3. Bail and Remands Flashcards
(84 cards)
1
Q
when can mags adjourn case?
A
at any stage before case is sent to CC for trial
or
before a summary trial
2
Q
how can decisions on adjournment be challenged and when will they intervene ?
A
can only challenge by way of judicial review. High court will only interfere with a decision on adjournment if there are COMPELLING REASONS to do so.
3
Q
Examples of decisions on adjournment that have been challenged:
A
Mags refused adjournment despite the fact D and sol both couldn’t get to court due to bad weather
the decision to fix a date for a trial at which the prosecution expert could attend and the defence expert (whose report had been served in good time) could not was clearly wrong’
4
Q
when must the mags court remand (bail or custody) the accused on adjourning the trial on information?
A
they must do so where accused is 18 or over and offence is either way and
- on first occasion he was in custody or was on bail and surrendered to the court OR
- accused has been remanded at any time in course of proceedings
5
Q
what sections are the magistrates powers of remand governed by?
A
s.10 and s.18 MCA
6
Q
s.18 MCA relates to?
A
adjournments until allocation.
7
Q
s.10 MCA relates to?
A
appearances for summary offences until conviction and appearances for EW offences from after mode of trial has been determined in favour of summary trial to conviction
8
Q
when may the mags adjourn without remanding the accused?
A
MC has discretion to remand/not remand
- at all appearances for summary offences up to conviction AND
- at appearances for EW offences up to either a determination for trial on Indictment or summary conviction
**BUT ONLY IF **accused has not previously been remanded and initially appeared in answer to a summons/requisition
9
Q
when must the court fix a date for the next hearing upon adjourning?
A
Where a case is just adjourned - no need to fix date
Where there is a remand, adjournment date must be fixed and is date to which the accused is remanded.
10
Q
what is the max period that the mags can remand an accused in custody?
A
8 clear days
11
Q
can the mags make further remands?
A
person brought before court after remand can be remanded again.
12
Q
how long can an accused be remanded on bail by mags?
A
may be longer than 8 says if accused and pros agree to a longer period
13
Q
Custody time limit between 1st appearance and committal?
A
70 days
14
Q
custody time limit between first appearance and summary trial (EITHER WAY)?
A
for an either way offence:
70 days unless decision to hold summ trial is taken within 56 days - if so, CTL is reduced to 56 days
15
Q
custody time limit between first appearance and summary trial (Summary only)?
A
56 days
16
Q
custody time limit between committal and start of trial on indictment?
A
112 days
17
Q
custody time limit for multiple committals
A
If accused was committed for trial on two or more different occasions, the 112-day limit applies separately in relation to each offence
18
Q
custody time limit between committal and start of trial (s.51 sending)?
A
182 days
(any period where they were held in custody by mags must be deducted)
19
Q
custody time limit where indictment preferred by COA?
A
112 days from preferment
20
Q
custody time limit voluntary bill?
A
where proceedings are by way of a voluntary bill of indictment the 112-day period runs from the date of preferment of the bill
21
Q
what happens when a CTL expires?
A
accused MUST be granted bail in relation to the offence CTL relates to.
once CTL expires and is not extended, custody time- limit regime ceases to operate and will not apply to any further period of remand.
22
Q
what is the procedure for extending a CTL?
A
BEFORE the expiry - Crown court if accused has already been committed or mags in other cases - may extend if both following are satisfied:
1) pros acted with all due diligence and expedition and
2) there is good and sufficient cause for doing so.
can extend more than once
23
Q
bail can be granted in connection with?
A
proceedings (accused/convicted) or
arrest (under arrest/warrant for arrest )
24
Q
who can bail someone charged with murder?
A
only a Crown court judge
25
who can the crown court bail?
anyone who:
- has been sent in custody for trial un CC
- has been given custodial sentence in mags and is appealing sentence/conviction
- is in custody of CC pending case disposal
- has applied after CC decision to state their case to Divisional Court or seeking JR
- who has had appeal cert granted by CC
- who has been remanded in custody b mags
26
when does CC have to make murder bail decision
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.
27
is there a presumption in favour of bail?
yes there is a rebuttable presumption in favour of bail.
28
who benefits from the presumption in favour of bail?
any person who appears before CC or MC in course of proceedings with offence or applies for bail in those proceedings
any person who has been convicted of an offence and whose case is adjourned for reports before sentencing (other than this situation - presumption does not apply after conviction)
any person who has been brought before the court for alleged breach of comm order.
29
who cannot rely on the presumption in favour of bail?
anyone who has been convicted (other than where reports are being sought before sentencing).
presumption does not apply to bail from a police station (but custody should still grant bail unless refusal can be justified).
30
bail following indication of guilty plea at PBV hearing?
Usually the position stays the same
if they plead on bail - stay on bail
If they plead in custody - remain in custody
31
what are the exceptions to the presumption in favour of bail?
Court cannot grant bail to accused who is charged with
murder
attempt murder
manslaughter (with custodial sentence)
rape/attempted rape
other SOA 2003 offences
IF the accused has been convicted in the past of any of these offences UNLESS exceptional circs justify it.
"no bail for homicide or rape if previous conviction"
32
test for bail for murder?
accused who is charged with murder may not be granted bail unless court of opinion that:
there is no significant risk that the accused will, if released on bail, commit an offence that would cause physical/mental injury to another.
33
can bail be refused for an accused charged with indictable offence?
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
34
what are the 3 main statutory reasons for refusing bail (sch 1 para 2) ?
fail to surrender
commit further offence while on bail
interfere with witnesses / obstruct course of justice.
35
what is the standard of proof for the bail grounds?
court must be satisfied that there are substantial grounds for believing they would occur.
36
sch 1 para 2 grounds (FTS, CFO, IW) do not apply where....
accused is 18, has not been convicted and it appears that there is no real prospect of them being sentenced to a custodial sentence in the proceedings
37
what factors should court take into account in deciding whether para 2 grounds (FTS, CFO, IW) apply?
nature and seriousness of offence & probable method of dealing with offender
character antecedents associations and community ties
bail record (having answered bail in past)
strength of evidence against accused.
38
nature and seriousness of offence
more serious offence, more severe sentence - more likely to abscond
39
character and antecedents
previous convictions - make custody more likely - more reason to abscond
40
associations and community ties
Examining the 'community ties' of the accused involves looking at how easy it would be to abscond and how much the accused has to lose by absconding.
Factors include:
- How long has accused lived at present address
- Does accused have a partner
- Does accused have dependent children
- Is accused in employment
- If so for how long
- Does the accused have a mortgage or protected tenancy
41
bail record
Absconding in earlier proceedings is evidence of a risk that the accused may do so again
42
risk of injury to someone else
include the fact that the accused has previously committed offences while on bail, or
the suggestion that potential prosecution witnesses have already received threats and/or are known to the accused
43
strength of pros evidence
one who knows there is a good chance of being acquitted is less likely to abscond than one who anticipates almost certain conviction.
where it is borderline - court may prefer to risk accused absconding rather than risk acquittal following long period in custody.
44
what are the other grounds for withholding bail?
- risk of injury to associated person (associated person = relationship or parent of child)
- accused already on bail for another offence (does not apply where no real prospect of custody being imposed)
- accused own protection (anger in the area / risk of public seeking retribution)
- where accused serving custodial sentence for another offence (can have technical bail)
- insufficient info for decision on bail
- previous absconding in present proceedings (does not apply where no real prospect of custody being imposed)
- accused charged with murder.
45
bail in cases involving abuse of drugs?
accused may not be granted bail unless court of opinion that there is **no significant risk of accused committing an offence while on bail** and the 3 following conditions apply:
* drug test ev of class A being in someones body
* offence they are charged with is drug offence or court thinks it was committed due to misuse of class A
* person does not agree to drug dependency assessment or participate in any follow-ups if assessment is carried out
46
exceptions to the presumption in favour of bail for summary offences?
Where summary offence punishable by imprisonment exceptions are:
* where accused has been granted bail & fts and court thinks they would fts again.
* accused on bail on date of current offence
* believes that D would commit offence (cause physical/mental harm) against associated person
* accused serving custodial setnecne
* not enough info
47
Grounds for withholding bail for non-imprisonable offences
* where accused has been granted bail & fts and court thinks they would fts again.
* own protection
* already serving custodial
* where accused is under 18 and convicted of FTS offence and grounds to believe they would FTS, CFO, IW
* convicted of FTS and believe cause injury to associated person
48
condition of duty to surrender to custody means?
surrendering into custody of the court the accused has been bailed to attend
Date fixed for surrender can be varied
FTS without reasonable cause = offence
49
when can the court impose conditions on bail?
where it is necessary to do so to prevent FTS CFO IW
50
what type of conditions can be imposed?
* residence (live & sleep)
* notification of address change
* report to police station
* not to enter certain place/area
* not to contact (indirectly/directly) someone
* passport surrender
* reside at bail hostel or probation hostel
* electronic monitoring
* curfew condition
51
what are sureties?
A person granted bail in criminal proceedings may be required, before release on bail, to provide one or more sureties to secure the person's surrender to custody
only in cases where there appears to be a risk of absconding
52
what is a deposit of security?
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
only if there is a risk of absconding
53
where would an application to vary bail conditions be made?
to the court who granted bail OR
if has been committed for sentence or sent for trial to crown make app to crown court
54
does the person applying need to give notice?
yes have to give advance notice to court and other party explaining what is sought and why
55
when must the application be served if there is a hearing already due?
not less than 2 business days before any hearing at which they want the court to consider the variation
56
if a hearing needs to be set for bail variation when does the hearing have to be?
no later than 5 business days after application was served
57
does the court have to give reasons for varying bail?
court to give reasons for specified bail decisions
no duty to give reason for decision refusing to vary bail conditions
58
what are the possible consequences for breach of bail?
arrest without warrant and bail being withdrawn
59
who has to be present at a bail application?
each party and surety affected has to be present or have had chance to make reps
if accused is in custody and waived right to attend - they can be absent
if accused is in custody and was present when bail was refused previously - they can be absent
59
do bail apps have to be in person?
no can be via live link or audio link as they are prelim hearings
60
does the court have to justify a refusal of bail at a bail app?
yes
61
what process will the court follow when deciding bail?
* ask pros if they have any objections to bail
* pros then, using CPS file and police info, set out their objections
* pros will then tell of pre-cons
* pros have to provide all info relevant to bail
* pros required to specify each statutory exception to presumption in favour of bail which they relt
* defence may present arguments for bail
* if no arguments by defence - pros still have to give objections so court can refuse on basis of them
* court then decides
62
is there a right to make repeated argued bail applications?
accused who was refused bail can make fully argued application at next hearing even if it repeats arguments.
unless accused consents to being absent next hearing will take place within 8 clear days.
63
how many times can the same arguments for bail be made?
if the second application fails, the court does not need to hear arguments it has already heard
64
when are certificates of full argument required?
where mags adjourn case and remand in custody after hearing a fully argued bail app IF the court has not previously heard a fully argued bail app or has heard one but is satisfied that there has been a change in circs (must state what change was)
65
why is the certificate of full argument important?
right to apply to CC for bail is dependent on it.
66
what options are open to an Accused Remanded in Custody or on Conditional Bail by Magistrates?
can apply for bail to CC. can also appeal against conditions imposed by MC.
67
procedure for applying/appealing to CC after MC bail decision...
* must give MC, CC, prosecutor and surety written notice of intention to make application as soon as reasonably practicable after MC decision
* notice must:
* -- explain why bail should not be withheld / why condition should be varied
* -- explain any further info/argument since MC decision
* -- attach full argument certificate where it is a bail app
* pros opposing should notify CC and accused and serve notice for reasons
68
when should a CC bail app be heard
no later than the business day after notice of the application or appeal was served.
69
when can repeated bail apps be made to CC ?
where one app has been made cannot make another argued app unless there are fresh arguments / considerations
70
do the prosecution have a right to appeal against granted bail?
yes either to CC if MC granted or High court if CC granted it (unless CC grasnted on appeal from MC)
71
what cases is the pros right to appeal against granted bail limited to?
* offences punishable by imprisonment and
* prosecution conducted by or behalf of DPP and
* pros made reps that bail should not be granted (before it was granted).
72
what is the procedure for prosecution appeals against decision to grant bail?
1. give oral notice of appeal at conc of hearing where bail granted
2. following oral notice - accused remanded in custody
3. must congirm oral notice in writing and serve on accused and court within 2 hours of conc of hearing
4. appeal then must be heard within 48 hours (excluding weekends and public hols)
73
what are the 3 options open to the court when an accused fails to surrender?
1. issue an arrest warrant - accused to be arrested and brought to court (can be backed for bail)
2. can adjourn and extend bail (mags) or CC can take no further action and leave them to attend next hearing --> **only appropriate where there is good reason for non-attendance
**3. proceed in absence of accused subject to when this is acceptable**
74
where an accused has been bailed to attend court police can arrest them without warrant and prior to surrender date if.......
* they have reasonable grounds for believing accused is not likely to surrender to custody or
* reasonable grounds for believing that accused has broken or is likely to break condition of bail
* a surety has given written notice to the police that the person bailed is unlikely to surrender to custody
75
what must happen to person arrested for breach of bail?
must be brought before mags as soon as practicable and in any event within 24 hours (excluding sundays)
76
how is arrest following grant of conditional bail by crown court dealt with?
must be dealt with by the magistrates court always
if MC finds that they have breached bail they can:
* impose stricter conditions
* revoke bail and remand until fixed trial date or further CC order
accused can then apply for bail to CC.
77
where a person fails to surrender/breaches bail (s.7 BA) what is the procedure when brought before the court?
1. court decides whether person is likely to FTS or has broken/likely to break condition of bail
2. if established they can either - remand in custody (subject to no real prospect that the person will be sentenced to a custodial sentence in the proceedings) or grant more onerous bail
3. if not establushed - bail MUST be granted on same conditions as originally imposed
78
how does a s.7 BA (FTS/BOB) inquiry take place?
decision usually based on reps from pros & defence
then it is a 2 stage process
1. determine whether there has been a breach - accused must be given chance to answer allegation of breach
2. if satisfied - consider whether bail should be granteed again - here they consider reasonable excuses etc
79
what does s.7 of the bail act do?
confers a power of arrest. It does not create a separate offence
80
what does s.6 Bail act do?
creates an offence for failing to surrender
81
when is FTS an offence?
when a person fails without reasonable cause to surrender to custody.
burden on accused to show reasonable excuse
82
how is a FTS offence punishable?
punishable either on summary conviction or as if it were a criminal contempt of court'
Summarily convicted:
Imprisonment for up to 3 months and or
Fine of any amount
contempt of court (CC) or sent to crown for sentence:
imprisonment for up to 12 months and/or
an unlimited fine
83
what is the procedure for prosecuting FTS offence?
proceedings either intiated by application of prosecution or courts own motion
punsihable either on summary conviction or as if it were contempt of court.
accused has to plea to charge.
