SA3 Bail and Remands

Question 1

What is the presumption relating to bail?

Answer 1

Police should grant bail subject to PACE 1984.

Rebuttable presumption in favour of bail under the Bail Act 1976.

Question 2

What is a ‘remand’.

Answer 2

Adjournment after charge. D can be ‘remanded in custody’ or ‘remanded on bail’.

Question 3

Grounds for withholding bail relating to indictable imprisonable offences.

Bail can be withheld if there are ‘substantial grounds’ for believing which three things?

Answer 3

D would:
1) fail to surrender to custody
2) commit an offence while on bail
3) interfere with witnesses or otherwise obstruct the course of justice.

Question 4

Under what grounds can bail be withheld relating to indictable imprisonable offences (apart from substantial belief D will do 3 things).

Answer 4

• D was already on bail for another offence when the present offence when the present offence was allegedly committed.
• D would commit an offence by engaging in conduct that would cause physical/mental injury to an ‘associated person’ (Domestic Violence).
• For D’s own protection. If D is a child, then also for their welfare.
• The court has insufficient info to make a bail decision (only relevant at first hearing).
• D has been arrested for absconding in present proceedings.
• In drugs cases, D has refused to undergo a drugs test.
• Where the case is adjourned for inquiries or a report, it would be impracticable to complete the inquiries or to make the report without keeping D in custody.

Question 5

Bail decision has to consider all relevant factors including…

Answer 5

a) Nature and seriousness of the offence. More serious, harsher the likely sentence and greater incentive to abscond.
b) D’s character/association/community ties. D’s criminal record and what they have to lose by absconding.
c) D’s record for having answered bail in the past.
d) Prior to conviction, the strength of evidence against D.
e) Substantial grounds for believing D will commit an offence while on bail.

Question 6

Where D is:
a) Over 18
b) Has not been convicted in the proceedings, AND
c) It appears to the court that there is not real prospect that D will not be sentenced to a custodial sentence in the proceedings.

Which grounds for withholding bail will not apply?

Answer 6

Where the court is satisfied that there are substantial grounds for believing that D, if released on bail, would:
1) fail to surrender to custody
2) commit an offence while on bail
3) interfere with witnesses or otherwise obstruct the course of justice.

It appears to the court that D was on bail on the date of the offence.

D has been bailed in the proceedings and has been arrested under s7 (i.e. for breach of bail or failing to surrender).

Question 7

Summary imprisonable offences.

Rules that are different to indictable imprisonable offences.

Bail need not be granted if:

Answer 7

Where D has been bailed in the proceedings and has been arrested under s7 (i.e. for breach of bail or FTS) AND the court is satisfied that there are substantial grounds for believing that D, if released on bail, would:
1) fail to surrender to custody
2) commit an offence while on bail
3) interfere with witnesses or otherwise obstruct the course of justice.

It appears to the court that D was on bail at the date of the offence AND the court is satisfied that there are substantial grounds for believing D, if released on bail, would commit a further offence.

D has failed to surrender to custody in any previous proceedings and the court believes, in view of that failure, that D, if released on bail, would fail to surrender.

Question 8

Non-imprisonable offences.

Rules that are different to indictable imprisonable offences.

Bail need not be granted if:

Answer 8

D has been convicted in the proceedings and has been arrested under s7 (i.e. for breach of bail/FTS AND the court is satisfied that there are substantial grounds for believing that, if released on bail, D would:
1) fail to surrender to custody
2) commit an offence while on bail
3) interfere with witnesses or otherwise obstruct the course of justice.

D has been arrested under s7 AND court is satisfied there are substantial grounds for believing that D, if released on bail, would commit an offence by engaging in conduct that would, or would be likely to cause:
A) physical or mental injury to an associated person, or
B) an associated person to fear physical or mental injury.

D has been convicted in the proceedings AND has failed to surrender in any previous proceedings AND the court believes, in view of that failure, D, if released on bail, would FTS.

Question 9

Under what circumstances can a person who is charged with/who has been previously convicted of murder, manslaughter or rape and who has previously been convicted of any such offence, be granted bail?

Answer 9

Only if the court is ‘satisfied that there are exceptional circumstances which justify it’.

For murder, only a CC judge can grant bail if the court is on the opinion that there is no significant risk of D committing, while on bail, an offence that would cause physical/mental injury to anyone else.

Question 10

Where Prosecution opposes the granting of bail, what can they do?

Answer 10

Apply to the court for a remand in custody.

Prosecutor outlines the facts of the case, present their objections to bail based on information that the police has provided.

Question 11

Is evidence usually called in bail applications?

Answer 11

No

Question 12

What can D do where the prosecution oppose the granting of bail.

Answer 12

Respond to prosecution’s application for a remand in custody and make their application for bail.

Opposition is usually on the basis that the prosecution’s objections are unfounded and/or those objections can be met by the imposition of conditions.

Question 13

What three options are available to the bench in a bail application?

Answer 13

1) Remand on unconditional bail.
2) Remand on conditional bail.
3) Remand in custody.

Question 14

In what circumstances will conditional bail be imposed?

Answer 14

1) Where there is a real risk that D will FTS, CFO or interfere with witnesses.
2) Conditions must be necessary to prevent the risk materialising.

Question 15

Who can apply to vary bail conditions?

Answer 15

Both the prosecution and defence.

Question 16

What bail conditions are commonly imposed?

Answer 16

• Residence.
• Reporting to the police at set intervals
• Surrendering passport.
• Curfew
• Electronic monitoring
• Provision of sureties.

Question 17

What are ‘sureties’?

Before putting forward someone as a surety, what must the advocate establish?

Answer 17

a 3rd party who promises to pay a specified sum if D absconds.

That the proposed surety:
* Understands the obligation they are taking on
* Has some influence over D
* Has the necessary funds.

Question 18

What is a security?

Answer 18

Where D lodges assets with the court and the assets are forfeited if they abscond.

Question 19

What is the length a mags can remand in custody?

Answer 19

Usually cannot exceed 8 clear days.

Exception – following summary conviction, can be up to 3 weeks for inquiries to be made into the most suitable method of dealing with the accused.

Question 20

Does D have to be present to be remanded in custody?

Answer 20

D can consent to being remanded in their absence if legally represented but cannot do so on more than 3 consecutive occasions (means D has to appear in court at least once a month).

Question 21

If bail is refused, can D make further applications?

Answer 21

Yes, at the next hearing.

If it is refused at the second hearing, at subsequent hearings, the court need not hear arguments as to facts/law that it has already heard.

Question 22

What happens after the mags refuse bail after a fully-argued application?

Answer 22

The court must issue a ‘certificate of full argument’.

D can then apply to CC for bail.

Question 23

Are CC bail apps heard in public/private?

Answer 23

Private

Question 24

Does D have the right to attend a bail app in the CC by live link?

Answer 24

No

Question 25

If unsuccessful in a bail app at the CC, can a further application be made?

Answer 25

Only if there is new info to be put before the court.

Question 26

Under what circumstances can the prosecution appeal against the granting of bail?

Answer 26

Only if:
* D is charged with an imprisonable offence.
* The prosecution is conducted by the CPS.
* CPS objected to bail at the bail hearing.
* Prosecutor gives oral notice of appeal at the end of the bail hearing, before D is released; and
* The prosecution serves written confirmation of the intention to appeal within the next two hours.

Question 27

If the prosecution are granted leave to appeal against the granting of bail, when will the appeal be heard?

Answer 27

Within 48h of the serving of written confirmation of the prosecution’s intent to appeal (excluding weekends/public holidays).

Question 28

What happens where D fails to surrender with good reason?

Answer 28

Case will be adjourned.

If D claims to be unfit to attend court, medical certificate should be produced.

Note: ‘unfit to work’ ≠ ‘unfit to attend court’.

Question 29

What happens where D fails to surrender without good reason?

Answer 29

A number of consequences may follow:
* Bench warrant for D’s arrest may be issued.
* Trial may take place in D’s absence.
* If there is a surety, their recognisance will be forfeited.
* D may be convicted of a SEPARATE OFFENCE of failing to surrender.
* D will have a reduced chance of being granted bail in the future.

Question 30

Does sentence for failure to surrender have to be proportionate to the sentence for the ‘main’ offence?

Answer 30

No

Question 31

What does failure to surrender without good reason mean for D’s chances of being granted bail again?

Answer 31

Presumption in favour of bail ceases to apply, unless there is no real prospect D will be sentenced to a custodial sentence in the proceedings.

Question 32

What is the consequence of a breach of bail conditions?

Answer 32

Not a criminal offence but gives rise to the powers of arrest.

Question 33

What happens after D is arrested for breach of bail conditions?

Answer 33

Must be brought before a mags within 24h (excluding Sundays).

Question 34

If D has breached bail conditions, can the mag withhold bail if D has not yet been convicted and there is no real prospect that they will receive a custodial sentence?

Answer 34

No

Question 35

What happens when the relevant custody time limit expires?

Answer 35

D must be released on bail.

Before expiry, prosecution can apply for an extension.

Question 36

What must the prosecution show in order to gain an extension of custody time limits?

Answer 36

1) That there is ‘good and sufficient reason’ for an extension.

2) They have conducted the case with ‘due diligence and expedition’.

Question 37

What is the custody time limit for summary offences?

Answer 37

56 days between first court appearance and the start of summary trial.

Question 38

What is the custody time limit for either-way offences in the mags?

Answer 38

70 days between first court appearance and either the start of summary trial or D being sent to the CC for trial.

Question 39

What is the custody time limit for either-way offences in the CC?

Answer 39

112 days between sending to the CC for trial and the start of the trial (making a total of 182 days).

Multiple committals – 112 days applies separately in relation to each offence.

Question 40

What is the custody time limit for indictable only offences?

Answer 40

182 days between sending to the CC for trial and the start of the trial.

Question 41

Where a mags court has summarily convicted an accused and passed a custodial sentence, can it grant bail pending the determination of an appeal to the CC/Divisional court by way of case stated?

Answer 41

Yes

Question 42

Does the presumption in favour of bail apply to a person who has been convicted of an offence?

Answer 42

No – only where the accused has been convicted and the hearing has been adjourned for pre-sentence reports.

Question 43

When a person who had been on bail pleads guilty at the PBV, what is the usual practice?

Answer 43

To continue bail, even if it is anticipated a custodial sentence will be imposed by the CC, unless there are good reasons for remanding the accused in custody.

Likewise if accused is already in custody, likely to remain unchanged.

Question 44

Is the nature and seriousness of an offence an automatic reason for refusing bail?

Answer 44

No, but might lead to increased likelihood of absconding.

Specific rules for homicide/rap cases where the accused has previously been convicted of such offence.

Question 45

What is the exception in which the presumption in favour of bail continues to apply after conviction?

Answer 45

Where there is an adjournment for the preparation of a pre-sentence report before sentence is passed.

Question 46

Do the grounds of:
a) ‘risk of absconding’
b) ‘insufficient time’

for refusing bail to someone apply where the offences are non-imprisonable?

Answer 46

No

Question 47

When imposing bail with conditions, is the court obliged to have substantial grounds in believing the accused will commit an offence on bail?

Answer 47

No. the justices should merely ask themselves, ‘is this condition necessary for the prevention of the commission of an offence when on bail’?

Enough that justices perceive a ‘real risk’.

Question 48

If a party intends to apply for a variation of bail conditions, what must they do?

Answer 48

Give advance notice to the court and to the other party, explaining what is sought and why.

Question 49

Does a bail hearing in the mags take place in public or private?

Answer 49

Either

Question 50

What are the limited conditions under which the prosecution can apply to the CC to appeal against the mag’s decision to grant bail?

Answer 50

1) The accused is charged with/convicted of an offence which is punishable by imprisonment, and

2) The prosecution is conducted by/on behalf of DPP AND

3) Before bail was granted, the prosecution made representations that bail should not be granted.

Question 51

What are the powers of the court when a bailed accused fails to appear?

Answer 51

1) Issue an arrest warrant.

2) Mags may adjourn and extend the accused’s bail/the CC 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 obligation to attend whenever the case Is next listed) – only appropriate where there is good reason for non-attendance.

3) Proceed in the absence of the absconded (in the mags – only with the consent of the accused).

Question 52

What must you have before applying to the Crown Court for bail.

Answer 52

A certificate of full argument from the magistrates’ court.

Question 53

Who hears an application for bail in the Crown Court?

Answer 53

A circuit judge or recorder.

Question 54

If the prosecution intend to appeal the granting of bail in the mags, to whom must they give oral notice?

Answer 54

Can be to the justices’ clerk rather than the mags.

Question 55

What is the purpose of a custody time limit?

Answer 55

to ensure trials on indictment begin within a reasonable time.

Question 56

What must the prosecution prove to extend the custody time limit upon expiration?

Answer 56

1) There is a ‘good and sufficient’ reason for extension.

2) That they have conducted the case with ‘due diligence and expedition’.