Bail and remands - syllabus area 3 Flashcards
1
Q
when may a magistrates’ court adjourn the proceedings?
A
at any stage before the case is sent to the CC for trial or before (or during) a summary trial - D5.22
2
Q
How can one challenge the grant or refusal of an adjournment?
A
by way of judicial review - D5.27
3
Q
what must the court do when adjourning the the trial?
A
the court may fix the time and place at which the trial is to be resumed, or unless it remands the accused, leave the time and place to be determined later by the court - D5.29
4
Q
In what two ways can the magistrates’ court remand a person?
A
they can remand in custody or remand on bail in accordance with the Ba 1976 - D5.30
5
Q
on adjourning the proceedings for an either way offence the court must remand the accused in custody or bail unless what?
A
unless the accused first appeared in answer to a summons or requisition (as opposed to being brought before the court in custody or appearing in answer to police bail) and has not been remanded at an earlier hearing - D5.30
6
Q
Magistrates may exercise their discretion and adjourn without remanding the accused in what circumstances?
A
- at all summary offences up to conviction; and at appearances for either way offences up to either a determination for trial on indictment or summary conviction, provided the accused:
first appeared in answer to a summons or requisition (as opposed to being brought before the court in custody or appearing in answer to police bail) and has not been remanded at an earlier hearing - D5.30
7
Q
Does an accused commit an offence if they are not remanded and they fail to appear on the date to which the case is adjourned?
A
they commit no offence, but it may be possible either for an arrest warrant to be issued or for the proceedings to be conducted in the absence of the accused D5.30
8
Q
Does an accused who is remanded on bail and fails to surrender to custody commit an offence?
A
yes, an accused who fails without reasonable cause to surrender to custody commits an offence under the BA 1976 - D5.30
9
Q
What is the maximum period for which a magistrates’ court may remand an accused in custody?
A
eight clear days - D5.30
10
Q
A person who is brought before the court may be remanded again. true or false?
A
true - D5.32
There may be several remand hearings before a case is sent to the CC or the commencement of summary trial.
11
Q
what limits the number of remands that can be given?
A
the only limit on the number is the general discretion of the magistrates to refuse an adjournment if it would be against the interests of justice - D5.32
12
Q
what other power does the court remanding an accused have?
A
the court remanding an accused may order that for subsequent remands, the accused be brought before a different magistrates’ court nearer to the prison where the accused in confined on remand - D5.32
13
Q
when can the accused be remanded for a period longer than eight clear days?
A
if the remand is on bail and both the accused and prosecution agree to a longer period of remand - D5.36
14
Q
Maximum period an accused charged with an indictable offence may be held in the magistrates’ custody between first appearance and committal proceedings?
A
70 days D15.9
15
Q
Maximum period between first appearance and summary trial (if the offence is triable either way and the court is to try the case summarily) ?
A
70 days
unless the decision for summary trial is taken within 56 days, then it reduces to 56 days - D15.9
16
Q
Maximum period of remand for summary trial?
A
56 days -D15.9
17
Q
maximum period between committal and trial on indictment?
A
112 days - B15.9
18
Q
Maximum period of remand for multiple committals ?
A
112 days separately in respect of each offence
19
Q
where sent for trial under the CDA 1998, s.51, what is the maximum period?
A
182 days between the date the accused is sent for trial to CC and the start of trial
from the maximum, the court must deduct any period during which the accused was in custody by the magistrates - D15.9
20
Q
maximum limit for retrial directed by the court of appeal?
A
112 days from the date of preferment by the court of appeal
21
Q
time limit where proceedings are by way of voluntary bill?
A
112 says from the date of preferment of the bill - D15.9
22
Q
what happens in a custody time limit expires before completion of the stage of proceedings in question?
A
the accused must be granted bail , in relation to the offence the time limit relates. - D15.18
where the CC is notified that the 112 day limit is about to expire, the accused must be bailed as from the expiry of the time limit, subject to a duty to attend for trial
the regulations do not expressly deal with the procedure for bailing an accused who has the benefit of the 70 day limit
23
Q
where may the crown court or the magistrates extend the limit?
A
if satisfied that:
- prosecution has acted with all due diligence and expedition
- and that there is a good and sufficient cause for doing so - D15.33
an extended time limit may be further extended
24
Q
when should extension for time limit be addressed?
A
at the time the trial date is fixed - D15.33
25
Asides from magistrates' power to grant bail of adjournment, when can bail be granted?
for the period of remand for reports ie after summary conviction - D7.2
26
can a person charged with murder be granted bail?
only by order of a Crown Court judge - D7.2
27
A person charged with murder in the magistrates court must be committed to the crown court, true or false?
True. A crown court judge must then make a decision about bail as soon as reasonably practicable , and in any event within 48 hours, beginning with the day after the day on which the person appears before the magistrates court - D7.4
28
Who are those who have a rebuttable presumption in favour of bail?
those who appear before the CC or magistrates' court in the course of or in connection with proceedings for an offence, or applies to the court for bail
- those who have been convicted of and offence and their case is adjourned for reports before sentencing
- those who have been brought before the court under the SA 2020, sth 10, for alleged breach of a requirement of a community order - D7.6
29
Can an accused pending appeal against conviction and/or sentence rely on the bail presumption?
no, neither can an accused committed to the CC for sentence following conviction from the magistrates court.
they may be granted bail but at the discretion of the court - D7.7
30
what happens when a person who had been on bail pleads guilty at the plea before venue hearing?
the usual practice should be to continue on bail, even if it is anticipated a custodial sentence will be imposed. - D7.7
unless there is a good reason to remand in custody, bail continues.
31
would the court grant bail if there is a previous conviction for murder, attempted murder, manslaughter, rape, attempted rape or other offences under the SOA 2003?
No, the court would not grant bail, except it is of the opinion that there are exceptional circumstances which justify it -D7.8
32
An accused charged with murder will not be granted bail unless what?
unless the court is of the opinion that there is no significant risk that the accused will if released on bail, commit an offence that would be likely to cause physical injury or mental injury to any other person - D7.11
33
in what circumstances can the court deny bail to an unconverted accused charged with an imprisonable offence and triable on indictment?
if the court is satisfied that there are substantial grounds for believing that the defendant, if released on bail (whether subject to conditions or not) would:
fail to surrender to custody or
commit an offence while on bail or
interfere with witnesses or otherwise obstruct the course of justice, whether in relation to himself or any other person - D7.13
34
The rules in relation to risk of absconding which permits the court to deny bail does not apply where?
when the accused is 18, has not been convicted of an offence in those proceedings, and it appeals to the court that there is no real prospect of custodial sentence in the proceedings - bail cannot be withheld on any of the previously mentioned grounds - D7.16
35
what factors should the courts consider before deciding whether to refuse?
- the nature and seriousness of the offence and the probable method of dealing with the offender for it
- the character, antecedents, associations and community ties of the accused
- the accused's record for having answered bail in the past
- the strength of the evidence against the accused
if the court is satisfied that there are substantial grounds for believing that the accused would commit an offence while on bail, the risk that the accused may engage in conduct likely to cause physical or mental injury to anyone else - D7.17
36
What are other grounds for withholding bail?
risk of injury to an associated person, where the accused is already on bail for another offence, for the accused's own protection, where the accused is already serving a custodial sentence for another offence, where the court has insufficient information, where the accused has absconded in the present proceedings, where the accused is charged with murder - D7.24
37
Where the accused is 18 or over, they may not be granted bail in relation to abuse of drugs offences in three circumstances:
- there is drug test evidence through lawful testing that there are class A drugs in the person's body
- the accused is charged with an offence under the Misuse of Drugs Act 1971 and the offence relates to a class A drug, or the court is satisfied that misuse of drugs contributed to the offence the accused was charged
- the person does not agree to undergo assessment (carried out by a qualified person) of dependency or propensity to misuse drugs. Or has carried out an assessment but refused to undergo a relevant follow up which has been offered - D7.31
38
Failure to surrender to custody, committing offences while on bail and accused arrested on substantial grounds for believing they would fail to custody, do not apply when?
where the accused has attained the age of 18, and has not been convicted of an offence in the proceedings and there is no prospect of a custodial sentence - D7.36
39
What grounds do not apply to where the offences are non-imprisonable?
- risk of absconding and insufficient time to get information -D7.37
40
A person granted bail in criminal proceedings is under what duty?
to surrender to custody - D7.45
Failure to surrender without reasonable cause is an offence under the BA 1976, s6
41
does the accused have to act as his or her surety?
no, they may be required to provide other people to stand surety, or may be required to give security for his or her surrender to custody - D7.46
42
Are justices obliged to have substantial grounds for believing that repetition of the accused's conduct would occur?
they are not obliged, but it is enough that they perceive a real risk of that happening - D7.48
43
What must a prosecution who wants to impose conditions do?
specify the conditions and explain what purpose it would serve - D7.49
44
what condition is normally combined with a curfew condition?
electronic monitoring (also known as tagging) - D7.51
45
what is the only purpose a surety can be sought?
only for the purpose of securing surrender to custody, no other purpose - D7.55
one or more sureties should be required only in cases where there appears to be a risk of absconding
46
a person cannot stand as surety for him or herself. But persons granted bail may be required to give security for their surrender to custody. when is this required?
as with surety, security may be required as a condition for bail only if it os necessary to prevent absconding - D7.60
47
What happens if a person who gives security absconds?
unless there appears to have been a reasonable cause for the failure to surrender to custody, the court may order forfeiture of the security - D7.60
48
Can a third party make an asset available for the accused to use as security?
yes - however it is the accused who gives the security, the arrangements between the third party and the accused are not a matter for the court. - D7.60
there is no obligation for the third party to be informed before the security is forfeited on the accused's non attendance
49
where bail is granted can the accused apply for the conditions to be varied?
yes - D7.65
50
Where should application to vary the conditions be made?
to the court which granted bail, or if the accused has been sent to the crown court for trial or committed to the crown court for sentence, then the crown court - D7.65
51
What type of application can prosecution make in relation to bail?
application for either existing conditions to be varied, or where unconditional bail is granted, for conditions to be imposed - D7.65
52
What must a party who intends to apply for a variation to bail conditions do?
give notice in advance to the court and to the other party explaining what is sought and why - D7.65
The application must be served not less than two business days before any hearing that the applicant wants the court to consider it, if one is due
53
can the court determine an application to vary the conditions without a hearing?
yes, if the variation has been agreed by the parties - D7.65
If there is a hearing, it should take place no later than the fifth business day after the application was served
54
what happens when there has been a breach of bail conditions imposed?
it may result in the accused being arrested without warrant under the BA 1976 s7(3), and bail being withdrawn - D7.66
55
When can a decision on bail be made?
when each party(and any surety directly affected by the decision) is present (in person or via) live link or has had an opportunity to make representations - D7.67
56
Can a bail decision be made in the absence of the accused?
yes, where they have waived the right to attend, or were present when bail was refused on a previous occasion and have been in custody continuously since then - D7.67
57
is a bail hearing public or private?
it may take place publicly or privately - D7.67
58
Where the presumption is in favour of bail, who bears the onus?
the onus is on the court to justify any refusal of bail - D7.67
59
What does the cps case file contain?
if there are any objections to bail and the basis of the objections - D7.68
Prosecution basis objections on the information, unless a police officer connected with the case is present in court to give further information
60
what should still happen where the defence choose not to make a bail application?
prosecution should present atleast cursory objections to bail so that the court will be able to base a refusal on one of more of the reasons - D7.68
61
Where prosecution oppose bail ,what should they do?
they are required to specify each statutory exception to the presumption in favour of bail on which they rely, and each consideration prosecution argue to be relevant -D7.68
62
Is there requirement of formal evidence to be given?
there is no requirement - D7.68
either party may however adduce evidence in support of their respective arguments. the witnesses give their evidence on the void dire form of oath, to answer truthfully all such questions as the court may ask.
63
does the prosecution apply to the application for bail by the defence?
they will not normally apply to the application for bail by the defence, however they have a right to reply to the defence submissions if this is necessary to correct alleged misstatements of facts in what the defence said - D7.68
64
An accused remanded in custody may make a fully argued application at the next hearing , regardless of if it repeats the same arguments. When does this hearing take place?
unless the accused consents to being remanded while absent, the next hearing will take place within eight Clear days- D7.70
65
where the second appearance application fails, what happens?
the court need not hear arguments on fact or law which it heard previously - new arguments - D7.70
66
What happens when the magistrates' court adjourns a case and remands the accused in custody after hearing a fully-argued bail application?
the court must issue a certificate confirming that full argument was heard - D7.78
67
What happens when there is a bail argument on the basis of change in circumstances or new considerations?
the magistrates must issue a certificate of full argument which must state what the change was - D7.78
The accused must be given a copy of the certificate
68
what is the significance of the court issuing a certificate after hearing a bail application?
the right to apply to the crown court for bail is dependent on it -D7.78
the obligation to issue a certificate while the accused is in remand may arise at any time
69
where the magistrates has refused bail to an accused, where may they apply to?
the crown court - D7.80
an appeal can also be made against a decision of magistrates' court to impose conditions on bail
70
what must happen when an accused wants to apply to the crown court for bail?
written notice of the intention must be given before the magistrates' court, the crown court, the prosecutor(and any surety affected or proposed) as soon as practicable after the decision - D7.83
71
What must the notice of application to the crown court contain?
it must explain why bail shouldn't be withheld, or why the condition of bail under appeal should be varied , it should identify any further information or legal argument that has become available since the magistrates' decision. if it is an application for bail, it should attach a copy of the certificate that the magistrature heard full argument as to bail
72
what happens if prosecution oppose the application to the crown court for bail?
they must notify the CC and accused and must serve notice of reasons opposing the application - D7.83
73
When should the crown court hear applications?
no later than the business day after the notice of application or appeal was served - D7.83
74
are bail applications public or private?
they are both, but usually heard in private - D7.84
The application will be heard by a circuit judge or recorder (in the CC)
75
what may the cc do if they grant bail?
direct that the accused appear at a time and place which the magistrates' court could have directed - D7.84
76
Can a further application be made to the CC if one has been already made?
no, unless there are fresh arguments or considerations to put before the court - D7.86
77
what right does prosecution have in relation to appeal?
prosecution has the right to appeal to Crown Court against magistrates court’s decision to grant bail
prosecution has the right to appeal to the High court when the CC grants bail other than in the context of appeal against grant of bail by magistrates - D7.92
78
What cases can prosecution appeal?
1) Prosecution must have opposed bail originally
I.E. @ first hearing
2) Offence must be punishable by imprisonment - D7.92
79
How does prosecution exercise their right to appeal in bail proceedings?
First they give oral notice of appeal at the conclusion of the proceedings in which bail was granted, and before the accused is released from custody. (notice can be given to the court officer) - D7.93
following the oral notice, the accused must remain in custody until the appeal is determined or disposed of
80
What else must prosecution do after giving oral notice for appealing bail?
they must confirm the oral notice in writing, serve on the court and the accused within two hours after the conclusion of the proceedings.
otherwise the appeal is deemed to be disposed of and the accused will be released on bail on the terms granted by the court
81
where prosecution is late in serving written notice, will the courts still approve?
yes, if it was outside the prosecution's control - D7.93
82
When must the appeal by prosecution be heard?
within 48 hours upon which the oral notice is given, excluding weekends and holidays -D7.93
83
What are the court's powers where an accused on bail fails to surrender to custody in answer to bail?
* 1. Magistrates’/Crown Court may issue warrant for D’s arrest (Bench warrant)
* P applies for the warrant, or court does it on its own volition
* Usual form of warrant simply orders the arrest of the accused and that he be brought to court.
* 2. Magistrates’ court may adjourn and extend accused’s bail // Crown Court may order that the case be stood out of the list and take no further action in respect of the accused (who will remain under an obligation to attend whenever the case is next listed)
* =\> Appropriate only where the court is satisfied that there is a **good reason** for the accused's non-attendance
* I.E. Medical report for illness
* 3. May be possible to proceed in the absence of the accused;
* _However_, if offence is triable either-way, magistrates may summarily try the case only with the consent of the accused. the consent must be given at a hearing which the accused is present, unless the court is satisfied there is good reason for absence and the accused is represented by a lawyer who consents to summary trial on behalf of the accused - D7.98
84
when may a police officer arrest an accused on bail without a warrant?
* 1. Officer has reasonable grounds for believing that he is not likely to surrender to custody; or
* 2. Officer has reasonable grounds for believing that he has broken, or is likely to break, any condition of his bail; or
* Re: ‘likely to break’, esp relevant wrt curfew condition
* 3. Surety has given written notice to the police that the person bailed is unlikely to surrender to custody and for that reason the surety wishes to be relieved of his obligations - D7.102
85
when must a person on bail arrested by the police (without a warrant) be brought before the court?
* D will then be brought before a magistrates’ court _as soon as practicable_. In any event, _within 24 hours_.
* \*Unless arrested on a Saturday
* =\> Brought before a single justice
86
who must the arrested person be brought before?
a justice of the peace (single justice)- D7.102
the justice need not be sitting in a courtroom
87
what court should the accused be brought to when arrested?
the court at which surrender to custody should have taken place - D7.102
88
What happens were an accused breaches conditional bail?
the jurisdiction to deal with the accused must be exercised by a magistrate. there is no power to commit the accused to the CC - D7.103
magistrate may find there is no breach and the accused will remain on bail
magistrates may find there has been a breach and impose more stringent conditions or allow bail as before
magistrates may find there has indeed been a breach and remand the accused till trial fixed date
89
what must the magistrates decide when a person is brought under the Bail Act, s.7?
whether they are likely to fail to surrender to custody, or else has broken or is likely to break any condition of bail.
if any is establisher, they may remand the person in custody or impose more onerous conditions - D7.104
90
Does the magistrates' court need to hear evidence when a person is brought to them under the Bail Act?
no. the court can simply base its decision off representations from the prosecution and defence. - D7.105
91
what is the test the magistrates' use to consider whether a person who fails to surrender has a reasonable excuse?
* 1. Has there been a breach of a condition?
* Justice must act fairly and give D chance to answer accusations ag him.
* Actual, or potential, breach!
* 2. If there has been a breach, consider whether or not D should be granted bail again
* Reasons for the breach of bail become relevant
* Must consider all issues relating to ‘**reasonable excuse**’
* \*Court does not need to hear evidence. Decision can be based on representations from P and D. - D7.105
92
However, if D is in breach, or is about to be so, of his bail, is it a separate offence?
it is not a separate offence - D7.108
93
a person who is released on bail and fails without reasonable cause to surrender to custody is guilty of what offence?
absconding - D7.110
The burden of showing reasonable cause is on the accused
94
a person with reasonable cause for failing to surrender should surrender when?
failing to surrender as soon after the appointed - D7.110
95
an offence for failure to surrender is punished how?
on summary conviction or as if it were a criminal contempt of court - D7.111
96
An offender summarily convicted of an offence under s6 BA 1976 is liable to imprisonment for up to how long?
three months and/or a fine of any amount - D7.111
97
How else can magistrates deal with a s6 offender?
commit them to the CC for sentence if the offence merits greater punishment than it has power to inflict. or it is sending the offender to the CC for trial of another offence and considers the CC should deal with the absonding - D7.111
98
An offender sent to the crown court is guilty of what?
criminal contempt and is liable for up to 12 months imprisonment and/or an unlimited fine - D7.111
99
what is the procedure for prosecuting ‘absconding?’
* 1. D brought, as soon as appropriate after arrest, before court
* No requirement to apply for summons or issue written charge + requisition
* 2. Court initiates proceedings, or P invites court to take proceedings
* If former, P expected to assist the court, i.e. cross-examine the accused
* 3. In practice, court asks D/his legal rep the reason for his non-appearance
* If it seems satisfactory, bench indicates no further action
* If not, clerk puts the charge to D
* 4. If charge is put, court will ask if D pleads guilty or not guilty
* P and D will make representations
* 5. Court will come to its own decision there and then
