Right to Bail + Exceptions Flashcards
what does the court consider when deciding upon a bail application?
- Whether the right to bail applies
- If there is a real prospect of custodial sentence
- Whether any statutory exceptions apply
- Conditional bail
what is the starting point for bail applications?
Presumption that all Ds have a right to unconditional bail unless one of the statutory exceptions applies (s4 Bail Act 1976)
when does the right to bail not apply?
The presumption does not apply (i.e. no right to bail) where:
o D has been convicted (unless proceedings adj. for PSR)
o D has been committed to CC for sentence
o D is appealing
when is the right to bail restricted/limited?
The presumption is restricted (i.e. bail is only granted in exceptional circumstances) where:
o D has a pre-con for: attempted/murder, manslaughter, attempted/rape (non-exhaustive); and
o D has been charged with one of these
who can grant bail where D has been charged with murder?
D charged with murder can only be granted bail by a CC judge
what does the real prospect of custodial sentence apply to?
indictable-only, either-way and summary imprisonable offences
what is the real prospect of custodial sentence test?
if convicted, is there a real prospect of a custodial sentence being imposed?
how does the court determine if there is a real prospect of custodial sentence?
Court determines this by considering the sentencing guidelines (inc. AF & MF)
explain the potential outcomes after applying the real prospect of custodial sentence test
- Real prospect all applicable statutory exceptions are available.
- No real prospect the court should not remand D to custody. The statutory exceptions to refuse bail are very limited
what statutory exceptions apply to imprisonable indictable offences? (5)
o There are substantial grounds to believe that if released on bail D would:
Fail to surrender to custody
Commit an offence whilst on bail
Interfere with Ws or otherwise obstruct the course of justice
o D’s own protection
o Not been practicable to obtain sufficient information to take a decision
o D was already on bail at the time of the offence
o D was released on bail in these proceedings and has been arrested for failing to surrender/breach of bail conditions
re: imprisonable indictable offences, what additional consideration applies? (5)
if P is relying on the most common ground (i.e. substantial grounds to believe: fail to surrender; commit offence; interfere) then the court must have regard to:
o Nature and seriousness of offence
o Likely sentence D will receive (inc. if D is already on suspended sentence)
o Strength of evidence against them
o D’s character (i.e. pre-cons), antecedents, associations and community ties
o Previous grants of bail
explain antecedents and give an example
= thing that exists which logically precedes another
i.e. D has pre-cons for theft to support a drug habit and still has the drug habit. P could argue therefore she is likely to keep committed theft
give two examples re: associations
D is known to be part of a gang
D knows W and it is feared they may try to interfere with them
give four examples re: community ties
- D is unemployed
- No relatives in the area
- Only live there for a short period of time
- No fixed above
what statutory exceptions apply to imprisonable summary offences? (6)
o D’s own protection
o D already serving a custodial sentence
o D has already been bailed in the proceedings and has been arrested for failure to surrender/breaching conditions and there are substantial grounds to believe D will:
Fail to surrender to custody
Commit an offence whilst on bail
Interfere with Ws or otherwise obstruct the course of justice
o Not been practicable to obtain sufficient information to take a decision
o D was on bail at the time of offence and there are substantial grounds to believe they will commit another offence
o Substantial grounds to believe D would commit an offence by causing physical or mental harm to another
what statutory exceptions apply to non-imprisonable summary offences? (5)
o D’s own protection
o D already serving a custodial sentence
o D has already been bailed in the proceedings and has been arrested for failure to surrender/breaching conditions and there are substantial grounds to believe D will:
Fail to surrender to custody
Commit an offence whilst on bail
Interfere with Ws or otherwise obstruct the course of justice
o History of failing to surrender
o D already bailed in these proceedings + substantial grounds to believe they will commit an offence by causing harm to another
