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
`
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)
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
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
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
Summary on rules on for how long a person can be remanded into custody where they are going to be tried in the magistrates’
