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Flashcards in LG3 Deck (47):
1

Bail:

Principles governing granting/withholding bail;
Procedure for making a bail application;
Challenging the refusal of bail;
Consequences of failure to attend court;
Consequences of breaching bail conditions;
Prosecution appeals against grant of bail;
Custody time limits.

+

Summary offence

2

adjournments and remands: D5.27, D5.29-D5.30

time limits applicable to remands in custody and applications for their extension (detailed knowledge of specific time limits not required): D5.32, D5.36, D15.7, D15.14-15.15, D15.18 and D15.23
the presumption in favour of bail and the occasions when it does not apply; the statutory grounds for withholding bail, and the matters that have to be considered by the court: D7.1-D7.4, D7.6-7.7, the first sub-paragraph of D7.8, D7.11-7.13, D.7.15-7.22; D7.23-7.31, D7.35 and D7.36

3

bail conditions that can be applied and under what circumstances:

D7.44-48, D7.50, D7.55, D7.60, D7.65-7.66

4

the procedure for making a bail application, the practice and procedure on further application to the Crown Court following a decision to refuse bail in the magistrates’ court:

D7.67, D7.68, the first sub-paragraph of D7.70, D7.78, D7.80, D7.83-7.84 and D7.86

5

grounds upon which the prosecution can appeal to the Crown Court against a decision to grant bail

D7.92-7.93

6

dealing with defendants who have failed to surrender to bail or breached their bail conditions

D7.97-7.98, D7.102, D7.104, the first two paragraphs of D7.106, D7.109, D7.111-7.112 and D7.114

7

s8 Summary Trial Procedure:

pre-trial rulings: D21.35
proceeding in the absence of the defendant: D5.43 and D22.13, CrimPR rule 37.11
abuse of process in the magistrates’ courts: D21.21

8

Procedural steps in a summary trial

including role of the legal adviser, the procedure for raising points of law, and the different ways in which evidence may be presented or proved and speeches: first sub-paragraph of D22.36, D22.37, first sub-paragraph of D22.38, D22.40-22.41, D22.43, first sub-paragraph of D22.44, D22.62, D22.77-78

9

Submission of no case to answer

Verdicts

D22.49-22.51

D22.67-22.69

10

Bail:

[Assuming the police decide to withhold bail after charge under PACE, s 38:]

D appears at a magistrates’ court no later than the first sitting after he is charged with the offence (PACE, s 46(2));
Where D is on bail, an adjournment is called a ‘remand’;
Bail Act 1976, s 4: presumption in favour of bail

11

Statutory grounds for withholding bail:

Imprisonable indictable offences: Bail Act 1976, sch. 1, part I, paras 2-7; factors taken into account by court: para 9;
Imprisonable summary offences: sch. 1, part IA ;
Non-imprisonable offences: sch. 1, part II.

12

Bail Act:

* Para 2: substantial grounds for believing that D would:

(a) fail to surrender to custody, or
(b) commit an offence while on bail, or
interfere with witnesses/otherwise obstruct the course of justice.
* Para 2A: D already on bail for another offence when the present offence was allegedly committed.
Para 2ZA: D would commit an offence by engaging in conduct that would cause physical/mental injury to an associated person (as defined by the FLA 1996, s 62).


13

Bail Act

Para 3
4
5
6
6A - 6C
7

Para 3: D's own protection (or welfare, if a child or young person).
Para 4: D already serving a custodial sentence for another offence.
Para 5: Court has insufficient information.
* Para 6: D has been arrested (under s 7) for absconding in the present proceedings.
Para 6A-6C: Drugs cases: refusal to undergo drug test.
Para 7: Where case adjourned for inquiries/ a report, it would be impracticable to complete the inquiries or make the report without keeping the defendant in custody.

14

* Para 1A: certain paragraphs do not apply where:
D has attained the age of 18, and
D has not been convicted in the proceedings, and
It appears to the court that there is ‘no real prospect that the defendant will be sentenced to a custodial sentence in the proceedings’:
para 2; para 2A; and para 6.

Starred paragraphs to Bail Act:


Para 2
Para 2A
Para 6

15

Relevant Factors for the court, para 9 - Bail

(a) the nature and seriousness of the offence and the probable method of dealing with the offender for it;
(b) the character, antecedents, associations and community ties of the accused;
his 'record' for having answered bail in the past;
[prior to conviction,] the strength of the evidence against him;
[if satisfied there are substantial grounds for believing D will commit an offence while on bail,] the court must have regard to risk that he may do so by engaging in conduct likely to cause physical or mental injury to any other person.

16

Sch. 1. Part IA: Imprisonable summary offences

Para 2
3
4
5
6

* Para 2: D has failed to surrender to custody, and court believes, in view of that failure, he would fail to surrender to custody if granted bail.
* Para 3: D was on bail at the date of the present alleged offence and the court is satisfied that there are substantial grounds for believing that he would commit an offence while on bail.
Para 4: D would commit an offence by engaging in conduct that would cause physical/mental injury to an associated person (as defined by the FLA 1996, s 62).
Para 5: D’s own protection (or welfare, if a child or young person).
Para 6: D serving a custodial sentence for another offence.

17

Sch. 1. Part IA: Imprisonable summary offences

Para 7
8
9
a!

* Para 7: D has been arrested (under s 7) for absconding in the present proceedings, and the court is satisfied that, if released on bail, D would fail to surrender to custody, commit an offence while on bail or interfere with witnesses or otherwise obstruct the course of justice.
Para 8: Court has insufficient information.
Para 9: Drugs cases: refusal to undergo drug test.
* Para 1A: Prior to conviction certain paragraphs do not apply if it appears to the court that there is ‘no real prospect that the defendant will be sentenced to a custodial sentence in the proceedings’: para 2; para 3; and para 7.

18

Sch 1, Part II: Non-imprisonable offences

Para 2 - 6

Para 2: D is under 18 or has been convicted, and he has failed to surrender to custody, and the court believes, in view of that failure, that he would fail to surrender to custody if granted bail.
Para 3: D’s own protection (or welfare, if a child or young person).
Para 4: D serving a custodial sentence for another offence.
Para 5: D is under 18 or has been convicted, and has been arrested (under s 7) for absconding in the present proceedings, and the court is satisfied that, if released on bail, D would fail to surrender to custody, commit an offence while on bail or interfere with witnesses or otherwise obstruct the course of justice.
Para 6: D has been arrested (under s 7) for absconding in present proceedings and the court is satisfied that, if released on bail, D would commit an offence by engaging in conduct that would cause physical/mental injury to an associated person (as defined by the FLA 1996, s 62).

19

Criminal Justice and Public Order Act 1994, s 25(1):

A person charged with/convicted of an offence to which this section applies, and who has been previously convicted of any such offence, shall be granted bail only if the court is ‘satisfied that there are exceptional circumstances which justify it’. Includes murder, manslaughter, rape.

20

Murder: Coroners and Justice Act 2009:

s 115(1): A person charged with murder may not be granted bail except by order of a judge of the Crown Court.
s 114(2): A defendant charged with murder may not be granted bail unless the court is of the opinion that there is no significant risk of him committing, while on bail, an offence that would, or would be likely to, cause physical/mental injury to anyone else.

21

What is the procedure for making a bail application?

The prosecution outline the facts of the case and present their objections to bail, based on information provided by police (CrimPR, r. 19.5(3): a prosecutor opposing bail must specify each exception to general right to bail on which he relies, and each consideration that he thinks relevant);
The defence make their application for bail:
the prosecution objections are unfounded, or
those objections can be met by imposition of conditions.
The bench decide:
Unconditional bail;
Conditional bail;
Bail withheld (D is remanded in custody).

22

Conditions may be imposed if there is a ‘real [not fanciful] risk’ (Sharkey [1985] QB 613); condition must be ‘necessary’ to prevent the risk materialising (R (CPS) v Chorley Justices (2002) 166 JP 764).

Conditions are often suggested by the defence. If the prosecution seek specific conditions, they must specify each condition proposed, and explain what purpose would be served by such a condition (Crim PR r. 19.5(4)).
Common conditions include:
Reporting to a police station;
Living and sleeping at a specified address (‘residence’);
Curfew;
Surrendering passport;
Keeping away from specified people or specified places
Electronic monitoring (‘tagging’).

23

Surety:

A third party promises to pay a specified sum (‘recognisance’) if D absconds.
Counsel must establish that proposed surety:
understands the obligation they are taking on (i.e. forfeiture of recognisance if defendant absconds);
has some influence over the defendant; and
has the necessary funds.
Failure to check these matters before putting forward a proposed surety may raise a professional conduct issue for counsel (ex p Ali (1999) 163 JP 145 at 147, per Kennedy LJ).
Contrast ‘security’, where D lodges assets with the court (forfeit if he absconds).

24

How long can D be remanded in custody on each occasion?

MCA 1980, s 128(6): remand in custody cannot exceed 8 clear days. But:
MCA s 128 (3A)-(3E): D can consent to being remanded in his absence if he has a legal representative acting for him; he can only be remanded in his absence on up to 3 consecutive occasions.

25

What if bail is refused by mags at first hearing?

Try again in the magistrates’ court the following week:
A fully-argued application is permitted at next hearing, regardless of whether it repeats arguments already placed before the previous bench (Bail Act 1976, sch. 1, part IIA, para 2);

Thereafter: at subsequent hearings, the court need not hear arguments as to fact or law which it has heard previously (para 3). To justify another application to magistrates, D must present arguments as to fact or law which the court has not heard previously.
R v Nottingham Justices ex p Davies [1981] 1 QB 38;
R (B) v Brent Youth Court [2010] EWHC 1893 (Admin):
not necessarily a change in circumstances. The question is whether there are ‘any new considerations which were not before the court when the accused was last remanded in custody?’ (at [16]).


26

Challenging refusal of bail (2)

When bail is refused after a full-argued application, the magistrates must issue a ‘certificate of full argument’ (s 5(6A) Bail Act 1976).
D then can apply to the Crown Court for bail (s 81(1)(g), SCA 1981);
Usually ‘in chambers’ (but see Malik [2007] 1 WLR 2455);
D has no right to be produced from prison (but may appear by video link);
The procedure is the same as in the magistrates’ court (i.e. prosecution objections followed by the defence attempting to refute those objections).

27

What happens if D fails to surrender

If the court accepts there is a good reason for D’s absence, the case will be adjourned and D will be remanded on bail as before.
Otherwise, the possible consequences include:
Bench warrant for D’s arrest
Trial in absence of D
Forfeiture of surety’s recognizance
Conviction and sentence for absconding
Reduced chance of being granted bail in the future.

28

Bench warrant (BA 1976, s 7(1))

The court may adjourn the case and issue a bench warrant (BA 1976, s 7(1)).
Usually, the warrant is not backed for bail, so D is arrested and brought to court.
Exceptionally, a warrant may be backed for bail (D is released on bail after arrest).
Alternatively, the court may send a warning letter to D’s last known address.

29

When can D be tried in his absence?

The court can proceed with the trial without D being present (MCA 1980, s 11):
Where D has attained the age of 18: unless it appears to the court to be contrary to the interests of justice, the court shall proceed in D’s absence (s 11(1)(b)).
But, the court shall not proceed in the absence of D if it considers there is an acceptable reason for his failure to appear (s 11(2A)).
Note: if the offence is triable either way, D must usually be present at the mode of trial hearing in order to give consent for summary trial.

30

Offence of failure to surrender to custody

Separate offence of failing to surrender (Bail Act, s 6):
The offence is committed only if the failure was ‘without reasonable cause’;
D has to prove he had reasonable cause (and so must be given a chance to explain).
Sentencing Guidelines: http://sentencingcouncil.judiciary.gov.uk/docs/web_Fail_to_Surrender_to_Bail.pdf
D can be dealt with under s 6 even if acquitted of the ‘main’ offence;
The sentence for s 6 does not have to be proportionate to the sentence for the ‘main’ offence;
Any custodial sentence is likely to be consecutive to the sentence for the ‘main’ offence.

31

What happens to the surety if D absconds?

Forfeiture of the recognisance is likely.
Absence of culpability on the part of the surety is not, of itself, sufficient to prevent forfeiture:
R v Uxbridge Justices ex p Heward-Mills [1983] 1 WLR 56;
Choudhry v Birmingham Crown Court [2007] EWHC 2764 (Admin).

32

What about D’s chances of being granted bail again?

Present case: the presumption in favour of bail ceases to apply (BA 1976, sch. 1, part 1, para 6) unless there is no real prospect that the defendant will be sentenced to a custodial sentence in the proceedings (para 1A).
Consequences for later cases involving D: D is less likely to be granted bail (as record of answering bail in the past is a relevant consideration: para 9).

33

What if D breaches bail conditions?

Where D has been bailed to attend a court, a police officer may arrest him without warrant (under BA 1976, s 7(3)) if:
the officer has reasonable grounds for believing that:
D is not likely to surrender to custody or
D has broken/is likely to break any condition of his bail; or
a surety has given written notice to police that D is unlikely to surrender to custody and for that reason the surety wishes to be relieved of his obligations.
BA 1976, s 7 does not create a criminal offence: it simply provides a power of arrest: R (Gangar) v Leicester Crown Court [2008] EWCA Crim 2987.

34

What happens after D has been arrested?

Following arrest under s 7(3), D must be brought before a magistrate within 24 hours (excluding Sundays): s 7(4).
Two questions for the magistrate:
(i) Is D likely to abscond or breach a bail condition, or has D already broken a condition? If ‘yes’:
(ii) Should D be granted bail and, if so, on what conditions?
R (DPP) v Havering Magistrates' Court [2001] 1 WLR 805; R (Vickers) v West London Magistrates' Court (2003) 167 JP 473.
s 7(5A): A magistrate cannot withhold bail under s 7 if person has not yet been convicted in those proceedings, and it appears to the magistrate that there is ‘no real prospect’ that he will be sentenced to a custodial sentence in those proceedings.

35

Can the prosecution appeal against grant of bail?

Bail (Amendment) Act 1993:
The prosecution can appeal to the Crown Court against a magistrates’ court decision to release D on bail (or to the High Court against a decision of the Crown Court) if:
D is charged with an imprisonable offence; and
CPS objected to bail at the bail hearing; and
The prosecutor gives oral notice of appeal at the end of the hearing, before D is released; and
The prosecutor serves written confirmation within the next 2 hours.
The appeal will be heard within 48 hours (excluding weekends and public holidays): the appeal takes the form of a re-hearing.
CPS guidance: the prosecutor should appeal only where there is a serious risk of harm.

36

Can the prosecution apply for reconsideration of bail?

Bail Act 1976, s 5B:
The application is to the magistrates’ court (not an appeal);
The application must be based on information which was not available to the court at the time of the original decision;
The magistrates’ court may impose/vary bail conditions or withhold bail.

37

Custody Time Limits (‘CTLs’)

Prosecution of Offences Act 1985, s 22: if the relevant CTL expires, D must be released on bail. Bail may be subject to certain conditions (e.g. residence) but not surety or security.
Summary offences: 56 days between the first court appearance and the start of the summary trial.
Either-way offences in Magistrates’ Court: 70 days between the first appearance and either summary trial or sending to the Crown Court for trial.
Either-way offences in the Crown Court: 112 days between sending to the Crown Court for trial and the start of the trial (a total of 182 days).
Indictable-only offences: 182 days between the day the case was sent to Crown Court (s 51 CDA 1998) and the start of the trial.
The prosecution may apply, before the expiry of the relevant time limit, for an extension:
must show, on balance of probabilities, that there is ‘good and sufficient’ reason for extension, and
that they have conducted the case with ‘due diligence and expedition’.
See Manchester Crown Court, ex p McDonald [1999] 1 WLR 841.

38

Summary Trial

Pre trial rulings

– MCA 1980, s 8A: a magistrates' court may, before the start of the trial, make a ruling on any
question as to the admissibility of evidence, or
any other question of law relating to the case,
provided
it has given the parties an opportunity to be heard, and
it appears to the court that it is in the interests of justice to make the ruling.
Section 8B: a ruling under s 8A has binding effect until the case against the accused is disposed of.
A magistrates' court may discharge or vary a ruling under s 8A if:
there has been a material change of circumstances since the ruling was made,
the court has given the parties an opportunity to be heard, and
it appears to the court that it is in the interests of justice to do so.

39

Delay: abuse of process

Where delay amounts to abuse of process, the court may dismiss the case: Brentford Justices ex p Wong [2981] QB 445
Deliberate delay is likely to amount to abuse of process.
Otherwise, the court has a discretion not to proceed if (i) there has been inordinate or unconscionable delay due to the prosecution's inefficiency, and (ii) prejudice to the defence from the delay is either proved or to be inferred (Gateshead Justices ex p Smith (1985) 149 JP 681).

40

What happens in a summary trial?

R 24.3(3)

Rule 24.3(3):
“(a) the prosecutor may summarise the prosecution case, identifying the
relevant law and facts;
(b) the prosecutor must introduce the evidence on which the prosecution
case relies;
(c) at the conclusion of the prosecution case, on the defendant’s
application or on its own initiative, the court: (i) may acquit on the
ground that the prosecution evidence is insufficient for any reasonable
court properly to convict, but (ii) must not do so unless the prosecutor
has had an opportunity to make representations;
(d) the justices’ legal adviser or the court must explain, in terms the
defendant can understand (with help, if necessary): (i) the right to give
evidence, and (ii) the potential effect of not doing so at all, or of refusing
to answer a question while doing so;
(e) the defendant may introduce evidence;
(f) a party may introduce further evidence if it is then admissible (for
example, because it is in rebuttal of evidence already introduced);
(g) the prosecutor may make final representations in support of the
prosecution case, where: (i) the defendant is represented by a legal
representative, or (ii)whether represented or not, the defendant has
introduced evidence other than his or her own; and
(h) the defendant may make final representations in support of the defence
case.”

41

Rule 24.33 simplified:

Rule 24.3(3):
“(a) the prosecutor may summarise the prosecution case, identifying the
relevant law and facts;
(b) the prosecutor must introduce the evidence on which the prosecution
case relies;
(c) at the conclusion of the prosecution case, on the defendant’s
application or on its own initiative, the court: (i) may acquit on the
ground that the prosecution evidence is insufficient for any reasonable
court properly to convict, but (ii) must not do so unless the prosecutor
has had an opportunity to make representations;
(d) the justices’ legal adviser or the court must explain, in terms the
defendant can understand (with help, if necessary): (i) the right to give
evidence, and (ii) the potential effect of not doing so at all, or of refusing
to answer a question while doing so;
(e) the defendant may introduce evidence;
(f) a party may introduce further evidence if it is then admissible (for
example, because it is in rebuttal of evidence already introduced);
(g) the prosecutor may make final representations in support of the
prosecution case, where: (i) the defendant is represented by a legal
representative, or (ii)whether represented or not, the defendant has
introduced evidence other than his or her own; and
(h) the defendant may make final representations in support of the defence
case.”

42

How can the defence object to prosecution evidence?

Any defence objections to prosecution evidence are usually made under
PACE 1984, s 76 (confessions): there has to be a ‘trial within a trial’ on the admissibility of the confession; or
PACE 1984, s 78 (any prosecution evidence): the court has a discretion to hear evidence.
The court has a discretion as to when to determine the question of admissibility.

43

How can the defence object to prosecution evidence?

Any defence objections to prosecution evidence are usually made under
PACE 1984, s 76 (confessions): there has to be a ‘trial within a trial’ on the admissibility of the confession; or
PACE 1984, s 78 (any prosecution evidence): the court has a discretion to hear evidence.
The court has a discretion as to when to determine the question of admissibility.

44

Submission of no case to answer

After the close of the prosecution case, the defence may make a submission of no case to answer:
“the prosecution evidence is insufficient for any reasonable court properly to convict”;
the prosecutor must be given an opportunity to make representations;
Note the possibility of the prosecution being allowed to re-open their case: Tuck v Vehicle Inspectorate [2004] EWHC 728.

45

What is the submission of no case to answer fails (or no submission is made)?

The defence call their evidence:
D usually has to testify first (PACE 1984, s 79);
There is a risk of adverse inferences if D does not testify (CJPOA 1994, s 35).
Prosecution evidence in rebuttal (very unusual).
The prosecution may make a closing speech if:
D is legally represented, or
whether represented or not, D has introduced evidence other than his/her own.
The defence make a closing speech.
The court considers the verdict.

46

Verdicts in a summary trial

Guilty or not guilty.
No power to convict of a ‘lesser included’ offence (Lawrence v Same [1968] 2 QB 93), unless specific statutory apply [compare Crown Court].
If D is convicted, the court must ‘give sufficient reasons to explain its decision’ (r. 24.3(5)).
In the event of disagreement, a lay bench reaches its verdict by a majority.
If the bench is even-numbered, the chairman does not have a casting vote, and so if the justices are equally divided, the case has to be reheard by a different bench.
If the accused is charged with alternative offences and is found guilty of the more serious one, the court gives no verdict on the lesser alternative: R (Dyer) v Watford Magistrates' Court [2013] EWHC 547 (Admin)

47

What is the role of the court legal adviser/clerk?

What is the role of the court legal adviser/clerk?