Pre-trial criminal litigation Flashcards
Process for bail?
Once the prosecutions objections to bail has been raised, its for defence to apply to bail. All decisions for bail are made in magistrates except for murder.
Right to bail?
- Prosecution needs to apply for remand into custody
- S4 Bail act – presumption of right to bail
- Purpose of bail is to secure the notion that the prosecution has to apply to remove bail as a matter practice
- Language of statute seems to remove the presumption in certain cases.
- Usually time limits – and if the case has not progressed according to the time limits, the right to bail becomes absolute
Presumption of bail does not apply - but can still be given?
- Those appealing their conviction or sentence
- To defendants being committed for sentences from magistrates to CC
CAN STILL BE GIVEN BUT ITS AT COURTS DISCRETION
Grounds on which prosecution can object?
Driven by seriousness of offence charged
indictable offences
- all thefts are indictable
- most violent offences are indictable
- main sexual ones are indictable
3 Primary grounds
- Test set out in Bail Act 1976 Sch 1 para 2 – substantial grounds for believing that
test for substantial grounds -
- - Only necessary to show that the fears have substance and merit – factual enquiry. Representation will be made by both parties. Witnesses can be called magistrates have inquisitorial role in this proves and may ask questions.
- Defendant would fail to attend subsequent hearing
- Commit further offences on bail
- Interfere with witnesses or obstruct course of justice
No real prospects
- A recent addition – the final filter that bail should be removed under one of these grounds if the defendant is charged with a custodial offence – where are there are no real prospects of receiving a custodial sentence. Then the ground of objection cannot succeed.
Summary offences - grounds to object bail?
- For less summary offences – only available if a defendant breaches a condition of bail in these proceedings of has a conviction for fail to surrender in their past.
- But if defendants’ behaviour on bail suggests otherwise – the grounds for objection are activated
Need not be granted bail when?
- Remand in custody for defendants’ own protection
- Court has insufficient info to deal with issue of bail and so remains in custody for a short period
- The defendant is already serving a sentence in custody.
Specialist grounds for bail?
- Serious cases – where its harder to get bail
- Cases of a particular character – where a different approach is need because of particular behavioural difficulties.
- Cases where the defendant infringed bail
- Remaining cases
When looking at client
First determine if it’s a serious crime – whereby courts MUST follow stringent test and general objections cease to apply
For cases of a particular character – prosecution can either use these additional grounds or rely on more general grounds.
SO for murder
- ONLY CROWN COURT CAN GRANT BAIL
- IF D has pre-con for murder, attempted murder or rape or serious sexual offence s- MAY NOT BE GRANTED BAIL UNLESS EXCEPTIONAL CIRCUMSTANCES TO JUSTIFY IT
- IF NO PREV CONVICTIONS - THEN MAY NOT BE GARNTED BAIL UNLESS there is not significant risk of d causing an offences.
Attempted murder, rape or serious sexual offences
= AGAIN IF HAVE PREV CONVICITON FOR ABOVE May not be unless excpetional
An offence carrying life imprisonment
= if d was either already on bail and or failed to attend - may not be granted unless no signifcant risk of further offences being commited or failure to attend/
Factors for bail?
Failure to surrrender
= Nature and seriousness
= Charceter of defendant d’s antecdents, associations and community ties
- Past bail record
Stength of evidence
Commit further offences
= Nature and seriounes
= community ties
interefer with witnesses
- nature and serioyeness
= strength of evidence
Bail conditions?
- Residence at given address
- Curfew
- Reporting to a local police station at given time
- Surety – offer of money made by someone with influence to secure the defendants return to court – agree to forfeit a sum of money – merely promise to pay don’t deposit it.
- Security – some valuable item
- Restriction on where a defendant may go during bail
- Tagging
- Bail hostels – used if defendant does not have a
- Restriction on who can be contacted whilst on bail
Varying bail conditions
- Applications to vary conditions can be made by defence or prosecution on advance notice to the other party. Parties can agree without a hearing.
Breach bail codntiions?
- May result in being arrested under bail act 1976 – could be remanded in custody or having bail conditions tightened.
- No offence of breaching a bail condition. As such after arrets must be brought to magistrates and then question is whether bail should continue to exist.
- The only bail breach which is a criminal offence is failing without reasonable cause to surrender to custody. – punishable by 3 months imprisonment.
Bail procedure?
If defendant has been refused bail by the police, will appear before the next available magistrate’s court.
Defence advocate will check with prosecutor if they intend to object to bail.
If they do, then defence presents it arguments for bail to be granted. – court will then announce its decisions.
Bail procedure timeline?
- Defendant attends court and is listed and applies for bail
- If unsuccessful case will be returned to court a week later where issue f bail can be raised a second time without any restrictions.
- Once the defendant has had both applications the defendant must secure a certificate of full argument from magistrate’s court before then appealing before then appealing if it wishes to do so.
- D can only apply again if there is a change in circumstances
Bail - urgent cases?
- Defence may wish to exercise its appeal more quickly
- Crown court will hear appeal no later than one business day after the appropriate notice is served
Magistartes court grants bail? Appeal?
- Very rare for prosecution to appeal against granting bail
- Prosecution must have opposed bail originally
- Offence must be imprisonable
- Prosecution indicates orally at hearing when bail is granted that they will appeal
- Intention to appeal is confirmed in writing and served on court and defence within two hours
- Appeal is heard within 48 hours – excluding weekend
- Appeal is heard by a crown court judge
Limits depend on classifications of the offence?
- 56 days for trial in magistrates
- 182 days for crown court less any days spent in custody prior too the case being sent to the crown court
A trial must commence before the expiry of the custody time limit
- In magistrates the start of trial is when court begins hearing evidence from prosecution
- In crown court it’s when the jury is sworn in
