 years old
- Accused already in custody
- Insufficient time
- Absconded in current proceedings
- Bail in cases involving the abuse of drugs
Bail in cases involving the abuse of drugs
An accused aged 18 or over may not be granted bail, unless the court is of the opinion that there is no significant risk of the accused committing an offence while on bail, where the three conditions set out :
(1)there is drug test evidence that there is a specified Class A drug in the person’s body;
(2)either the accused is charged with an offence under the Misuse of Drugs Act 1971, s. 5(2) or (3), and the offence relates to a specified Class A drug, or the court is satisfied that there are substantial grounds for believing that the misuse of a specified Class A drug caused or contributed to the offence with which the accused is charged or that offence was motivated wholly or partly by intended misuse of a specified Class A drug; and
(3)the person does not agree to undergo an assessment (carried out by a suitably qualified person) of dependency upon or a propensity to misuse any specified Class A drugs, or has undergone such an assessment but does not agree to participate in any relevant follow-up which has been offered.
then presumption to bail is reversed again.
Bail for Imprisonable Summary offences
there are exceptions to the presumption in favour of bail which are as follows:
(a)where the accused has previously been granted bail and has failed to surrender to custody in those proceedings, and the court believes, in view of that failure, that the accused would, if released on bail, fail to surrender to custody;
(b)where the accused was on bail on the date of the current alleged offence and the court is satisfied that there are substantial grounds for believing that, if released on bail, the accused would commit an offence while on bail;
(c)where the court is satisfied that there are substantial grounds for believing that, if released on bail, the accused would commit an offence while on bail by engaging in conduct that would, or would be likely to, cause physical or mental injury to an associated person or cause such a person to fear physical or mental injury, i.e. domestic violence;
(d)where the court is satisfied that the accused should be kept in custody for the accused’s own protection (or welfare, if a child or young person);
(e)where the accused is already serving a custodial sentence;
(f)where the accused has been arrested under the BA 1976, s. 7, and the court is satisfied that there are substantial grounds for believing that, if released on bail, the accused would fail to surrender to custody, commit an offence while on bail or interfere with witnesses or otherwise obstruct the course of justice (whether in relation to the accused or any other person);
(g)where the court is satisfied that it has not been practicable to obtain sufficient information for the purpose of taking the decision on whether to grant bail for want of time since the institution of the proceedings; and
(h) Bail of Cases involving the abuse of drugs
after the three main grounds for refusing bail, what are the next three?
a) a remand in custody would be for the defendant’s own protection;
b) the court has insufficient information to deal with the issue of bail, and so remands in custody for a (short) period for the production of sufficient evidence; and/or
c) the defendant is already serving a sentence in custody.
what are the specials grounds for refusing bail?
a) serious cases with high penalties; and
b) cases of a particular nature that affect the assessment of the risk posed by a defendant on bail. (Particularly with Domestic Violence cases)
purpose of grounds and factors for refusing bail
the grounds are to base the refusal to bail, the factors are there to assist in proving the grounds.
i.e. a refusal to bail cannot be based on a factor, a factor has to be used to show a ground which may substantiate a refusal for bail.
bail for non-imprisonable offences
The grounds for withholding bail in such cases are as follows:
(a)where the accused is under the age of 18 or has been convicted of an offence in those proceedings and (in either case), having been previously granted bail in criminal proceedings, has failed to surrender to custody and the court believes, in view of that failure, that the accused would fail to surrender to custody;
(b)where the court is satisfied that the accused should be kept in custody for his or her own protection (or welfare, if a child or young person);
(c)where the accused is already serving a custodial sentence;
(d)where the accused is under the age of 18 or has been convicted of an offence in those proceedings, and (in either case) has been arrested under the BA 1976, s. 7, and the court is satisfied that there are substantial grounds to believe that the accused would fail to surrender to custody, commit an offence on bail, or interfere with witnesses or otherwise obstruct the course of justice;
(e)where the accused has been arrested under s. 7 and the court is satisfied that there are substantial grounds for believing that, if released on bail, the accused would commit an offence while on bail by engaging in conduct that would, or would be likely to, cause physical or mental injury to an associated person (as defined by the Family Law Act 1996, s. 62, see D7.25), or to cause such a person to fear such injury, i.e. domestic violence (para. 6).
unconditional bail
only has one condition which is surrender to custody. Surrender to custody is the accused surrendering to the court, basically attending court when they need to, when the court requires them to
what does not apply for non-imprisonable offences
It should be noted that the grounds of ‘risk of absconding etc.’ and ‘insufficient time’ for refusing bail to someone charged with imprisonable offences do not apply where the offences are non-imprisonable.
purpose of bail conditions
- Prevent accused offending again
- Forces accused to surrender to custody
- Keep accused away from witnesses and factors which are pertinent to the case
- To get the accused to help preparing reports etc for their sentence and trial
- For accused to have meetings with legal rep
imposing bail conditions requirements
- Conditions are imposed if the court sees it necessary to do so
- Enough if it is perceived that a ‘real risk’ the accused will do the above
- Prosecutors are ones to ask the court to impose conditions and provide a basis as to why the condition is necessary
bail conditions can include —
- Attending police station 2-3 times a week
- Electronic tag
- Curfew
- Surety
- Security
- Accused not to contact or go near a specific address
- Accused to reside at specific address
- Surrender passport
- Notify police of change in residence
- Conditions involving residence, passport and curfew is to stop accused from absconding
- Conditions to prevent accused from going to specific place and buildings and the curfew is to stop accused from reoffending
- Conditions concerning prevention from specific buildings /areas and individual sis to prevent accused from interfering with witnesses and the case
common bail conditions —
(a)a condition of residence, often expressed as a condition that the accused is to live and sleep at a specified address;
(b)a condition that the accused is to notify any changes of address to the police;
(c)a condition of reporting (whether daily, weekly or at other intervals) to a local police station;
(d)a curfew (i.e. the accused must be at a specified address between certain hours);
(e)a condition that the accused is not to enter a certain area or building or go within a specified distance of a certain address;
(f)a condition that the accused is not to contact (whether directly or indirectly) the victim of the alleged offence and/or any other probable prosecution witness; and
(g)a condition that the accused’s passport must be surrendered to the police (sometimes with an additional restriction to prevent the accused from applying for travel documents).
an electronic minoring condition will commonly be applied alongside a…
…curfew
Sureties are only for…
…securing the offender to surrender to custody. It is not to prevent them from reoffending
what is a security?
Security is a valuable asset given by the accused for them to prevent them from absconding. This can eb provided by a third party. The valuable asset could be something like a car, etc.
varying bail conditions
Prosecution or defence can apply to have the conditions varied if need be. This has to be done by the court who granted the bail in the first place with the said conditions which are to be varied.
D has to be present at bail hearings if they are to be varied etc. this can be done via person or video link. If D is in custody they need not be present. Both counsels make submissions which the court provides reasoning for the decisions
breaching bail conditions
Anyone who breaches bail conditions is able to be arrested under section 7(3) BA 1976. This is not something you can charge someone, it is only an arrest power
in a second bail application, can the previous arguments be reused?
Yes. in Second bail applications, the arguments can be repeated. It’s basically a second opinion and a second bite of the cherry.
what is a surety?
the offer of money made by someone with influence over the defendant to secure the defendant’s return to court. A surety is usually required where there is a risk of the defendant absconding. The surety will agree to forfeit a sum of money if the defendant absconds. The defendant cannot stand as a surety in D’s own case. Sureties do not deposit the sum of money, referred to as a recognisance, at the time bail is granted. They merely promise to pay that sum of money if the defendant fails to surrender to the court and the court then orders all or part of the recognisance to be forfeited.
Bail hostels
Residence at a bail hostel and a further condition that the defendant complies with the rules of the bail hostel can be used to try to prevent the defendant absconding, and/or interfering with witnesses and/or committing further offences on bail. A bail hostel may be used if the defendant does not have a fixed address. It provides a residence and a curfew while the defendant is on bail. The bail hostel will also place upon the resident its own rules with which D must comply e.g. not to bring alcohol or controlled drugs onto the premises. If the rules are breached, the resident would have to leave and would consequently be in breach of the court imposed bail condition of residence.
Surrender of Passport
In some circumstances it may be necessary for the court to impose a condition that the defendant surrenders D’s passport to prevent the risk of D absconding.
power under section 7 Bail Act
The Bail Act s.7 provides that there is a power of arrest allowing officers to arrest those either who are in breach, or who are about to be so.
the accused may be arrest ed y an officer without a warrant for any of the following:
(a) the officer has reasonable grounds for believing that the accused is not likely to surrender to custody; or
(b) the officer has reasonable grounds for believing that the accused has broken, or is likely to break, any condition of bail; or
(c) a surety has given written notice to the police that the person bailed is unlikely to surrender to custody and for that reason the surety wishes to be relieved of any obligations.
which of the bail breaches amount to a criminal offence?
The only bail breach which is a criminal offence is failing, without reasonable cause, to surrender to custody. This offence is commonly known as failing to surrender (‘FTS’). This is an offence punishable summarily by up to three months’ imprisonment and/ or an unlimited fine or 12 months and/ or an unlimited fine on indictment.
what is a certificate of full argument - Bail?
- Contains the arguments made in the bail application
- The court serves these
- If there has been a second application with the change of circumstances, the court must identify the change of circumstances and cite why that has changed or not changed their decision
how many attempts does D get with applying for bail when their trial is in the Magistrates court
they have 3 attempts
- first time application
- Second time application
- appeal to the Crown Court
how many attempts does D get for bail when their trial is in the Crown Court
they have 2 attempts
- first time application
- second time application
Bail Timeline - the usual case
- The defendant attends court the first time the case is listed, and applies for bail.
- If the defendant is unsuccessful, the case will be returned to court a week later where the issue of bail can be raised a second time without any restriction or qualification, and the defendant can apply again. In principle it is possible for the defence advocate to make identical applications at the first and second hearings and to find that the same application is denied first but then allowed by a different bench of magistrates (or District Judge).
- Once the defendant has had both applications, the defendant must secure a ‘certificate of full argument’ from the magistrates’ court before then appealing to the Crown Court (if D wishes to do so). The certificate is simply a short summary that the magistrates produce so that the Crown Court knows what has transpired in the court below. Appeals are heard one business day after an appeal notice is served.
- D can only apply again if there has been a change in circumstances.
Bail Timeline - Urgent Cases
- In urgent cases, the defence may wish to exercise its appeal right more quickly than would be allowed by waiting a week for a second attempt in the magistrates’ court.
- The Crown Court will hear a bail appeal no later than one business day after the appropriate notice is served, but clearly this is still a quicker route to being heard than waiting for a week to pass and applying again in the magistrates’ court.
- If a defendant appeals to the Crown Court after only one application in the magistrates’ court, then the defendant loses the right to a second application in the magistrates’ court.
- D can only apply again if there has been a change in circumstances.
Appeals notices must be served as soon as practicable.
Bail Granted by the Magistrates Court - Prosecution appeal process
a) prosecution must have opposed bail originally
b) offence must be punishable by imprisonment
c) prosecution indicates orally at the hearing when bail is granted that they will appeal (the defendant is then held in custody)
d) intention to appeal is confirmed in writing and served on the court and defence within two hours
e) appeal is heard within 48 hours – excluding weekends
f) appeal is heard by a Crown Court Judge
can the prosecution appeal the granting of bail?
Yes.
Bail Granted by Crown Court - Prosecution Appeal Process
same as when the prosecution appeals bail that has been granted by magistrates. the only difference is that the appeal is heard by a High Court Judge within the High Court.
how is the start of the trial defined when in the Magistrates Court?
then the Magistrates start hearing evidence
how is the start of the trial defined when in the Crown Court?
when the jury are sworn
Prosecution appeal of bail decision - oral notice
- must give oral notice at the conclusion of proceedings
- must give trial notice before the accused is released from custody
- it will suffice that oral notice was given to the court officer and when the justices had rose, but there accused was still in custody
- oral notice must be confirmed in wiring and served on all parties and the court.
what happens to D when bail is appealed by the prosecution?
D is to remain in custody until appeal is disposed of
how long does the prosecution have to serve written confirmation of the appeal of granting bail?
2 hours from the conclusion of bail proceedings
if not done within the 2 hours, the accused will be released on bail (based on original conditions set by the court) and the appeal will be deemed as disposed of
what options does the court haver if the accused refuses to turn up to court whilst on bail?
(1) The court may issue an arrest warrant (often called a ‘bench warrant’), under the BA 1976, s. 7(1). This applies whatever court the accused was bailed to attend and regardless of whether bail was granted by the custody officer at the police station or by the court itself at an earlier hearing. The usual form of warrant simply orders that the accused be arrested and brought to court. However, at the court’s discretion, the warrant may be ‘backed for bail’ (see D7.99), either with or without a requirement for sureties. Where the accused fails to appear, a bench warrant will normally be issued. It should be noted that the Justices’ Clerks Rules 2005 (SI 2005 No. 545), sch. 1, para. 3, empowers a clerk to issue a warrant of arrest, whether or not endorsed for bail, for failure to surrender to court, where there is no objection on behalf of the accused.
(2) Instead of issuing a warrant, a magistrates’ court may adjourn and extend the accused’s bail under the MCA 1980, s. 129(see D7.73). Similarly, the Crown Court, in appropriate cases, may simply order that the case be stood out of the list and take no further action in respect of the accused (who will remain under an obligation to attend whenever the case is next listed). Such a course of action is appropriate only where the court is satisfied that there is a good reason for the accused’s non-attendance (e.g., a doctor’s certificate has been sent to the court indicating that the accused is unfit to attend).
(3) It may be possible to proceed in the absence of the accused (though it should be borne in mind that if the offence is triable either way, a magistrates’ court may try the case only with the consent of the accused, and that consent must be given at a hearing at which the accused is present unless the court is satisfied that there is a good reason for absence and the accused is represented by a lawyer who consents to summary trial on behalf of the accused: see D6.10).
how do the courts deal with an accused who has been arrested under Section 7 BA?
- Jurisdiction to deal with accused arrested under section 7 is with a Magistrate
- Despite if D is to be brought before CC for their crime
- must be brought to court within 24 hours of arrest.
- Mags can continue bail, with change of conditions. Or if accused has not breached, then bail is to continue.
- If D has breached and Mags revoke bail, D can only apply to CC to have bail granted again.
what happens if D has breached their bail in under 24 hours before their surrender date?
they will be brought back to the court on the time of their surrender and be dealt with accordingly.
where D has been brought back to court following a section 7 arrest and has not been yet convicted in the current proceedings, the magistrates cannot…
…witthold bail if there is no real prospect that the person will be sentenced to a custodial sentence in the current proceedings.
what happens in a section 7 inquiry?
There is a two stage approach:
(a) First, the justice must determine whether there has been a breach of a bail condition (if there has been no breach of a condition, then the accused is entitled to be granted bail on precisely the same conditions as before); secondly, if there has been a breach, the justice is obliged to consider whether or not the bailed person should be granted bail again. In carrying out the first stage of that process, the justice must act fairly and give the accused a chance to answer the allegation of breach. That does not, however, include an inquiry as to whether the arrested person had any reasonable excuse for breaching bail (since s. 7 makes no mention of such a defence and, indeed, s. 7 does not create a criminal offence).
(b) the second stage (assuming that the justice is satisfied that there has been a breach) is the point at which the reasons for the breach of bail become relevant. At that stage, the justice must consider all the issues relating to ‘reasonable excuse’ when deciding whether or not to grant bail. The breach of bail will be a factor, but only one factor, as to whether the bailed person is granted bail again.
the justice can rely on hearsay evidence.
is Section 7 an offence on its own?
No. it is an arrest power.
Failure to surrender
- Failure to surrender, without an excuse or a cause
- Burden is on the accused to provide a cause as to why they failed to surrender
- Accused who has an excuse must surrender to custody the moment that excuse ceases to apply
- Failure to surrender is punishable either as if it was on a summary conviction or as if it was a contempt of court
- Up to 3 months or a fine
- When it is with the CC they can receive a sentence of up to 12 months and unlimited fine as if it was treated like a contempt of court
failure to surrender - being late to court
this does not provide an automatic defence to a failure to surrender
What offence does Section 6 BA 1976 create?
an offence of absconding whilst on bail
Procedure for prosecuting offences under section 6 BA 1976
- With section 6 BA 1976, there is no need for a written charge or requisition. Nor a requirement for a summons
- It is seen appropriate that the court themselves will set in motion a course of proceedings of its own motion
- Although a prosecutor may invite the court to consider starting such proceedings
- Prosecutor will cross-examine
- Defence counsel is required to put forth the reasons why there has been a breach/failure to surrender. If the court is satisfied and a prima facie case of why there has been a breach and the defence is excused then the court will indicate no further action is necessary
- Otherwise the charge is out to D
- The decision of the decision that no charge is preferred on absconders first appearance after absconding, that decision is binding on further courts
where will the accused have their first hearing?
regardless of the type of offence, the first appearing the accused will have will be in the Magistrate’s Court
when must a first hearing be held by where the accused is on bail, if the prosecutor anticipates a guilty plea which is likely to be sentenced in a magistrates’ court;
14 days of being charged
when must a first hearing be held by where it is anticipated that the accused will plead not guilty, or the case is likely to go to the Crown Court for either trial or sentence.
28 days of being charged
which offences can a Magistrates deal with?
Summary only
Either-Way
which offences can a Crown Court deal with?
Either-Way
Indictable only
another word for Either-Way offences
Indictable offences
what does it mean if an offence is “indictable only”
can only be dealt with on indictment - can only be dealt with in the Crown Court
what are initial details?
the initial details that the Crown has against them.
what initial details have to be disclosed to the defence where the accused has been held in custody?
Where the accused was in police custody for the crime before the first appearance, the prosecutor needs to provide:
- The summary of the circumstances of the offence
- The accused past criminal record
what initial details have to be disclosed to the defence where the accused has NOT been held in custody?
If the accused was not in custody, then the prosecutor needs to provide
- Summary of the offence
- Accused previous criminal record
- Account given to the accused in interview
- Written witness statements, not including exhibits, at the stage of when the prosecutor sees material to plea or to decide which venue
- Statement of effect on witnesses and victims and victims family
are initial details always required?
Yes.
- Where the accused has requested them, they must be served accordingly
- If they are not requested then the prosecutor must prepare them anyway so they are available to the accused at the beginning of the first hearing
what happens if the prosecution do not provide initial details?
Ordinarily, the failure to supply initial details does not constitute a ground upon which a court may dismiss a charge or give rise to an abuse of process application. The usual remedy is for the court to adjourn a first hearing and/or award costs to the defence for the prosecution’s failure to serve.
why are initial details necessary?
The information supplied must be sufficient at the first hearing to allow the court to take an informed view on plea and venue for trial.
Where no guilty plea is anticipated, they should be sufficient to assist the court in identifying the real issues and in giving directions. The information required for the Preparation for Effective Trial (PET) form must be available and where there is to be a trial, the parties must complete the form.
when must initial details be served?
Initial details must be served on the court as soon as practicable, and in any event no later than the beginning of the day of the first hearing. Where the defendant asks for initial details, the same time limit applies to service of initial details on the defence. In any event the initial details must be made available to the accused no later than the beginning of the day of the first hearing. The CPS now uses electronic case files. These can be sent to defence representatives via secure email.
when is a video link seen to be suitable?
- Can be for sentence
- Not suitable for youths to be sentences as such
- Good for all advocates to do this remotely for bail
can the initial hearing be done via video link?
yes. The court may give directions to request the accused to be present at initial hearings. This can be via Video link.
what will the court consider when deciding whether to hold first hearing via video link?
directions for video link will be done in the interests of justice to do so
Especially required when the defence are required to provide submissions to the court
Court can also consider:
- The views of that person
- Facilities of being able to do so
- Where individual could take part effectively
- Where person is witness, the importance of their evidence in the hearing and whether direction would prevent any other party from using that evidence effectively
- Arrangements for members of the public to hear the procedure so being conducted in accordance with the rules
- Mental health also becomes a factor
- Video link is used to hinder disruptions and delays
- It can be difficult to conduct court conferences with client
Where the accused has entered a guilty plea, and attended through video link then the court will…
…proceed to sentencing so long as it is in the interests of justice to do so.
what does PTPH mean?
Plea, Trial and Preparation Hearing
does an accused have to be present at the first hearing?
yes. although here are exceptions in certain circumstances
does an accused have to be present at the first hearing?
yes. although here are exceptions in certain circumstances
what is the exception to an accused being resent at a Plea Before Venue Hearing?
It operates where the accused is legally represented and the court considers that due to the disorderly conduct of the accused it is not practicable for the proceedings to be conducted in their presence. In those circumstances, the representative can indicate the plea.
what is the exception to an accused being present for the Determination of a mode of trial hearing?
This is where the accused is legally represented; the representative indicates to the court that the accused consents to the mode of trial proceedings being conducted in their absence, and the court is satisfied that there is a good reason for the accused not being present. ‘Good reason’ is not defined, but ill-health is an obvious example. In these circumstances the representative can consent to summary trial or elect Crown Court trial on behalf of the accused.
for a guilty plea to be effective it must not be…
…ambiguous/equivocal
what does an ambiguous plea look like?
“I was guilty but it was not my fault”
(To an allegation of ABH) ‘Guilty, but I was acting in self-defence’
(To an allegation of theft) ‘Guilty, but I was going to give it back’
consequence son proceeding to sentence for an ambiguous plea
ground for an appeal
