Pre-Trial Criminal Litigation

Question 1

What is adjournment?

Answer 1

Court cannot conclude the case in one hearing, so the case is adjourned.

Question 2

What is remand?

Answer 2

When a defendant is sent away and told to come back another day.

Question 3

Who applied for a defendant to be remanded into custody?

Answer 3

The prosecution.

Question 4

How can the prosecution apply to have the defendant remanded into custody?

Answer 4

Present objections to bail. These are finite and defined by law.

Question 5

Who makes the decision to grant bail?

Answer 5

There is a presumption in favour of bail, but if the prosecution objects, the defence first applies for bail in the Magistrates Court except for murder cases, where it will be the crown court.

Question 6

What is conditional bail?

Answer 6

Bail is granted subject to conditions.

Question 7

Who does the right to bail NOT apply to?

Answer 7

People appealing their conviction sentence or defendants being committed for sentence from the MC to the CC.

Bail can be granted here - the presumption just doesn’t apply.

Question 8

For INDICTABLE offences, what are the grounds on which prosecution can object to bail?

Answer 8

There are substantial grounds (‘substance and merit for believing?’) for believing that the defendant would:

Fail to attend a subsequent hearing;
Commit further offences on Bail;
Interfere with witnesses or otherwise obstruct the course of justice.

Also, can’t object if there are ‘no real prospects’ of D receiving a Custodial Sentence.

Question 9

In what cases can someone with a summary offence have their bail objected to?

Answer 9

Only if a defendant breaches a condition of their bail in these proceedings, or if they have a conviction for ‘fail to surrender’ in their past.

Ground only activated by a trigger event - d being arrested for breach of bail.

Question 10

What are the further grounds that are widely applicable when a defendant need not be granted bail?

Answer 10

Custody would be for D’s protection, court has insufficient info to deal with the issue of bail, d is already serving a sentence in custody.

Test is simply ‘need not be granted bai;’.

Question 11

What are the bail objection rules for ‘serious crime cases’?

Answer 11

MURDER: If d has pre-conviction for murder, attempted murder, rape, D may not be granted bail unless there are exceptional circumstances to justify it. If he doesn’t have a pre-conviction, D may not be granted bail unless there is no significant risk of D causing an offence likely to cause physical or mental injury.

ATTEMPTED MURDER, RAPE: If D has pre-conviction for murder rape etc. D may not be granted bail unless there are exceptional circumstances to justify it.

LIFE IMPRISONMENT OFFENCE: If D was already on bail or fails to attend having been on bail, may not be granted bail unless there is no significant risk of further offences being committed or failure to attend.

Question 12

What are the bail rules if D is charged with an offence that suggests they would cause injury to a partner or family member?

Answer 12

Need not be granted bail for any imprisonable offence if the court believes there are substantial grounds to believe D would commit an offence on bail by engaging in conduct that would or is likely to cause physical or mental harm to a connected person.

Question 13

What are the bail rules if D is charged with an offence that suggests they would abuse drugs?

Answer 13

Courts may not grant bail if the test shows D has a Class A drug in their body, or the offence was related to a Class A or caused by D taking Class A. Unless there is no significant risk of D committing an offence on bail.

Question 14

What is the difference between ‘factors’ and ‘grounds’ in considering objecting to bail?

Answer 14

When assessing the grounds, there are factors to be taken into consideration - help provide evidence for the grounds. The factors are mandatory considerations for the main three grounds.

Question 15

What are the factors in considering the grounds for objecting to bail?

Answer 15

The nature and seriousness of the offence and the likely sentence.

The character of the defendant, D’s antecedents, associations and community ties. Antecedents refers to previous convictions which can make a custodial sentence more likely. Character might include any personal circumstances such as drug addictions.
Associations might include friends with criminal records. Examining the ‘community ties’ helps to see how easy it could be for the defendant to abscond and how much D has to lose by absconding.

The defendant’s bail record in the past. Here, the court will also look at whether D has a tendency to commit offences on bail.

The strength of the evidence- a D who knows there is a good chance of being acquitted is arguably less likely to abscond than one who anticipates almost certain conviction.

Question 16

What are bail conditions?

Answer 16

Conditions that the defence can offer to be attached to bail.

Question 17

What are some common bail conditions?

Answer 17

Residence at a given address, curfew, reporting to local police station, surety (person agrees to forfeit a sum of money if D absconds), security, restriction on where they can go, who they can see, electronic monitoring, surrender passport, bail hostel.

Question 18

How can applications to vary bail conditions be made?

Answer 18

By the defence of prosecution applying to the court which granted bail. If the parties agree, the court may decide to vary a condition without a hearing.

Question 19

What will happen if a defendant breaches his bail conditions?

Answer 19

May be arrested, conditions may be tightened or they be remanded into custody.

breach of bail is not an offence, but police can arrest and then bring to magistrates court.

Question 20

What is the procedure for applying to bail?

Answer 20

If the defendant has been refused bail by police, they will appear before the next available magistrates court in custody. D advocate will check if P will object to bail being granted.

Any previous convictions are handed to court and then defence gives its arguments for bail to be granted. Court will announce its decision. If D has a right to bail under Bail Act, court must give its reasons if it refuses bail or imposes conditions.

Question 21

How many bail attempts can a defendant have?

Answer 21

The general rule is that a defendant who is having a trial in the magistrates’ court can have two attempts at getting bail at the magistrates’ court, and one attempt on appeal to the Crown Court.

Question 22

What is the bail timeline in the usual case?

Answer 22

1. D attends court first time case is listed and applies for bail.
2. If D unsuccessful, case returned a week later.
3. After both applications, secure a certificate of full argument from the MC and then appeal to the Crown Court.
4. Can only apply again if there is a change in circumstances.

Question 23

What is the bail timeline in urgent cases?

Answer 23

1. D doesn’t want to wait a week to try again in MC, so goes to CC no later than one day after notice is served.
2. If D goes to CC after only one MC application, they lose the right to a second MC application and can only apply again if there has been a change in circumstances.

Question 24

In what case can the prosecution appeal against the granting of bail? What is the process?

Answer 24

MC:
Prosecution must have opposed bail originally;
Offence must be punishable by imprisonment;
Prosecution indicates orally at the hearing when bail is granted that they will appeal (the defendant is then held in custody);
Intention to appeal is confirmed in writing and served on the court and defence within two hours;
Appeal is heard within 48 hours - excluding weekends;
Appeal is heard by a Crown Court Judge.

Question 25

What are the custody time limits?

Answer 25

56 days for trial in MC of summary only or either way offences. Start of trial is when court begins hearing evidence.

182 days in CC for indictable only or either way offences, less any days spent in custody prior to case being sent to CC. Start of trial is when jury is sworn.

Question 26

How long MC can a person be remanded into custody?

Answer 26

First remand must be for no more than 8 days. Then after second appearance every 28 days of fewer. Can consent for ‘onward remands’ to be conducted in their absence.

Question 27

True or False: All defendants have their first hearing before a Magistrates Court.

Answer 27

True.

Question 28

When the defendant is on bail, the first hearing must be within…

Answer 28

14 days of being charged is the prosecutor anticipates a guilty plea likely to be sentences in MC.

28 days of being charged if it is anticipated that the defendant will plea not guilty/ the case is likely to go to CC for trial or sentence.

Question 29

Does the defendant need to be present at the first hearing?

Answer 29

Yes. If they fail to attend after being bailed, the court can issue a warrant for their arrest.

Question 30

What is initial details of the prosecution case, when must they be served?

Answer 30

Prosecution to serve them as soon as practicable, no later than the beginning of the dat of the first hearing.

D can request these details, must be served no later than beginning of the day of first hearing.

Failure to serve usually leads to hearing adjourned or costs awarded to D.

Question 31

What must the IDPC include?

Answer 31

Summary of the circumstances of the offence, any account given by the defendant in interview, any written statements and exhibits available and material; victim impact statements; D criminal record.

Note if D was in police custody immediately before first hearing, only needs to comprise a summary of the circumstances of the offence and the defendant’s criminal record.

Question 32

What happens in the first appearance of a defendant charged with an indictable only offence?

Answer 32

Make a very brief MC appearance where the court deals with bail and legal aid, and the D will then be sent to CC where they enter a plea 3/4 weeks later.

Question 33

What are the RARE circumstances where a summary offence must go to the Crown Court?

Answer 33

This happens when a defendant is charged with an offence that is to be tried in the Crown Court and there is a summary only offence which is connected to the indictable offence.

If the summary only offence is one of those listed below and is before the magistrates’ court at the same hearing as the indictable offence, it must be sent to the Crown Court.

-Common assault, assaulting police officer, taking, driving motor vehicle without authority or while disqualified, criminal damage.

Question 34

A woman appears in the magistrates’ court for her first appearance charged with robbery and enters a not guilty plea. The magistrates refuse bail on the grounds that the starting point for sentencing would be a substantial custodial sentence and that the evidence against the defendant includes CCTV and is therefore very strong. The magistrates issue a full argument certificate.

How should the woman’s solicitor advise her regarding challenging the magistrates’ decision to refuse bail?

a) The solicitor should apply for review of the decision on bail to the High Court; the application will be heard by a single judge in chambers within 72 hours.

b) The solicitor should apply for bail to a Crown Court judge in writing, who should determine the application on the papers within 72 hours.

c) The solicitor should apply for review of the decision on bail to the Crown Court; the application should be heard by a single judge in chambers within 72 hours.

d) The solicitor should apply for bail to a Crown Court judge in writing. The bail application will be reheard before the judge in chambers within 48 hours.

e) The solicitor should apply for bail to a High Court judge in writing. The judge will determine the application on the papers within 48 hours.

Answer 34

D : The application is made to a Crown Court judge under s81 of the Senior Courts Act 1981 and takes the form of a full rehearing in chambers. It should be listed within 48 hours.

Question 35

A man is charged with murder and has a previous conviction for rape. He denies the murder and wants to apply for bail during the first hearing at the magistrates’ court.

Which statement best describes how the magistrates will consider the issue of bail?

a) The man is not entitled to bail; because of the nature of the offence and his previous conviction he will be remanded in custody until his trial.

b) The man has the presumed right to bail unless the magistrates have substantial grounds to fear that one of the exceptions to bail applies.

c) The man does not have the presumed right to bail; because of the nature of the offence and his previous conviction, the magistrates will only grant bail in exceptional circumstances.

d) The man does not have the presumed right to bail because of the nature of the offence and his previous conviction and the magistrates can never grant bail for an offence of murder.

e) The man does not have the presumed right to bail because of the nature of the offence and his previous conviction. The magistrates will only grant bail where there is no serious risk of harm.

Answer 35

D: Where a defendant is charged with murder, manslaughter, rape, a serious sexual offence (or attempted murder or attempted rape) and also has a previous conviction for one of those offences, s25 of the Criminal Justice and Public Order Act 1994 allows bail only to be granted where exceptional circumstances exist, so this man does not have the presumption of the right to bail. Where a defendant is charged with murder, however, as is the case here, ss114 and 115 of the Coroners and Justice Act 2009 only allow bail to be granted by a Crown Court judge, not the magistrates’ court, and even then only where the judge considers that there is no significant risk of the defendant committing, whilst on bail, an offence likely to cause physical or mental injury to another. In this case, the magistrates would not be able to hear a bail application.

Question 36

A woman is charged with theft from her employer. She has pleaded not guilty and the case has been adjourned for trial. The woman has a condition on her bail not to attend her employer’s offices, which was imposed to prevent her from committing further offences. The police receive a report from the employer that the woman has attended a retirement party held in the employer’s offices. The woman admits to attending the party but she explains that she had been invited and she did not discuss the case with anyone while she was there. The police allege that the woman has breached her bail condition.

Which statement best describes how this will affect the woman’s bail position?

a) The woman is not in breach of her bail condition because she was invited to the offices and has a reasonable excuse. She will not face any consequences for attending.

b) The woman is in breach of her bail condition. She will be brought before the court for her bail to be reconsidered.

c) The woman is in breach of her bail condition. She will be charged with an offence of breach of a bail condition.

d) The woman is not in breach of her bail condition because she did not commit any further offences at the premises. She will not face any consequences for attending.

e) The woman is in breach of her bail condition. She will be remanded in custody until the trial date.

Answer 36

B : Where a defendant fails to comply with one of their bail conditions, s7 of the Bail Act 1976 gives the police the power to arrest them and bring them before the court. Whilst breaching a bail condition is not a criminal offence, and so does not attract a separate charge, where the breach is proved or admitted, the court will reconsider bail and may remand the defendant in custody or impose further, more onerous, conditions. It would not constitute a reasonable excuse to have been invited to the premises and the fact that no further offence was committed is irrelevant to the breach, although both issues may be taken into account when the court decides how to deal with the breach.

Question 37

A woman is charged with GBH with intent. She denies the offence as she says she was acting in self-defence. The woman is married with three children and has lived and in the same area for three years. She was born abroad and has dual nationality. The prosecutor objects to bail on the grounds that the woman may fail to surrender to court if bail is granted.

Which statement best describes the way that the court will consider bail?

a) The woman will not have the presumed right to bail as the offence is so serious that a custodial sentence is inevitable.

b) The woman will not have the presumed right to bail. As she has a foreign passport, she will need to surrender her passport for bail to be considered.

c) The woman does have the presumed right to bail but the serious nature of the offence will mean that bail will only be granted in exceptional circumstances.

d) The woman does have the presumed right to bail but only the nature and seriousness of the offence are relevant factors to decide if there are substantial grounds to believe she would fail to surrender to custody.

e) The woman does have the presumed right to bail and her community ties will be considered when deciding whether there are substantial grounds to believe she would fail to surrender to custody.

Answer 37

E: Section 4 of the Bail Act 1976 gives a presumption that defendants have the right to be granted bail pre-conviction. The only limitations on this right are concerning very serious offences GBH contrary to s18 of the Offences Against the Person Act 1861. This is not such an offence and does not apply here. The matters which the courts will take into account when considering the application are contained in Part 1, para 9 of Sch 1 to the Bail Act 1976 and are commonly referred to as the ‘para 9 factors’. These include the nature and seriousness of the offence and also the person’s character and community ties and other factors when deciding whether there are substantial grounds to believe that person would fail to surrender to custody. Although the fact that the woman holds a foreign passport may be an issue which is considered, and surrender of a passport is a condition that the court might impose under Part 1, para 8(1) of Sch 1 to the Bail Act 1976 to prevent failing to surrender, it is not automatically required in the case of defendants who hold foreign passports, and no conditions should be placed on a defendant’s bail unless they are necessary.

Question 38

A man is charged with ABH. He was granted bail but on the morning of his trial he fails to surrender to court. The trial is adjourned and a warrant is issued for the man’s arrest. The following morning, he attends the police station of his own volition and is arrested and taken to court. The reason he did not attend in accordance with his bail was that he was nervous about going to prison.

Which statement best describes how the court will deal with the man’s failure to surrender?

a) The man will be considered to have a reasonable excuse as he attended the police station before the warrant was executed.

b) The man is in breach of conditions of his bail and he will be brought before the court for his bail to be reconsidered.

c) The man has committed the offence of failure to surrender and will be remanded in custody until the new trial date.

d) The man has committed the offence of failure to surrender and will be sentenced for that new offence, but bail will be granted on the same terms as previously.

e) The man has committed the offence of failure to surrender and that conviction gives grounds for bail to be refused until the new trial date.

Answer 38

E: Failing to surrender in accordance with the terms of bail is a criminal offence (rather than a breach of bail condition) contrary to s6 of the Bail Act 1976. It is not a defence to attend the police station before the warrant is executed, although it will be viewed favourably when bail is being reconsidered. The man has committed the offence of failure to surrender and that conviction gives grounds for bail to be refused until the next court date. Part 1 of Sch 1 to the Bail Act 1976 provides that one of the exceptions to the right to bail includes ‘having previously been released on bail in, or in connection with, the proceedings the defendant has been arrested for failing to surrender or for breach of bail conditions’.

Question 39

What is used material?

Answer 39

Material that the prosecution will rely on at trial to prove its case against a defendant. Forms part of evidence like statements from prosecution witnesses, defendants record of taped interview, other documentary exhibits.

Question 40

What is unused material?

Answer 40

Not being relied upon by prosecution -e.g. statements from witnesses not to be relied upon by prosecution, records of previous convictions