Unit 3 Bail

Question 1

Is breaching bail a separate criminal offence? What is the offence of absconding? What can the police do if S breaches bail?

Answer 1

No -> if bail is breached the police has a power to arrest the accused under s. 7 BA 1976 (no need to remember this, but helps with understanding notes). However, this does not create an offence.

BUT -> s. 6 BA 1976 creates the offence of ‘absconding’. Test = an A on bail commits an offence if they fail to surrender to custody without reasonable cause.

Question 2

When do the Magistrates have the power to adjourn?

Answer 2

At any stage before the case is sent to the Crown Court for trial or before (or during) a summary trial, a magistrates’ court may adjourn the proceedings.

Question 3

How do you challenge the grant or refusal of adjournment?

Answer 3

Judicial Review.

However, the Divisional Court will be ‘particularly slow’ to interfere with a decision to refuse an adjournment, given the discretionary nature of that decision and will only do so on recognised grounds (1) error of principle, (2) error of law, or (3) ‘plainly wrong’

N.B. from the notes on appeals - P also has a power to appeal adverse CM decisions or decisions that lead to the case effectively being dismissed. Presumably this could apply to adjournments

Question 4

Why are ‘adjournments’ on this bit of the syllabus?

Answer 4

Because the mags have a power to remand (in custody or on bail) when they adjourn proceedings.

Question 5

When MUST a mags court remand the accused upon adjournment? When MAY the mags do so?

Answer 5

MUST: when adjourning proceedings for an EW offence, unless the accused: (a) first appeared in answer to a summons or requisition (as opposed to being brought before the court in custody or appearing in answer to police bail); and (b) has not been remanded at an earlier hearing.

MAY: (a) at all appearances for summary offences up to conviction; and (b) at appearances for either way offences up to either a determination for trial on indictment or summary conviction, provided the accused initially appeared in answer to a summons or requisition and has not subsequently been remanded

Question 6

What are the practical differences between adjourning and remanding the accused and adjourning and not remanding the accused?

Answer 6

If D is not remanded:

• No need to fix date for next hearing at time of adjournment
• D does not commit an offence if failing to appear at next date (although may be possible for AW to be issued or proceedings to be conducted in absentia)

If D is remanded:

• Adjournment date must be fixed as date to which remanded
• AD commits an offence if remanded on bail and fails w/o reasonable cause to surrender

Question 7

When must a date be fixed following an adjournment?

Answer 7

Where a case is simply adjourned, there is no need to fix the date for the next hearing at the time of adjourning, whereas if there is a remand the adjournment date must be fixed forthwith and is the date to which the accused is remanded.

Question 8

What is the maximum period for which a magistrates’ court may remand an accused in custody?

Answer 8

8 clear days

Question 9

Are there any limits on the number of consecutive remands that can be imposed on an accused?

Answer 9

No - a person who is brought before the court after an earlier remand may be remanded again.

The only limitation on the number of remands is the general discretion of magistrates to refuse an adjournment if it would be against the interests of justice (e.g., because they consider that the party requesting the adjournment should have been ready to proceed on the present occasion).

Question 10

How long can an accused be remanded on bail for?

Answer 10

• No maximum time
• Can be longer than 8 clear days if the remand is on bail and both the accused and the prosecution agree to a longer period of remand

Question 11

What is a custody time-limit?

Answer 11

Specifies the maximum period of time for which an accused can be remanded in custody while a particular stage of the proceedings is being completed.

Question 12

What is the custody time limit between first appearance and committal to the CC?

Answer 12

70 days

Question 13

What is the custody time limit between first appearance and summary trial for (a) a summary offence and (b) an EW offence?

Answer 13

• 56 days for summary offences
• 70 days for EW offences which go to summary trial, unless decision for summary trial is taken within 56 days -> then 56 days

Question 14

What is the custody time limit between committal and trial on indictment?

Answer 14

112 days

-> If a single indictment is preferred containing counts in respect of which the accused was committed for trial on two or more different occasions, the 112-day limit applies separately in relation to each offence

Question 15

What is the custody time limit between committal and trial on indictment where the accused was sent to the CC under s. 51 CDA?

Answer 15

• 182 days minus any period during which the accused was held in custody by the magistrates

Question 16

What is the custody time limit between the CA ordering a retrial and the start of the retrial?

Answer 16

112 days

Question 17

What is the custody time-limit period where proceedings are by way of a voluntary bill of indictment?

Answer 17

112 days between preferment of that bill and the start of the trial

Question 18

What is the consequence of a custody time-limit expiring before the completion of the stage of proceedings to which it applies?

Answer 18

The accused must be granted bail, in relation at least to the offence to which the limit relates.

UNLESS P applies for extension before expiry; court may extend if P can show:

(1) P has acted w/ all due diligence and expedition and

(2) good and sufficient cause to have D further remanded into custody

N.B. An already-extended limit may be further extended

Question 19

In which circumstances do the mags have the power to grant bail?

Answer 19

(1) When adjourning the case

(2) For the period of obtaining reports after summary conviction

(3) When sending an accused to the CC for trial or for sentencing

(4) After conviction, pending the determination of an appeal to the CC

Question 20

In which circumstances does the CC have the power to grant bail?

Answer 20

(1) When someone is sent to it in custody for trial

(2) When someone who has been given a custodial sentence in the Mags is appealing to the CC against conviction or sentence

(3) Whenever it adjourns between conviction and sentence

(4) Whose case = decided by CC but seeking JR or opinion of HC

(5) Granted certificate from CC that the case is fit to appeal sentence/conviction to CoA

(6) Who has been remanded in custody by a magistrates’ court on adjourning a case provided the magistrates’ court has granted a certificate that, before refusing bail, it heard full argument.

Question 21

What are the rules that govern the grant of bail in murder cases?

Answer 21

• a person charged with murder may not be granted bail except by order of a Crown Court judge
• a person who appears before a magistrates’ court charged with murder must be committed (in custody) to the Crown Court
• a Crown Court judge must then make a decision about bail as soon as reasonably practicable and, in any event, within the period of 48 hours (excluding weekends and public holidays) beginning with the day after the day on which the person appears before the magistrates’ court (s. 115(3))
• Bail can ONLY be granted if the court is of the opinion that there is no significant risk that the accused will, if released on bail, commit an offence that would, or would be likely to, cause physical or mental injury to any other person

Question 22

To which categories of people does the presumption in favour of bail apply?

Answer 22

(1) A person who appears before the Crown Court or a magistrates’ court in the course of or in connection with proceedings for an offence, or applies to a court for bail (or for a variation of the conditions of bail) - i.e. ANYONE PRE-CONVICTION; 

(2) A person who has been convicted of an offence and whose case is adjourned for reports before sentencing - CONVICTED BUT ADJOURNED FOR PSR; and

(3) A person who has been brought before the court for alleged breach of a requirement of a community order (s.4(3)) BREACH OF COMMUNITY ORDER.

N.B. this means that unless the case has been adjourned for a pre-sentence report, the presumption does NOT apply post-conviction. Therefore, a person seeking bail cannot rely on the presumption in 2 situations:

(1) An appellant seeking bail pending determination of an appeal against conviction and/or sentence cannot rely on the presumption in favour of bail.
(2) An offender who is committed to the Crown Court for sentence following conviction in a magistrates’ court.

In both those situations, there is power to grant bail, but its grant or refusal is entirely at the discretion of the court. 

Has been held that if an accused is committed for sentencing to the CC following a guilty plea, then the court should not usually change the status quo. I.e. if they were sent in custody, they should remain in custody. If they were sent on bail, they should remain on bail.

Question 23

Can bail be continued after a guilty plea?

Answer 23

Yes. It would not be usual to alter the position as regards bail or custody. When a person who had been on bail pleads guilty at the plea before venue, the usual practice should be to continue bail, even if it is anticipated that a custodial sentence will be imposed by the Crown Court, unless there are good reasons for remanding the accused in custody. If the accused is in custody, then it would be unusual, if the reasons for the remand in custody remain unchanged, to alter the position.

Question 24

In which cases do you have to show ‘exceptional circumstances’ to get bail?

Answer 24

No bail if accused is charged with (or has been convicted of) murder, attempted murder, manslaughter, rape or attempted rape, if they have been convicted of any of these offences before, unless the court is of the opinion that there are exceptional circumstances which justify it.

In a case where the previous conviction was for manslaughter, the restriction applies only if the accused received a custodial sentence for that offence.

Question 25

What are the grounds for refusing bail in the case of indictable offences?

Answer 25

1. ‘Primary grounds’: Court satisfied there are substantial grounds for believing (normal evidence rules don’t apply; incl. second-hand) that D, if released on bail, would:

• (1) fail to surrender to custody (FTS)
• (2) commit a further offence (CFO) or
• (3) interfere w/ witnesses (IWW) or obstruct course of justice

-> But only applies if real prospect of a custodial sentence

2. Other grounds:

• Domestic violence – risk to an associated person
• Own protection
• Serving prisoner
• Insufficient time for court to make a decision on bail (may remand in custody to enable necessary info to be discovered)
• Class A drug-user cases: (i) evidence of drug in A’s body; (ii) misuse of Class A drug caused/contributed to offence; (iii) A refuses to undergo assessment of dependency/propensity. Presumption reversed: unless no significant risk of A committing offence on bail
• Murder. Presumption reversed: unless no significant risk A will commit an offence likely to cause physical/mental injury to another person
• Offence committed on bail (although doesn’t apply if 18+, hasn’t yet been convicted in current proceedings and no real prospect of custodial sentence)
• Absconded in present proceedings – s. 7 (although doesn’t apply if 18+, hasn’t yet been convicted in current proceedings and no real prospect of custodial sentence)

Question 26

Go over mindmap for grounds to refuse bail for imprisonable non-indictable offences and criminal damage below £5,000 (bail mindmap (2))?

Answer 26

There must be:

1. real prospect of a custodial sentence and
2. One of the exceptions:

• (1) (a) A previously granted bail and FTS in those proceedings, and (b) court thus believes would happen again
• (2) (a) A was on bail on date of current alleged offence and (b) substantial grounds for believing that A would CFO while on bail;
• (3) (a) A has been arrested for absconding in present proceedings (s.7), and (b) substantial grounds for believing that A would FTS, CFO or IWW

Or otherwise:

• Domestic violence
• Own protection
• Serving prisoner
• Insufficient time
• Class A drug cases

Question 27

Go over mindmap for grounds to refuse bail for non-imprisonable summary offences (bail mindmap (3))?

Answer 27

1. (a) A has been convicted of an offence and (b) Previously granted bail and FTS in these proceedings and (c) Court, in view of that, believes A will FTS
2. (a) A has been convicted of an offence and (b) A has previously absconded in these proceedings (s.7) and (c) SGFB that A would FTS, CFO or IWW
3. (a) A has been arrested under s. 7 and (b) SGFB domestic violence
4. Own protection
5. Serving prisoner

Question 28

Which requirements must be satisfied before bail conditions can be imposed?

Answer 28

The conditions must be necessary to secure that the person:

• (1) does not FTS
• (2) does not CFO
• (3) does not IWW
• (4) is available for inquiries or a report to assist in sentencing
• (5) attends an interview with a legal representative

Alternatively, conditions can be imposed for the accused’s own protection.

Question 29

Are there any limits on the kinds of bail conditions that can be imposed?

Answer 29

No

Question 30

What is the sole permitted purpose of requiring a surety?

Answer 30

A surety can be sought only for the purpose of securing surrender to custody, and not for any other purpose. It follows that one or more sureties should be required only in cases where there appears to be a risk of absconding.

Question 31

What is the difference between surety and security?

Answer 31

A person cannot stand a surety for themselves, however, persons granted bail may be required to give ‘security’ for their surrender to custody, i.e. deposit with the court money or some other valuable item which will be liable to forfeiture in the event of non-attendance in answer to bail.

Question 32

Are third parties able to make assets available for security? (not surety!)

Answer 32

It is permissible for a third party to make available an asset to an accused for use as security, and that the court can accept such an asset. However, as it is the accused who gives the security, the arrangements the accused might make with those who assist with the provision of the requisite security are not a matter for the court. There is no obligation for the third party to be notified before the security is forfeited on the accused’s non-attendance.

Question 33

What rules govern the making of applications to vary bail conditions?

Answer 33

• A or P may apply for conditions to be imposed/varied
• Application made either to: (1) court which granted bail or, (2) if sent to CC for trial or committed for sentence, the CC
• Contents: explain what is sought and why
• Served on court and other party 2 business days before any hearing at which it is to be considered, if such hearing is already due
• Court may determine w/o hearing if variation agreed to by the parties
• If a hearing, no later than 5th business day after application served

Question 34

What are the potential consequences of breaching bail conditions?

Answer 34

Breach of any condition which has been imposed may result in the accused being arrested without warrant under the BA 1976, s. 7(3), and bail being withdrawn.

Question 35

Describe how bail applications normally work/are decided? Does A have to be present at the hearing?

Answer 35

• The accused will apply for bail
• The hearing is a preliminary hearing
• A decision on bail cannot be made unless each party is present (in person or via live link) or has had an opportunity to make representations
• However, where the accused is in custody, bail may be considered in the absence of an accused who has waived the right to attend, or who was present when bail was refused on a previous occasion and who has been in custody continuously since then
• P and D will make submissions.
• If P oppose the application, P must provide the court will all info relevant to bail

Question 36

Explain the rules that govern repeat bail applications

Answer 36

First repeat

• This is a fully argued application - can repeat any arguments already made previously
• The application can be made at the next hearing, which will be within 8 clear days of the previous hearing

Subsequent applications

• Court does not have to hear repeat arguments
• Bench can effectively treat findings from previous bench as a form of ‘res judicata’
• They may therefore refuse to hear argument in favour of bail, and need consider the question only to the limited extent of satisfying themselves that the accused has exhausted the argued bail applications to which the accused is entitled as of right and that there has been no material change of circumstances since the last argued application to enable the matter to be reopened.

Question 37

What are certificates of full argument of bail and what rules govern them?

Answer 37

• A certificate confirming that full argument was heard in a bail application heard
• Must be issued if either the court has not previously heard full argument on a bail application made by the accused in the proceedings in question or it has previously heard such argument but is satisfied that there has been a change in circumstances or that new considerations have been placed before it
• In a case where the court has heard a second or subsequent fully argued application on the basis of a change in circumstances or new considerations, the certificate must state what the change was (s. 5(6B)).
• The accused must be given a copy of the certificate (s. 5(6C)).
• The significance of the issue of a certificate of full argument is that the right to apply to the Crown Court for bail is dependent on it.

Question 38

What can the accused do if they have been refused bail by the mags or if the mags have imposed bail conditions that they want to contest?

Answer 38

Apply for bail to the CC/appeal to CC against bail conditions

Question 39

Describe the procedure of applying for bail from the CC if the Mags have refused bail/appealing the imposition of bail conditions. When does the hearing in this case have to take place?

Answer 39

• The accused must give written notice of the intention to make the application to (1) the mags, (2) the CC and (3) the prosecutor as soon as reasonably practicable after mags have reached their decision
• If it’s an application for bail, the notice must attach a copy of the certificate that the magistrates heard full argument as to bail (this is why the certificate is important)
• If P opposes app, P must serve notice of reasons for opposing and notify CC and A of opposition at once
• Hearing should be heard no later than the business day after notice of the app or appeal was served

Question 40

Can you make repeat bail applications to the CC?

Answer 40

ONLY if there are fresh arguments or considerations to put before the court.

Question 41

Under what circumstances does the prosecution have a right to appeal against a decision to grant bail? Which court is the appeal made to?

Answer 41

Location:

(1) to the Crown Court against a decision by a magistrates’ court to grant bail (s. 1(1)), and
(2) to the High Court when the Crown Court grants bail

Requirements:

• (1) A must be charged with or convicted of an imprisonable offence (if A were an adult, in the case of a juvenile)
• (2) Prosecution is conducted by or on behalf of DPP or specified prosecutor
• (3) Before bail was granted, P made representations that it should not be granted

P can only appeal to the HC from a decision of the CC to grant bail, if the CC’s decision was not made pursuant to an appeal from a bail decision made in the mags by P. I.e. if A is granted bail by the mags, P can appeal to the CC, but cannot then appeal from the CC’s decision to the HC. But if A was not granted bail in the mags and then the A appeal to the CC and got bail, P can appeal this decision to the HC. In other words, P has no right to appeal a bail decision twice.

Question 42

What is the procedure that the prosecution must follow to appeal a grant of bail?

Answer 42

(1) Give oral notice of appeal at the conclusion of the proceedings in which bail was granted, and before the accused is released from custody.

(2) Following the oral notice of appeal, the accused must be remanded in custody until the appeal is determined or otherwise disposed of.

(3) The oral notice must be confirmed in writing, served on the court and the accused within two hours after the conclusion of the proceedings; otherwise the appeal is deemed to be disposed of and the accused will be released on bail on the terms on which it was granted by the court when it granted bail.

(4) The appeal must be heard (by the Crown Court or the High Court, as the case may be) within 48 hours, excluding weekends and public holidays. The Divisional Court construed this as meaning that the appeal hearing must commence within two working days of the date of the decision to grant bail. The Court rejected the contention that the appeal had to commence literally within 48 hours of the moment upon which oral notice had been given.

N.B. Blackstone’s discusses many cases in which the prosecution is granted some leeway in fulfilling any of these steps late.

Question 43

What powers does the court have if an accused who has been granted bail fails to appear?

Answer 43

(1) Issue an arrest warrant

(2) Mags may adjourn and extend A’s bail. 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 an obligation to attend whenever the case is next listed) - similar to adjournment but not technically the same.

(3) In some circumstances can proceed in the absence of the accused

Question 44

Under what circumstances may a PO arrest an A on bail without a warrant prior to the date on which A was meant to surrender to court? What rules govern what must happen once A has been arrested?

Answer 44

Circumstances:

• (a) the officer has reasonable grounds for believing that the accused is not likely to surrender to custody; or
• (b) the officer has reasonable grounds for believing that the accused has broken, or is likely to break, any condition of bail; or
• (c) a surety has given written notice to the police that the person bailed is unlikely to surrender to custody and for that reason the surety wishes to be relieved of any obligations

Rules following arrest:

• A must be brought before a single magistrate - even if the CC granted bail, cannot be brought before the CC
• When? Asap and no later than 24h after arrest (excluding Sundays). If arrested within 24h of time appointed for surrender to custody A must be brought before court at which he would have surrendered for trial
• If A is kept for longer this is unlawful

Question 45

Where A is brought before a mags following arrest for breach or likely breach of bail conditions, what rules govern the mags’ decision making?

Answer 45

The enquiry:

• The question for a magistrate before whom a person is brought is whether that person is likely to fail to surrender to custody, or else has broken or is likely to break any condition of bail (as the case may be).
• No need to hear evidence, can rely on hearsay

Yes -> Mag can remand in custody or grant bail on different (usually more onerous) conditions. BUT if the case involves pre-conviction bail (i.e. not bail pending PSR, etc), then mag cannot withhold bail if it appears that there is ‘no real prospect that the person will be sentenced to a custodial sentence in the proceedings’.

No -> Bail MUST be granted

N.B. even if there has been a breach, A may have a ‘reasonable excuse’ and mag can decide not to make any changes (i.e. release on bail on previous terms)

Question 46

Section6 BA – offence of absconding/failure to surrender

Answer 46

Under s.6(1), a person who has been released on bail and who fails, without reasonable cause, to surrender to custody, is guilty of an offence. The burden of showing reasonable cause is on the accused (s.6(3)). Moreover, a person who had reasonable cause for failing to surrender on the appointed day nevertheless commits an offence by failing to surrender as soon after the appointed time as is reasonably practicable (s.6(2)). It follows that an accused who has a reasonable excuse for failing to attend court must surrender to custody as soon as reasonably practicable after that excuse ceases to apply (and commits an offence under s.6 if not).

Question 47

What is the punishment for failure to surrender?

Answer 47

An offence under s.6(1) or (2) is ‘punishable either on summary conviction or as if it were a criminal contempt of court’ (s. 6(5)). An offender summarily convicted of an offence under s.6 is liable to imprisonment for up to three months and/or a fine of any amount. An offender who is committed to the Crown Court for sentence, or who is dealt with in the Crown Court as if guilty of a criminal contempt, is liable to imprisonment for up to 12 months and/or an unlimited fine.