Bail

Question 1

what is remand?

Answer 1

Decision to adjourn/postpone a case and decide what will happen with D

Question 2

What are 3 ways in which a D may be remanded?

Answer 2

• Remand in custody
• Remand on bail with conditions attached to bail
• Remand on unconditional bail

Question 3

What is the basic rule in relation to remand in custody?

Answer 3

Cannot be remanded in custody for more than 8 clear days

Question 4

What happens if D is remanded in custody where D’s case is still in MC?

Answer 4

D needs to be brought to court on every fourth remand provided they have consented to this and have legal representation

Question 5

When may a court remand a D in custody for up to 28 days

Answer 5

if;

(a) it has previously remanded them in custody for the same offence; and

(b) they are before the court; and

(c) it can set a date to remand them to on which it expects the next stage of the proceedings to take place.

Question 6

What is the overall max period of remand in custody (custody time limit)

Question 7

When can prosecution apply to court to extend the custody time limit?

Answer 7

Must show, on the balance of probabilities, that there is good and sufficient case for the extension and that it is acted with due diligence and expedition

Question 8

what should happen where there is no successful application to extend custody time limit and time limit has expired

Answer 8

D must be released on bail until trial

Question 9

does a D have a right of appeal against an extension of a custody time limit

Answer 9

yes, can appeal to crown court against a decision of magistrates court to extend time limit

Question 10

when may a D on bail be remanded prior to conviction and for how long

Answer 10

D on bail may be remanded prior to conviction for any period of time, subject to D’s consent

Question 11

What is the presumption that bail will be granted?

Answer 11

(a) all Ds prior to conviction
(b) Ds who have been convicted if their case has been adjourned for the court to obtain reports before sentencing (ch11)
and
(c) Ds who are appearing before the court for breach of community sentence

Question 12

When does the presumption in favour of bail not apply

Answer 12

does not apply to Ds who;
- who have been committed to crown court for sentence
- who are appealing against conviction or sentence (ch12)

Question 13

To which offences does the presumption in favour of bail not apply

Answer 13

(a) murder
(b) attempted murder
(c) manslaughter
(d) rape
(e) attempted rape
(f) a number of other serious sexual offences

if D is charged with any of these offences or has previously been convicted of any of these offences, court may grant bail to D if exceptional circumstances apply

Question 14

Who bears the burden of evidence in relation to whether bail should be granted

Answer 14

generally, prosecution bears burden of persuading court why normal right to bail should be withheld

however, where the D has been charged or previously convicted of a serious offence eg. murder, rape, burden on D to persuade the court why they should be granted bail

Question 15

Which court usually grants bail

Answer 15

Magistrates Court
however, where D charged with murder, only crown court judge may grant bail (have 48 hrs to make decision whether or not to grant bail)

Question 16

When may a crown court grant bail to a D charged with murder

Answer 16

generally should not grant bail

however, can grant bail if the court thinks there is no significant risk of D committing, whilst on bail, an offence likely to cause physical or mental injury to another

Question 17

what is the ‘no real prospect of custody’ restriction?

Answer 17

magistrates court will not have power to remand a D in custody before his case is dealt with in the following circumstances;

(a) the defendant has attained the age of 18;

(b) the defendant has not been convicted of an offence in those proceedings; and

(c) 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 18

What is the most common ground for refusing bail and what is the threshold for this ground

Answer 18

where court believes there are substantial grounds for believing D, if released on bail will;
- fail to surrender to custody
- commit an offence whilst on bail
- interfere with a witness in the case or otherwise obstruct the course of justice
(para 2(1) ground)

high threshold, not satisfied if court thinks D MAY do these things

Question 19

what are the factors the court must consider when deciding whether a para 2(1) ground for refusing bail is satisfied

Answer 19

(a) the nature and seriousness of the offence (and the probable sentence the defendant will receive for it);

eg more serious offence with more serious sentence = more likely to fail to surrender to custody

(b) the character, antecedents, associations and community ties of the defendant;

eg. more previous offences = more likely D will offend again

eg. association with other criminals means more likely to offence again

eg. if witness lives with D, less likely to be granted bail as D may intimidate witness

eg. no community ties may mean no reason not to abscond

(c) the defendant’s record in respect of previous grants of bail in criminal proceedings; and

eg. if breaching conditions of ail previously, more likely to do again

(d) the strength of the evidence against the defendant

eg. strength of evidence may mean more likely for conviction to occur, more likely D will try to abscond from custod

Question 20

when may bail be refused in relation to non imprisonable offences

Answer 20

extremely rare for bail to be refused in these circumstances

only may be refused if;
- D previously failed to answer to bail in past criminal proceedings and court thinks D would fail to surrender to custody here

• if D needs to be kept in custody for their own protection
• if D currently serving custodial sentence in respect of separate offence
• D previously granted bail in THESE proceedings and failed to answer, and court thinks substantial grounds D would abscond, commit offence, interfere with witnesses or obstruct course of justice

Question 21

when may a court grant conditional bail

Answer 21

where conditions are necessary to;

(a) prevent the defendant from absconding;

(b) prevent the defendant committing a further offence whilst on bail;

(c) prevent the defendant interfering with witnesses or obstructing the course of justice;

(d) ensure that the defendant makes himself available for the purpose of obtaining medical or other reports;

(e) ensure that the defendant keeps an appointment with his solicitor; or

(f) ensure the defendant’s own protection or, in the case of a defendant aged under 18, for his own welfare or in his own interests.

Question 22

What should defence solicitor do if the court refuses to grant unconditional bail

Answer 22

try and persuade the court that conditional bail should be granted

Question 23

What are the most common conditions the court may impose in relation to bail

Answer 23

• surety
• security
• reporting to a police station
• remaining at specified residence
• curfew; remain at place of residence at specific times
• non communication with prosecution witnesses
• restriction on entering specified areas
• attending appointments with solicitor or probation service
• surrender of passport

Question 24

How to decide whether a D will be granted bail

Answer 24

insert picture

Question 25

what are the conditions attached to conditional bail designed to prevent

Answer 25

preventing D from; - failing to surrender to custody - committing an offence whilst on bail - interfere with witnesses/obstruct course of justice

Question 26

what is the procedure for applying for bail where the CPS objects to bail being granted

Answer 26

- CPS must provide D's solicitor and court with all information it has relevant to court's decision about bail ASAP - CPS must state objection to bail and apply for D to be remanded in custody at magistrates court, using facts of the case, relevant factors such as previous convictions, character etc. - D's solicitor makes an application for bail on client's behalf. Should respond to all CPS objections and evidence and suggest appropriate conditions if magistrates will not approve unconditional bail - magistrates hear evidence from other persons called by defence in support of D's application for bail eg. someone offering them accommodation, employer - magistrates decide whether to remand D on bail or in custody. If conditional bail granted, conditions will be specified

Question 27

is D's solicitor permitted to make a full bail application at hearings following the initial hearing where bail was refused

Answer 27

D's solicitor can make another full application for bail at the first hearing after the hearing at which court refused to grant bail however, D's solicitor not permitted to make a full bail application at each subsequent hearing at subsequent hearings, can only submit a full application if defence makes arguments as to facts or law which the court has not already heard (ie. new facts or legal arguments emerge) NB. if case committed to crown court for subsequent hearings, further applications for bail must be heard in crown court, not magistrates court

Question 28

what is the magistrates' duty to consider bail in relation to subsequent hearings

Answer 28

if D is still in custody, magistrates under a duty to consider bail and presumption in favour of bail still applies however, D's solicitor not permitted to make a full bail application at each subsequent hearing, only first hearing after hearing at which bail was initially refused

Question 29

what is D's right of appeal against a refusal of bail

Answer 29

where D refused bail by magistrates court, can appeal this at crown court solicitor will usually wait until magistrates have refused bail twice on the full application before appealing decision to crown court this gives max amount of chances to apply for bail

Question 30

how can D's solicitor appeal a magistrate's court decision to refuse bail

Answer 30

- complete notice of application ASAP after magistrates' court decision - notice must be served on crown court and CPS - notice must specify decision D wants crown court to make eg. grant bail or vary bail condition and each offence D has been charged with - notice should also explain why crown court should grant bail (arguments of fact and law) and explain any further information or legal argument that has come to light, if any, since magistrates' court decision - should also set out any suggested condition to bail

Question 31

if prosecution oppose an appeal for refusal of bail or varying of bail conditions, what should they do

Answer 31

immediately notify crown court and defence of reasons they oppose the appeal

Question 32

when should an appeal for bail be heard

Answer 32

ASAP, and not later than the business day after it is served however, crown court can vary these time limits

Question 33

what documents must the crown court judge consider when deciding whether to accept or refuse an appeal of bail

Answer 33

- notice of application submitted by D's solicitor - certificate of full argument obtained from magistrates court and issued after hearings for bail - record of D's previous convictions if applicable

Question 34

can the prosecution appeal a magistrates' decision to grant bail to a D

Answer 34

yes, can appeal the magistrate's decision in the crown court requirements (time limits); - oral notice of appeal must be given by prosecutor at the end of hearing during which court granted bail, and before D is released - notice must be confirmed in writing and served on D no more than 2 hrs after telling court of decision to appeal - crown court must hear appeal ASAP and not later than 2 business days after appeal notice is served - if appeal occurs, D remanded in custody until appeal is heard - this power of appeal should not be used by prosecutors just because they disagree with the decision, should only be used in cases of grave concern

Question 35

what happens if a D remanded on bail fails to attend court to answer their bail

Answer 35

magistrates will issue warrant for their arrest with or without bail warrant will either be backed with bail (where police will arrest D after hearing pending their next court appearance) or not backed with bail (more common); if this is the case, police must arrest D then keep them in police custody until they can be brought before the court note; D arrested on Friday after court has finished sitting will be seen on Saturday morning. If arrested later on Saturday, D will be kept in custody until following Monday morning

Question 36

what is a remand court

Answer 36

hearing where D who has failed to answer police bail and has been arrested will appear may be charged with the offence of failing to surrender to custody if the CPS so decides if D fails to answer court bail, same applies, but will be court's decision whether to charge them with failing to surrender, not CPS

Question 37

which offences can a D be charged with for failing to answer bail

Answer 37

- where D fails to surrender to custody without reasonable cause, guilty of the offence of absconding eg. if D is late to hearing without reasonable cause - where D fails to surrender to custody with reasonable cause, they will still be guilty for absconding unless they surrender to custody as soon as it is reasonably practicable eg. where D injured and in hospital so cannot answer bail = reasonable cause, but must answer bail as soon as they are discharged if they do not wish to be charged with absconding

Question 38

when is a court likely to make a further grant of bail to D after D fails to surrender to custody

Answer 38

if the D's failure to surrender was due to a genuine misunderstanding, or if D voluntarily surrenders to custody unlikely to be granted bail again if D wilfully failed to surrender and had to be arrested by police

Question 39

what happens if a D breaches a condition of their bail

Answer 39

not a criminal offence but, likely to have bail reviewed by magistrates, who may decide that failure to comply with conditions requires remand in custody

Question 40

how will magistrates determine how to treat a D arrested under s7(3) bail act

Answer 40

2 stage approach; - magistrates determine if there has been a breach (in practice, D will usually admit) - if magistrates determine there has been a breach, they will decide whether D should be remanded in custody or on bail pending next hearing - if breach was as a result of genuine mistake, magistrates may decide to make a grant of further bail, subject to more stringent conditions