Unit 4 Bail

Question 1

When do the Magistrates have the power to adjourn?

Answer 1

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 2

How do you challenge the grant or refusal of adjournment?

Answer 2

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.

Question 3

When must a date be fixed following an adjournment?

Answer 3

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. (adjourn = summary / remand either-way (once trial is decided and indictable)

Question 4

Presumption in favour of Bail

Answer 4

‘A person to whom this section applies shall … benefit from the presumption in favour of bail. They are any person:

a. 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) in connection with those proceedings (s.4(2)) ANYONE PRE-CONVICTION; 
b. who has been convicted of an offence and whose case is adjourned for reports before sentencing (s.4(4)) CONVICTED BY ADJOURNED FOR PSR; and
c. who has been brought before the court under the CJA 2003, sch. 8, for alleged breach of a requirement of a community order (s.4(3)) BREACH OF COMMUNITY ORDER.

Question 5

Who cannot rely on the presumption in favour of bail?

Answer 5

An appellant seeking bail pending determination of an appeal against conviction and/or sentence cannot rely on the presumption in favour of bail. Neither can 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. 

Question 6

Can bail be continued after a guilty plea?

Answer 6

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 7

When can bail not be awarded?

Answer 7

No bail for homicide or rape if previous conviction.
the court may not grant bail to an accused who is charged with (or has been convicted of) murder, attempted murder, manslaughter, rape or attempted rape, or certain other offences under the SOA 2003, if the accused has been convicted of any of these offences (or culpable homicide) in the past. Unless it 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 8

An unconvicted accused charged with an offence which is imprisonable and triable on indictment need not be granted bail if one or more of the grounds for a remand in custody

Answer 8

a. where the accused has previously been granted bail and has failed to surrender to custody in those proceedings, and the court believes, in view of that failure, that the accused would, if released on bail, fail to surrender to custody;
b. where the accused was on bail on the date of the current alleged offence and the court is satisfied that there are substantial grounds for believing that, if released on bail, the accused would commit an offence while on bail (para. 3);
c. where the court is satisfied that there are substantial grounds for believing that, if released on bail, the accused would commit an offence while on bail by engaging in conduct that would, or would be likely to, cause physical or mental injury to an associated person, or cause such a person to fear physical or mental injury, i.e. domestic violence;
d. where the court is satisfied that the accused should be kept in custody for the accused’s own protection (or welfare, if a child or young person);
e. where the accused is already serving a custodial sentence;
f. where the accused has been arrested under the BA 1976, s. 7, and the court is satisfied that there are substantial grounds for believing that, if released on bail, the accused would fail to surrender to custody, commit an offence while on bail or interfere with witnesses or otherwise obstruct the course of justice (whether in relation to the accused or any other person);
g. where the court is satisfied that it has not been practicable to obtain sufficient information for the purpose of taking the decision on whether to grant bail for want of time since the institution of the proceedings.

Question 9

No real prospect of a custodial sentence

Answer 9

The BA 1976, sch. 1, part IA, para. 1A, provides that para. 2 (failure to surrender to custody), para. 3 (committing offences while on bail) and para. 7 (accused arrested under s. 7) do not apply where the accused has attained the age of 18, and has not been convicted of an offence in the proceedings, and it appears to the court that there is ‘no real prospect that the defendant will be sentenced to a custodial sentence in the proceedings’.

Question 10

Standard of proof for risk of absconding, further offences and interference with witnesses

Answer 10

The court need not be satisfied that those things will in fact occur in the event of bail being granted, or even to be satisfied that they are more likely than not to occur. The court must merely be satisfied that there are ‘substantial grounds for believing’ that they would occur. 

Question 11

The grounds for withholding bail in cases of non-imprisonable offences

Answer 11

It should be noted that the grounds of ‘risk of absconding etc.’ and ‘insufficient time’ for refusing bail to someone charged with imprisonable offences do not apply where the offences are non-imprisonable.

a. where the accused is under the age of 18 or has been convicted of an offence in those proceedings and (in either case), having been previously granted bail in criminal proceedings, has failed to surrender to custody and the court believes, in view of that failure, that the accused would fail to surrender to custody; 
b. where the court is satisfied that the accused should be kept in custody for his or her own protection (or welfare, if a child or young person);
c. where the accused is already serving a custodial sentence;
d. where the accused is under the age of 18 or has been convicted of an offence in those proceedings, and (in either case) has been arrested under the BA 1976, s. 7, and the court is satisfied that there are substantial grounds to believe that the accused would fail to surrender to custody, commit an offence on bail, or interfere with witnesses or otherwise obstruct the course of justice;
e. where the accused has been arrested under s. 7 and the court is satisfied that there are substantial grounds for believing that, if released on bail, the accused would commit an offence while on bail by engaging in conduct that would, or would be likely to, cause physical or mental injury to an associated person, or to cause such a person to fear such injury, i.e. domestic violence.

Question 12

What is the sole permitted purpose of requiring a surety?

Answer 12

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 13

What is the difference between surety and security?

Answer 13

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 14

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

Answer 14

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 15

Right to repeated bail arguments

Answer 15

First repeat will be within 8 days. After that, at subsequent hearings, the court ‘need not hear arguments as to fact or law which it has heard previously’.

Question 16

Certificates of full argument (bail)

Answer 16

• The court must issue a certificate confirming that full argument was heard 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 (s. 5(6A)(b)).
• 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 17

Is a section7 arrest (breach of bail conditions) I separate offence?

Answer 17

No. It should be emphasised that the BA 1976, s. 7, merely confers a power of arrest. It does not create a separate offence.

Question 18

Section6 BA – offence of absconding/failure to surrender

Answer 18

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 19

What is the punishment for failure to surrender?

Answer 19

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.

Question 20

Process of a Bail application (examinable)

Answer 20

• Defendant will be in the dock (usually a secured dock)
• Defendant will be guarded by a security guard
• Brought to the dock handcuffed
• Once brought to the court, handcuffs removed – at this point the defendant is in the custody of the court
• Prosecution will go first with their substantial grounds to believe their objections
• Defence will then present their case in rebuttal
• All done on submission of the lawyers – evidence being called is incredibly rare, defendant is rarely involved in the process itself
o Evidence will be called for a surety before the court to prove that the person in question has the alleged funds to support the surety.
o The person needs to confirm, in person, to the judge that they are willing to but the money forward as surety and that they fully understand the risks and obligations of doing so.
o Prosecution are able to interview the witness also (rare)
o Surety’s role is to secure attendance at court