criminal litigation - advocacy Flashcards
(48 cards)
bail application
Is there a right to bail i.e no exclusions
What kind of offence is the defendant charged with? This will determine the exceptions
Are any of those exceptions made out?
Can any conditions be imposed to persuade the court to grant bail
Statutory factors which the court will take into consideration when making a decision on bail:
The nature and seriousness of the offence and the probable method of dealing with the defendant for it
The defendant’s character, antecedents, associations, and community ties
The strength of evidence against the defendant (not relevant if already convicted)
The defendant’s previous record on bail
Risk of harm to any person
Any other relevant factor e.g. misuse of drugs
the right to bail
- the right to bail:
GR: A defendant charged with a criminal offence has a prima facie right to bail.
the right to bail applies to all persons subject to several exclusions and exceptions
exclusion: the circumstances wen the right to bail does not apply
exception: where the defendant need not be granted bail if there is a reason to refuse bail - dealing with grounds for refusing bail.
right to bail
general rule: a defendant charged with a criminal offence has a prima facie right to bail (i.e from the outset there is a presumption of bail).
however - there are exclusions (no right to bail) including appeals following summary conviction, committal for sentence following summary conviction and homicide or rape case (with previous convictions) and murder cases.
exception - used when dealing with the grounds for refusing bail.
exclusions to bail (presumption of bail is removed)
- appeals following summary conviction- discretionary - very unlikely to be appropriate
- committal for sentence following summary conviction - the right to bail does not exist following conviction in the magistrates court and there is no presumption in favour.
- homicde or rape cases if there is a previous conviction: the right to bail does not exist where the defendant is charged with or convicted of murder, attempted murder, manslaughter, rape or attempted rape, and has previously been convicted of any of these offences.
here: the court shall only grant bail if they are of the opinion that there are exceptional circumstances justifying the grant of bail - this restriction only applies in manslaughter cases where the previous conviction resulted in a sentence of imprisonment.
- murder cases
a further exclusion exists in respect of defendants charged with murder.
in cases of murder, bail may not be granted unless the court is satisfied that there is no significant risk that if released on bail, the defendant would commit an offence that would be likely to cause physical or mental injury to another person.
(only a crown court judge may grant bail in murder cases, magistrates do not have the power to do so).
exclusion
- appeals following summary conviction -0 discretionary - unlikely unless the appeal was very likely to succeed.
- committal for sentence following summary conviction - bail is discretionary and no presumption of bail
- murder/homicide if there is a previous conviction
- the right to bail dies not exist where the defendant is charged with, convicted of:
- murder
- attempted murder
- manslaughter
- rape
- attempted rape
bail shall only be granted if : EXCEPTIONAL CIRCUMSTANCES JUSTIFYING THE GRANT OF BAIL (previous conviction must have resulted in imprisonment).
- murder cases:
- a further exclusion exists in respect of defendants charged with murder in addition to previous convictions exclusion
- bail will only be granted for murder if the court is satisfied that there IS NO SIGNIFICANT RISK THAT IF RELEASED ON BAIL, THE DEFENDANT WOULD COMMIT AN OFFENCE THAT WOULD BE LIKELY TO CAUSE PHYSICAL OR MENTAL INJURY ON ANOTHER PERSON.
exceptions to the right to bail defined according to what type of offences?
the exceptions to the right to bail are listed in SCHEDULE 1 BAIL ACT 1976.
the exceptions are defined according to the type of offence that the defendant is charged with, in particular:
- defendants accused or convicted of indictable imprisonable offences
- defendants accused or convicted of summary only impriasnable offences
- defendants accused or convicted of non imprisonable offences
exception (schedule 1 of the bail act)
exceptions are defined according to the type of offence the defendant is charged with:
- indictable imprisonable offences
- summary only imprisonable offences
- non imprisonable offences
exceptions substantial grounds : defendants accused or convicted of indictable imprisonable offences
includes either way and indictable offences
first consideration: it appears to the court that there is no real prospect of the defendant being sentenced to a custodial sentence.
exceptions: SUBSTANTIAL GROUNDS
1. risk of absconding, further offences or interference with witnesses or otherwise obstruct the course of justice.
relatively high threshold - the court must believe there are substantial grounds for believing the defendant would fail to surrender, commit an offence, or interfere with witnesses.
defendants accused or convicted of indictable imprisonable offences
limitation: unless the limitation is met the exceptions will not apply (limitation does not apply to harm to an associated person, the defendant’s own protection, already serving a custodial sentence, or not practicable to bail).
It appears to the court that there is no real prospect of the defendant being sentenced to a custodial sentence.
Substantial grounds:
1. FAILURE TO SURRENDER TO CUSTODY
2. COMMIT AN OFFENCE WHILST ON BAIL
3. INTERFERE WITH A WITNESS OR OTHERWISE OBSTRUCTOR THE CRSE OFJUSTICE
NB: relatively high threshold, the court must be satisfied that there are SUBSTANTIAL grounds for believing the defendant would do any of the things listed. will not be me where the court believes the defendant might or may do any of those things.
exceptions: defendant accused or convicted of summary only imprisonable offences
applies in circumstances where the defendant is charged with or convicted of a summary only offence which is punishable by imprisonment
under this heading: a defendant need not be granted bail if
- they have previously been granted bail, failed to surrender or the court believes they would fall to surrender
- they were on bail on the date of the alleged offence and there are substantial grounds for believing they Ould commit an offence f released on bail
- the court is satisfied that there are substantial grounds for believing that the defendant would commit an offence on bail by engaging
statutory factors - when the court is making a decision as to bail, i.e. considering whether there are substantial ground (failure to surrender, interfering with witnesses, further offences) they MUST take into account any of the statutory factors which appear to be relevant.
contained in the bail act 1976.
- the nature and seriousness of the offence: the more serious the offence, the greater the risk of custodial sentence and greater the risk the defendant will abscond.
- the defendants character, antecedents, associations and community ties: bad character is admissible in bail hearings. community ties include familial circumstances, residence, employment and other relevant factors.
- the strength of evidence against the defendant (not relevant if already convicted): the defence may contend that the prosecution’s case its weak and thus there is no justification for refusing bail.
- the defendants previous record on bail: has the defendant previously complied with their bail conditions or obligations.
- risk of harm to any person: if the court is satisfied that there are substantial grounds for believing that the defendant, if released on bail conditionally or not would commit an offence while on bail the risk that the defendant may do so by engaging in conduct that would be likely to cause physical or mental injury to any other person.
- any other relevant factors.g. misuse of drugs.
application for determining the venue for trial
- introduction
- summarise what the case is about
- outline the stucture of the application
e.g. made on the ground that the magistrates court’s sentencing powers are adequate to deal with this offence. - culpability and harm - state the starting point and range of sentence
- aggravating and mitigating factors
- state what the likely sentence would be taking the above into account
- state that these are within the powers of the magistrates court - conclusion: reiterate what the likely sentence would be
- reiterate why the court should accept jurisdiction
end: Unless I can assist the court further, those are my submissions.
conditional bail
the court is entitled to grant bail to the defendant subject to one, or more conditions. may only be imposed when it appears necessary to the court to do so in order to:
- prevent the defendant from absconding
- to prevent them committing further offences whilst on bail
- to ensure they do not interfere with witnesses or obstruct the course of justice.
- for their own protection or
- to ensure they make themselves available to enable inquiries or a report to be made to assist the court in sentencing .
conditions:
1. surety: person who accepts that if the defendant fails to attend they will be liable t forfeit a specified sum of money. solicitor should never act as a surety.
2. security: condition that the defendant deposit money which will be forfeited if they fail to surrender.
3. residence: a condition that the defendant be required to live and sleep at a specified address. police will visit the address at random points in the day to monitor compliance.
4. curfew- stp[s committing further offences of bail - consider employment and care commitments.
5. non communication
6. restriction on location
7. reporting
8. surrender of passport
remand time limits
if the court chooses to remand a defendant in custody, time limits are set on the period of remand.
the time limits are dependant on whether the decision is made before or after conviction and sets out these time periods.
- pre conviction
three clear days to a police constable
eight clear days in custody to prison
28 clear days in custody to prison where
- the next stage of proceedings is fixed to occur within that time
- the defendant at the time of remand is before the court and
- the defendant has previously been remanded in custody by the court in the proceedings
28 clear days in custody to prison if the defendant is already serving a custodial sentence.
- post conviction e.. awaiting sentencing
- three weeks in custody for enquiries or reports for sentencing
- four weeks on bail.
further applications for bail
if the court decides not to grant the defendant bail, it is the court’s duty to consider the question of bail at each subsequent hearing. t
custody time limits
in addition to the remand time limits, solicitors need to also be aware of custody time limits that apply to defendants in criminal proceedings.
refers to the maximum amount of time that an individual may be remanded in custody during the progress of a criminal trial (designed to ensure that cases will be expedited where the defendant remains in custody)
- 56 days summary only offences from first appearance at trial.
- 70 days for cases sent to the crown court from first appearance in the magistrates court to sending to the crown court).
- 70 days for either way offences being tried in the magistrates court - from first appearance at trial (reduced to 56 days if an allocation hearing is held within the first 56 days)
- 182 days for indictable only offences sent to the crown court from sending to arraignment in the crown court.
NB: prosecution can apply for the deadline to be extended.
- to do so it must show on the balance of probabilities that there is GOOD AND SUFFICIENT CAUSE FOR THE EXTENSION AND HAS ACTED WITH DUE DILIGENCE AND EXPEDITION.
- once the time period has elapsed (without the prosecution showing the above) the defendant MUST be released on bail pending trial.
appealing bail
two circumstances: appeals by the defence where bail is refused, and appeals by the prosecution where bail is granted.
defence appeals
where the magistrates court has refused bail, the defendant may appeal to the crown court.
application process:
1. must apply to the crown court in writing as soon as practicable after the magistrates courts decision and serve the application to the crown court, magistrates court and prosecution
2. notice must specify the decision the defendant wishes the crown court to make, the reasons why bail should not be withheld, any proposed conditions for bail and the application must attach a certificate of full argument.
3. appeals will usually be heard by a crown court judge in chambers - will be a complete rehearing of a bail application.
prosecution appeals against bail
the prosecution does not have such an unfettered right to appeal against the granting of bail. only permitted where the defendant has been charged with an imprisonable offence if it is not punishable by imprisonment, the prosecution cannot appeal against a decision to grant bail.
may appeal either to the crown court or the high court
NB: in both cases, must give oral notice to the court which has granted the bail of the decision to appeal at the end of the hearing and before the defendant is released on bail.
must serve written notice not more than 2 hours after informing th court of its decision to appeal.
the defendant must be remanded in custody until the appeal has been determined.
absconding and breaches of bail
court will issue a warrant for their immediate arrest - criminal offence
magistrates curt - 3 months +5,000
crown court - 12 months and unlimited fine.
breaching bail conditions - not a criminal offence but can have unfortunate consequences on the defendant.
a police officer has the power to arrest without a warrant if they have reasonable grounds to believe that the defendant has:
1. has broken any conditions of their bail OR
2. is likely to break any conditions of their bail.
plea in mitigation
- Introduction
- Summarise the case - end with saying that the defendant has been convicted of the offence they are charged with
- Outline the structure you will follow - address what the starting point and range of sentences are for this offence
- consider whether any aggravating or mitigating factors apply
- if there are multiple offences why they should be concurrent
- early plea - remind the court that they should be given credit for this
- conclude by proposing that an appropriate sentence for he defendant: is X
- conclusion;
a) highlight key submissions made
b) emphasise why sentence proposed would be appropriate
UNLESS I CAN ASSIST THE COURT FURTHER THOSE ARE MY SUBMISSIONS.
appeal against sentence or conviction - magistrates to the crown court
sentence and conviction: notice of appeal lodged within 15 business days of sentence, served on the magistrates court and prosecution.
the notice of appeal must state
- the conviction/sentence it wishes to Appel, with the court and the date
- summary of the issues
- state whether the MC have been used to reconsider its decision under the MC s142 MAC 1980 and if not state why not
- list all the parties the notice will be served on.
if this is served later than 15 business days, an application for an extension of time is required with reasons. provided notice is given on time - no leave is required there is an automatic right to appeal.
the appeal will be heard by a judge and between 2 and 4 lay magistrates
conviction appeal from the magistrates to the crown court : crown court has the power impose any sentence that would have been available to the MC (more or less severe than imposed by the magistrates).
following a rehearsing in the crown court whether against sentence or conviction, both the prosecution and the defence have the ability to appeal to the high court by way of case stated.
sentence:
manifestly excessive
legitimate expectation
appeals by way of case stated
the second form of appeal from the magistrate court is an appeal by way of case stated - based on law and not on fact and is heard by the administrative court, sitting as a divisional court of the KBD
appeals by way of case stated are open to the P and the D.
grounds:
1. that the decision made by the MC is wrong in law e.g. the M’s have misapplied the law, or admitted evidence it ought not to have admitted OR
2. the decision made by the magistrates court is in excess of their jurisdiction e.g. that the magistrates heard a case for which they did not have jurisdiction
NB: once an application to state a case to the high court is made, the appeal route to the crown court is lost. therefore usually advise to the crown court first and then the high court after.
appeals from the crown court
an appeal may be brought by a defendant against their conviction or their sentence at the conclusion of the proceedings.
grounds of appeal:
LEAVE OF APPEAL IS REQUIRED.
conviction: If the defendant appeals against conviction the court of appeal will only allow the appeal in the event of unsafe conviction
unsafe conviction:
1. the trial judge incorrectly rejected a submission of no case to answer
2. the trial judge misdirected the jury on a point of law
3. the trial judge permitted evidence to be adduced which should have been excluded e.g. confession evidence or excluded evidence which should have been permitted e.g. hearsay evidence.
4. the trial judge made an error in summing up
5. the trial judge made unnecessary interventions or comments.
6. in limited circumstances; fresh evidence has been introduced (very restricted).
hearing fresh evidence 0 the court of appeal can in particular circumstances when it is in the interests of justice to do - in particular it will consider whether the fresh evidence is credible, affords a ground of appeal and would have been admissible at trial + there is a reasonable explanation for the failure to adduce it at trial.
APPEALS AGAINT SENTENCE: where the defendant appeals against sentence, they must demonstrate that the sentence is either:
1/ wrong in law
2. manifestly excessive or wrong in principle. e.g. the judge took the wrong approach in sentencing
