Pre-trial criminal litigation I (bail) Flashcards
What is the difference between adjournment, remand, and bail?
- Adjournment = describes what happens to a case when court cannot conclude case in one hearing
- Remand = D is sent away and told to come back another day; served in custody or on bail
- Bail = release of person subject to duty to surrender to custody at appointed time/place
What is the concern if D is refused bail and kept in custody for more trivial offence?
D will be in custody longer whilst awaiting trial than they ever would be as part of sentence for offence (undesirable!)
Who applies for bail (and what is the result of this) and when (is the first decision on bail made)?
- Prosecution raises objection to bail meaning D must apply for it
- First decision re bail made by magistrates’ (where all cases start) except murder cases where only Crown can grant bail
What is conditional bail?
Bail granted subject to conditions; defence advocate considers what conditions might alleviate concerns re D’s behaviour on bail
Bail is an ongoing issue - can evolve during currency of proceedings e.g. if D breaches terms of bail
What is the ‘right to bail’ and what is the consequence of it?
- Right to bail = court must presume D entitled to bail
- Consequence = P has to apply to remove bail and have D remanded into custody on a legally specified objection
When does the right to bail become absolute?
Where case has not progressed according to time limits for getting D through criminal justice system
Does the right to bail still apply after conviction (where case adjourned to assist in sentencing) or where a person allegedly has breached a requirement of community order?
Yes!
In what 2 circumstances in the entirety of the CJS process will the right to bail not apply? Can bail still be granted?
- Where D is appealing conviction/sentence (less worried about putting person already determined guilty away)
- Where D being committed for sentence (in view that D deserving of sentence more than 6 months)
Bail can still begranted in both cases; but presumption does not apply
What are the ‘grounds of objection’? How many must be made out/succeeded on by prosecution?
The objections one can take to bail being granted - prosecution can take as many/few as it wishes and only needs to succeed in one to have bail denied
When should conditional bail be granted?
Where court considers a ground of objection would be made out if D were to be simply released but considers that conditions put upon release of D would alleviate concerns about D’s behaviour to render concerns no longer substantial
For indictable offences - what are the 3 grounds of objection to bail and to what extent should they be believed?
The ‘big 3’ as BPP says
If D is to be released on bail, there are substantial grounds for believing that D would either:
1. Fail to attend subsequent hearing (failure to surrender to custody);
2. Commit further offences on bail; and/or
3. Interfere with witnesses or otherwise obstruct course of justice e.g. witness intimidation, destruction of evidence
What is meant by ‘substantial grounds for believing’ in the context of the test for objecting to bail for indictable offences? I.e. what must be shown?
Only necessary to show that fears of behaviour happening have substance and merit
Not a particularly high test!
What type of enquiry is it/how is it shown that fears of behaviour happening have substance and merit? Is evidence/are witnesses used?
- Is a factual enquiry where representations made by both P and D
- Neither have to call witnesses/produce documentary evidence - but witnesses can be called and hearsay evidence is permitted
What does the ‘no real prospects’ filter mean for the grounds of objecting to bail?
Bail should not be removed under one of these grounds if D is charged with offence(s) where there are no real prospects of D receiving custodial sentence
I.e. no real prospect of sentence for offence being custodial = ground of objection cannot succeed as bail should not be removed
‘Big 3’ grounds are available for any indictable offence (carrying imprisonment)
Summary of indictable
Substantial grounds for believing D will (ground[s] of objection) unless there is no real prospect D will receive a custodial sentence
But need not be granted bail if relevant conditions applicable
For summary offences - what are the 2 grounds of objection to bail?
Only available if:
- Having been given bail in these proceedings, breaches a condition of that bail
- Has a conviction for failure to surrender in past
Logic - for less serious offences, is broadly assumed that D would not risk absconding/interfering with witnesses is not so committed to crime that D will offend on bail - but when D’s behaviour on bail suggests otherwise/breaches condition = grounds for objection become eligible grounds to remand D in custody
What are the 3 ‘need not be granted’ bail conditions? What happens if they exist?
- A remand in custody would be for the D’s own protection
- Court has insufficient information to deal with the issue of bail so remands in custody for a short period for the production of sufficient evidence; and/or
- D already serving a sentence in custody
If they exist = D need not be granted bail
General summary of bail
Can bail be granted for murder?
Only by a Crown Court Judge
In what circumstances can bail be granted for murder by a Crown Court Judge? How is this different where D has a previous conviction for murdr, attempted murder, rape or a serious sexual offence?
- D may not be granted bail unless no significant risk of D causing offence likely to cause physical/mental injury
- If previous conviction (for mentioned offences) = no bail unless exceptional circumstances
If D is charged with attempted murder, rape or a serious sexual offence and has a previous conviction for these (or murder), can D be granted bail?
Not unless there are exceptional circumstances to justify it
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If D is charged with offence carrying life imprisonment and was either a) already on bail and/or b) fails to attend having been on bail, can D be granted bail?
No - unless there is no significant risk of further offences being committed/failure to attend
Where D is charged with an offence against partner/family, when will D need not be granted bail for any imprisonable offence?
Where court believes there are substantial grounds to believe that D would commit offence on bail by engaging in conduct that would (be likely to) cause physical or mental injury to associated person (= spouse, partner, family member)
Where D is charged with abuse of drugs where the test shows D has Class A drug in body and offence relates to/was motivated by taking Class A drug, when may the court not grant bail?
May not grant bail unless no significant risk of D committing offence on bail
If the D was on bail at the time of the alleged offence, when does the court need not grant bail for indictable and summary offences?
- Summary = need not grant if there are substantial grounds for believing D will commit further offences
- Indictable = need not grant bail
If D absconds whilst on bail for an indictable offence, what is the position on bail?
Need not be granted again unless it is prior to conviction and there are no realistic prospects of D receiving custodial sentence
What role do ‘factors’ play? Are they the same as grounds? When must they be considered?
- Factors are not grounds but they help the court determine if grounds are made out as from evidence base
- Are mandatory considerations for the main three grounds
What are the 4 factors?
- Nature and seriousness of the offence and likely disposal - if convicted of serious offence, D will be tempted to abscond
- Character of D, D’s antecedents, associations and community ties
- D’s bail record in past - absconding/committing offences on bail in past can be seen as indicative
- Strength of evidence - D who knows there is a good chance of being acquitted is less likely to abscond
What is meant by character, antecedents, associations, community ties?
- Character = personal circumstances like drug addictions
- Antecedents = previous convictions which make custodial sentence more likely
- Associations = friends with criminal records
- Community ties = how easy it is for the D to abscond and how much D has to lose by absconding (e.g. has kids)
How are factors used to support grounds?
I.e. how do they relate
E.g. considering if someone will attend next hearing (fail to surrender ground)…
* Evidence against D strong and penalty severe = ground more likely
* D has strong associations in area and less likely to go on the run = ground less likely
Can courts remove bail on the basis of a factor?
No! The factor may be relevant but the denial of bail must be on basis of a legitimate ground of objection
- ‘Mr Jones, you are hereby remanded in custody due to the seriousness of the offence with which you are charged.’ = wrong
- ‘Mr Jones, I have substantial grounds for believing that if granted bail, you would commit further offences. I take this view on account of the seriousness of the offences before me.’ = right
What is a person granted bail under a duty to do?
Surrender to custody by attending court at time/date specified
What are the different bail conditions that might be imposed to reduce the risk of D absconding?
- Residence at given address
- Reporting to police station at given times
- Surety (offer of money made by someone [not D] with influence over D to secure their return to court - forfeit sum otherwise)
- Security (same as surety but can be given by D)
- Tagging
- Bail hostels (where D has no fixed address)
- Surrender of passport
What are the different bail conditions that might be imposed to reduce the risk of D committing further offences while on bail?
- Curfew (only appropriate where time of day relevant to offending pattern)
- Restriction on where D may go during bail
- Restriction on who D has contact with during bail (e.g. co-Ds)
- Electronic monitoring
- Bail hostels
What are the different bail conditions that might be imposed to reduce the risk of D interfering with witnesses?
- Restriction on where a D may go during bail
- Restriction on wo D has contact with during bail
- Bail hostels
How can bail conditions be varied? Will a hearing always be needed?
- By defence or prosecution applying on advance notice to other party to court which granted bail
- Hearing may not be needed if parties agree on variation
Is breaching a bail condition an actual offence?
No! If D is found in breach of a condition this will not be an offence
What will happen to a D who is in breach of their bail condition?
Will be arrested and brought to magistrates’ where it is determined whether D should have bail going forward - i.e. either has bail conditions tightened or is remanded in custody (bail withdrawn)
Must a D actually be in breach of a bail condition to be arrested?
No, can be about to be in breach of condition and still be arrested e.g. curfew in London at 8pm and D at Glastonbury at 7:30pm = does not have to wait until 8pm
What is a criminal offence in terms of bail? What is the punishment?
- Failing, without reasonable cause, to surrender to custody (known as FTS = failing to surrender)
- 3 months imprisonment and/or unlimited fine or 12 months and/or unlimited fine on indictment
What is the burden on D to show in the case of FTS? What happens if this is proved or not proved?
Burden on D to show they had a reasonable cause for failing to surrender on balance of probabilities
- Proves = not be convicted of offence
- Cannot prove = convicted and sentenced for offence and considered in future bail applications
Where D has been refused police bail, what will happen to them?
They will appear before the next available magistrates’ court in custody
On D’s arrival at court after being denied police bail, what will defence check with prosecutor? What is the consequence of this?
Whether they intend to object to bail being granted
- If not = stated to court
- If yes = prosecutor must outline objections to court
After hearing both submissions, court announces decisions - where D has right to bail under s4 Bail Act court gives its reasons if it refuses bail or imposes conditions
For D who is having a trial in the magistrates’ court, how many attempts to they have to get bail and where/when will each be?
Can have 3 attempts…
- In magistrates’ on first appearance, if refused…
- In magistrates’ again 1 week later (possible to have same application with different outcome), if refused…
- In Crown
After both applications to magistrates’ for bail fail, what must D secure?
A certificate of full argument (produced by mags so Crown knows what has transpired)
When can a D appeal to the Crown after 2 failed attempts in the magistrates’?
One business day after appeal notice is served
Where D is having a trial in magistrates’, what can D do to secure bail in urgent cases? What is the cost of this?
Instead of waiting a week for 2nd attempt in magistrates’, can have appeal heard by Crown (one business day after appropriate notice served) but will lose right to second application in magistrates’
For D who is having a trial in the Crown court, how many attempts to they have to get bail and where will each be?
2 attempts
- In magistrates’ on first appearance, if refused…
- Crown
When must appeal notices be served?
As soon as is practicable
Where magistrates’ court grants bail and the prosecution seeks to appeal it, what are the 6 conditions?
Very rare
- Must have opposed bail originally
- Offence must be punishable by imprisonment
- Prosecution indicates orally at hearing when bail is granted that they will appeal (D then held in custody)
- Intention to appeal confirmed in writing and served on court and defence in 2 hours
- Appeal heard within 48 hours (exc weekends)
- Appeal heard by Crown Court Judge
Is the procedure the same where prosecution seeks to appeal granting of bail by a Crown Court?
Yes, but appeal heard by High Court judge instead
What do the custody time limits seek to prevent? Can they be extended?
- Seek to prevent unduly long periods of time being spent on remand in custody awaiting trial
- Can be extended only if sanctioned by court
What are the custody time limits for:
- Trials in magistrates’ of summary/either-way offences
- Trials in Crown of indictable/either-way offences
- 56 days
- 182 days less any days spent in custody prior to case being sent to Crown (usually zero)
What must happen before the expiry of the custody time limit?
A trial
When does a trial officially commence?
- Magistrates’ = when court begins hearing evidence from prosecution
- Crown = when a jury is sworn in
Where the custody time limit expires, what 2 things must prosecution show if it applies to extend time limits?
- It has acted with all diligence and expedition
- There is good and sufficient cause to have D further remanded into custody
If a D is remanded into custody at first hearing and their trial will take place in the magistrates’ court, what must happen?
I.e. rules on for how long a person can be remanded into custody where they are going to be tried in the magistrates’
Their first remand must be for no more than 8 clear days (so can be brought back to court within this time so another bail application can be made)
After second appearance (within 8 clear days), what must happen?
D must be brought back to court every 28 days or fewer just so court can remand them onwards for trial
Can happen in D’s absence with their consent/over video link
Summary on rules on for how long a person can be remanded into custody where they are going to be tried in the magistrates’
