Bail and Remands

Question 1

When can the magistrates adjourn a case?

Answer 1

Any time - as long as it hasn’t been sent to the Crown Court

Question 2

What is the test for adjournment

Answer 2

Its an exercise in discretion under the overriding objective

Question 3

How can an adjournment be challenged?

Answer 3

By JR

Question 4

If a case is adjourned by the Magistrates, what happens to the accused ?

Answer 4

Remand or bail

Question 5

Maximum time a magistrate can remand in custody?

Answer 5

8 clear days

Unless the parties agree to a longer remand

Question 6

Is there a limit on the number of times a remand of 8 clear days is given?

Answer 6

No - the limit is the discretion of the magistrates to refuse

Question 7

In a trial by indictment, what is the remand time limit between first appearance and committal (in mags)?

Answer 7

70 Days

Question 8

In a trial by indictment, what is the remand time limit between first appearance and summary trial (if E/W)

Answer 8

70 days

Unless the decision for summary trial was taken within 56 days. It then reduces to 56 days.

Question 9

In a trial by indictment, what is the remand time limit between committal and trial on indictment

Answer 9

112 days

(applies separately to each offence if committed for multiple offences)

Question 10

In a trial by indictment, what is the remand time limit between date on which accused is sent to the Crown Court and the start of the trial

Answer 10

182 days

Question 11

In a trial by indictment, what is the remand time limit between an order for retrial from the CoA and the retrial

Answer 11

112 days

Question 12

If a timelimit for remand in a trial by indictment expires what are the options?

Answer 12

Court can extend, but must be satisfied that the prosecution has acted with due diligence and expedience AND there is a good and sufficient cause for doing so

Or, if no extension, must be released on bail

Question 13

Who can the magistrates grant bail to?

Answer 13

Everyone, except someone accused of murder

Question 14

When can the magistrates grant bail?

Answer 14

At any stage of proceedings including:

• Preliminary Stages
• For Reports after Conviction
• After Committal and before sentencing
• after conviction pending appeal

Question 15

Who can the crown court grant bail to?

Answer 15

Anyone

Question 16

When can the crown court grant bail?

Answer 16

• When someone has been sent in custody for trial in the crown court
• When someone has been found guilty in mags and is appealing
• where someone is in custody of the crown court
• When someone is appealing to the court of appeal

Question 17

What is the procedure for bail when someone is accused of murder?

Answer 17

Mags cannot grant bail.

Must be sent to crown court for a bail hearing within 48 hours beginning the day after they appeared in the mags

Question 18

Does the accused have the right to make repeated bail applications?

Answer 18

Yes. But;

Magistrates:
WIll hear two bail apps but afterward will refuse unless there are new arguments

Crown:
Will not hear a fresh bail app unless there are fresh arguments after one is fully argued.

Question 19

Can a bail decision be appealed?

Answer 19

Yes.
From Mags to Crown
From Crown to High Court

Question 20

What is the procedure for appealing a bail decision?

Answer 20

After a bail hearing is heard, and the court remands in custody, a certificate will be issued to that effect. It is this which the defence will appeal.

If the prosecution are appealing the granting of bail then the prosecutor should give oral notice immediately after bail is granted and before the accused is released.
Accused is then remanded in custody until appeal is disposed of.
Oral notice should be confirmed in 2 hours.
Appeal should be heard in 48 hours.

Question 21

Under what circumstances can the prosecution appeal against bail having been given

Answer 21

Cases where:

• Offence is punishable by imprisonment
• prosecution is conducted by DPP or a prosecutor specified in the Bail (Amendment) Act 1993
• Before bail was granted, the prosecution argued it should not be

Question 22

What is the relevance of s.4(1) Bail Act 1976

Answer 22

It contains the rebuttable presumption in favour of bail

Question 23

Who does the rebuttable presumption in favour of bail apply to?

Answer 23

Anyone before the Mags or Crown Court in the course of proceedings for an offence
Anyone who has been convicted of an offence and the case is adjourned for reports before sentencing
Anyone who has been brought before the courts under SA 2020 for an alleged breach of a community order

Question 24

What are the exceptions to the rebuttable presumption ?

Answer 24

Murder, Manslaughter, Rape, Attempted Rape, Offences under SOA 2003 if they have previous convictions.

Does not apply to police bail.

Question 25

What is the test for bail if charged with murder?

Answer 25

Court must be satisfied that there is no significant risk that you will commit an offence that would or was likely to cause physical or mental injury to any other person

Question 26

What is the test for bail for an indictable offence?

Answer 26

Bail can be refused if there are substantial grounds for believing that the accused will: - Fail to surrender to custody - Commit and offence while on bail - Interfere with a witness or otherwise obstruct the course of justice

Question 27

What factors should be considered when choosing whether to give bail for an indictable offence?

Answer 27

Nature and seriousness of the offence (the more serious, the more likely to abscond) Character, antecedents, associations and community ties (looks at previous convictions, family ties, friends, what is keeping them here) Record of answering bail before Strength of evidence (if very strong, very likely to abscond) Whether the court thinks they will commit another offence that will cause physical or mental injury to another Whether you were already on bail (if on bail, you may lose your right) Risk to an associated person (relevant for DV cases) Own protection Already in prison, not on remand (won't therefore grant bail)

Question 28

Can bail be refused if there is no chance of a custodial sentence

Answer 28

No

Question 29

Bail in drug cases - special rule

Answer 29

Court may not grant bail unless the court is convinced that there is no significant risk of the accused committing an offence while on bail where three conditions apply: 1) There is drug test evidence that there is a class A drug in their body 2) they are accused of an offence under the Misuse of Drugs Act 1971 rellating to class A drugs, or the court is satisfied that the Class A drug contributed to or motivated the offence charged 3) the accused has refused to undergo an assessment of dependency or having undergone an assessment refuses follow up This will reverse the presumption. A condition of bail will be the follow up/assessment if granted.

Question 30

What are the exceptions to the presumption of bail for a summary imprisonable offence

Answer 30

If; previously granted bail and has absconded, if the court considers they would fail to surrender on bail at the date of the offence and the court is satisfied that there is substantial grounds for believing that the accused would commit an offence on bail again substantial grounds for believing the accused would harm an associated person own protection already serving a custodial sentence arrested for absconding bail or breaking bail conditions and there are substantial grounds for believing that the accused would fail to surrender, commit an offence, interfere with witnesses or obstruct the course of justice court needs more time to gather information drug conditions

Question 31

What are the exceptions to the rebuttable presumption for non-imprisonable summary offences?

Answer 31

Been on bail and has failed to surrender, and the court is of the view that they will not surrender again Own protection already serving a custodial sentence arrested for breaking bail condition or absconding (s.7) and the court is satisfied there are substantial grounds that the accused would abscond, commit an offence, interfere with witnesses or obstruct the course of justice Arrested for breaking bail condition or absconding (s.7) and the court is satisfied they would harm an associated person

Question 32

What is the one condition of unconditional bail?

Answer 32

To surrender to custody on the date and time specified

Question 33

Why does the court impose bail conditions

Answer 33

To ensure that a person: Surrenders to custody does not commit an offence on bail does not interfere with witnesses or otherwise obstruct the course of justice is available to help with inquiries or report to assist with sentencing attends an interview with a legal representative to protect the accused

Question 34

What is test for conditions to be applied to bail?

Answer 34

Necessity Real and not fanciful need

Question 35

Common bail conditions?

Answer 35

Residence Reporting Curfew Exclusion Prohibition on contact Passport surrender Tagging Sureties Security

Question 36

How are bail conditions varied?

Answer 36

Varied by making an application. This application can be agreed by the parties, otherwise there is a hearing.

Question 37

What can the court do if someone does not answer bail and fails to appear?

Answer 37

Issue a warrant for their arrest under s.7 Mags can adjourn and extend the bail Crown can make an order that the case be stood out of the list Proceed in the absence of the accused (where possible)

Question 38

Under what conditions can a police officer arrest someone on bail without a warrant before the date of surrender?

Answer 38

Reasonable grounds to believe the accused is unlikely to surrender reasonable grounds to believe that the accused has or is likely to break bail conditions surety has given written notice to the police that the person on bail is unlikely to surrender

Question 39

What happens if the police arrest someone on bail before the date of surrender?

Answer 39

Must be brought before a single magistrates in 24 hours (even if on bail from crown court) Mags will then decide whether to release on bail again, vary conditions or remand in custody The hearing is based on submissions

Question 40

Does s.7 Bail Act create a separate offence?

Answer 40

No - just gives the power to arrest

Question 41

What is the offence under s.6 Bail Act?

Answer 41

Absconding without reasonable cause Burden to show reasonable cause is on the accused If you do have reasonable cause you should surrender as soon as is practicable otherwise it is an offence

Question 42

How is the s.6 Bail Act offence punishable?

Answer 42

Summary offence = 3 months in prison or fine As criminal contempt of court in Crown = 12 months in prison or fine