Bail Flashcards
(32 cards)
What is the difference between an adjournment and a remand in criminal proceedings?
- An adjournment refers to postponing the case because it cannot be concluded in one hearing.
- A remand refers to the position of the defendant — i.e., the defendant is sent away and ordered to return on a later date. Remand may be in custody or on bail.
Who applies for a defendant to be remanded into custody, and how is it done?
The prosecution applies for a remand into custody by presenting objections to bail.
This is necessary because of the presumption in favour of bail
Why are the objections to bail more limited for less serious offences?
To avoid the risk that a defendant might spend longer in custody awaiting trial than they would receive as part of their sentence. The law balances fairness by limiting objections for trivial offences.
Who applies for bail, and when is the first decision made?
- The defence applies for bail once the prosecution has objected.
- All cases start in the magistrates’ court, which makes the first bail decision (except for murder, which only the Crown Court can consider).
- Either party can appeal a bail decision from the magistrates’ court.
Can bail be subject to conditions, and is bail reconsidered during proceedings?
Yes.
- Bail can be granted with conditions to address the court’s concerns.
- Bail is an ongoing issue, and the court can reconsider it at any stage — for instance, if the defendant breaches bail conditions.
What is the presumption in favour of bail and its statutory basis?
There is a presumption that a defendant is entitled to bail. The prosecution must rebut this by successfully raising a legally recognised ground for objection.
Does the presumption in favour of bail apply after conviction or for community order breaches?
Yes.
- The right to bail continues after conviction when a case is adjourned for pre-sentence reports.
- It also applies when a person is alleged to have breached a community order.
When does the right to bail not apply under the Bail Act 1976?
The right to bail does not apply to:
(a) Appeals against conviction or sentence
(b) Defendants being committed for sentence from magistrates’ to Crown Court
In these cases, bail may still be granted, but the presumption does not apply.
What are the three core (‘big three’) grounds for objecting to bail in indictable cases?
There must be substantial grounds for believing that the defendant, if released on bail, would:
(a) Fail to surrender to custody
(b) Commit further offences while on bail
(c) Interfere with witnesses or otherwise obstruct the course of justice
How is the test of ‘substantial grounds for believing’ interpreted by the court?
It does not require proof or probability that the behaviour will occur, only that the fears of it have substance and merit.
The enquiry is factual, with no formal rules of evidence.
Hearsay is permitted, and the court adopts an inquisitorial role.
What is the ‘no real prospect’ rule in relation to bail objections?
If the defendant is charged with an offence where there is no real prospect of a custodial sentence, then the court cannot refuse bail on the basis of the ‘big three’ grounds, even for indictable offences.
What triggers the availability of the ‘big three’ grounds for summary imprisonable offences?
These grounds are only available if:
- The defendant breaches a condition of bail; or
- The defendant has a previous conviction for failing to surrender.
When might the objections to bail become available for summary non-imprisonable offences?
Only when:
- The defendant has been convicted in the current proceedings; and
- There has been a breach of bail conditions leading to arrest
What are the ‘need not be granted bail’ grounds that are widely applicable?
Bail need not be granted if:
(a) Custody is needed for the defendant’s own protection
(b) The court has insufficient information to make a bail decision
(c) The defendant is already serving a custodial sentence
What is a common objection ground in domestic violence cases?
If there are substantial grounds to believe that the defendant would commit an offence causing physical or mental injury to an associated person (e.g. spouse, partner, family member), bail need not be granted.
What is the test where Class A drug abuse is involved in the offence?
If:
(i) The defendant tests positive for a Class A drug; and
(ii) The offence is related to or motivated by Class A drugs;
Then the court may not grant bail unless there is no significant risk of committing an offence on bail.
What happens if the defendant was on bail at the time of committing a new offence?
- For an indictable offence, the court need not grant bail.
- For a summary imprisonable offence, bail need not be granted if there are substantial grounds for believing the defendant would commit further offences.
What happens if the defendant absconds while on bail for an indictable offence?
Bail need not be granted again, unless:
- The offence is pre-conviction, and
- There is no real prospect of the defendant receiving a custodial sentence.
What are the four key factors the court must consider when assessing the ‘big three’ grounds?
(a) Nature and seriousness of the offence and likely sentence
(b) Character, antecedents, associations and community ties
(c) Past bail record — especially previous failures to surrender or commit offences on bail
(d) Strength of the evidence
What is the difference between a ground and a factor in bail decisions?
- A ground is a legal reason for denying bail (e.g. risk of absconding).
- A factor is a consideration that supports a ground (e.g. seriousness of offence).
Courts must refuse bail on a ground, not just a factor.
What is the legal duty of a person granted bail?
To surrender to custody by attending court at the time and date specified.
What must the court consider before imposing a condition of bail?
Each condition must be:
- Relevant to the risks posed
- Proportionate to the need
- Enforceable
What are common bail conditions and their purposes?
- Residence requirement: ensures contact and reduces absconding risk
- Curfew: reduces risk of further offences (e.g. for night-time offences)
- Police reporting: confirms presence in jurisdiction
- Surety: financial incentive offered by third party to secure attendance
- Security: financial pledge from D or another (must be deposited)
- Exclusion zones: prevents contact with certain areas or people
- Non-contact: prevents interference with witnesses or co-defendants
- Tagging: monitors compliance with curfews
- Bail hostel residence: supervision for D without fixed address
- Passport surrender: prevents absconding abroad
What is the difference between a surety and a security in bail conditions?
- A surety is a promise by a third party to pay if D absconds
- A security is a physical deposit of money or valuables by D or another
