Unit 2 – Bail

Question 1

What are the 3 ways a suspect can be remanded?

Answer 1

(a) A remand in custody
(b) A remand on bail with conditions attached to that bail; or
(c) A remand on unconditional bail.

Question 2

What is the basic rule on remands in custody? (before conviction)

Answer 2

Basic rule = D may not be remanded in custody for more than 8 CLEAR days at a time.

Question 3

What are the exceptions to this rule?

Answer 3

Exceptions:

1. If D’s case is still in the magistrates’ court, where there are successive remands in custody, the defendant needs to be brought before the court on every fourth remand, provided they have consented to this and have legal representation.
2. Court may remand a defendant in custody for up to 28 days if:

(a) It has previously remanded them in custody for the same offence; and
(b) They are before the court; and
(c) It can set a date to remand them to on which it expects the next stage of the proceedings to take place.

Question 4

what is the exception which allows for the defendant not to be brought before the court every 8 days?

Answer 4

Whilst D should be bought before the court every 8 days, the rules recognise situations in which that may not be necessary. When those exceptions apply, then D should be bought before the court on every fourth remand (4x8 clear days). This is an important safeguard for D to ensure that the reasons for detention are continuing.

Question 5

What is the total amount of custody time (after charging) but before trial / convcition that the suspect / defendant can be remanded for?

Answer 5

Summary offence = 56 days before trial

Either-way Offence = 70 days before trial

Question 6

8) Curfew

Answer 6

D must remain indoors during certain hours and could be monitored by electronic tags.

Question 7

If prosecution wish to extend this, what do they need to show?

Answer 7

1) on the balance of probabilities, there is a good and sufficient cause to do this

2) They have acted with due diligence & expedition

Question 8

How should the application for time extension be made?

Answer 8

Written notice of intention given to court no less than 2 days before the hearing in the magistrates’ court.

– Orally / in writing

– D has a right to appeal for this extension at the crown court

Question 9

Where is D kept while in custody?

Answer 9

Prison / remand centre.

Question 10

What is the general rule on court bail?

Answer 10

D has a prima facie right to unconditional bail until convicted (and after conviction if sentencing reports are being prepared.).

Question 11

What are the EXCLUSIONS where there is NO right to bail?

Answer 11

1) D has been convicted of most serious offences (e.g., murder, manslaughter, rape)

2) D has a previous conviction for those offences & has been charged with a further offence)

3) D is appealing summary conviction or has been summarily convicted and is awaiting crown court sentencing.

Question 12

Under EXCEPTIONS (not exclusions) to the general right to bail, what are the substantial grounds exceptions?

Answer 12

Exceptions relate to circumstances where D need not be granted bail. The main exceptions are found in Para 2(1) (“The Substantial Grounds”).

Where the court has substantial grounds for believing that D will:

1. Fail to surrender to custody;
2. Commit an offence whilst on bail; or
3. Interfere with witnesses.

This is a high threshold – it is not satisfied if the court believes D only may do one of these things.

Question 13

What are the statutory grounds for refusing bail?

Answer 13

In deciding whether one or more of the substantial grounds for bail are satisfied, court considers the statutory grounds for refusing bail:

(a) Nature and seriousness of the offence or default (and the probable method of dealing with the D for it)

– i.e., if serious and the possible sentence is grave, then CPS may argue that D will fail to surrender to custody.

(b) The character, antecedents (past convictions), associations and community ties of D;

– Previous convictions

– If reason for previous offences is ongoing (e.g., drug addiction), CPS will argue likely to commit further offences while on bail.

– Associations – relevant where D is likely to recommit offences, i.e., known to associate with criminals, or where a witness is known to D and they may attempt to interfere.

– Community ties = if D has no ties, i.e., unemployed, no relatives in local area, there is little to prevent them from absconding and leaving the area.

(c) D’s record as regards the fulfilment of obligations under previous grants of bail in criminal proceedings;

– Previous instances of absconding.

(d) The strength of the evidence of D’s having committed the offence or having defaulted (except where; and

(e) Any other relevant factors.

Question 14

What are the further exceptions where bail may not be granted?

Answer 14

Bail may not be granted where:

(a) D was on bail at the time D committed an indictable offence – note: law commission recommends that this ground is not used by itself. It should be used to support the case for the main exception being used.

(b) D needs to be kept in custody for D’s own protection

(c) D has been arrested for breaching bail conditions for absconding

(d) There are substantial grounds for believing D would commit an offence whilst on bail that would cause (or cause far of) physical or mental injury to an associated person – this exception is aimed at tackling cases of domestic violence; or

(e) It has not been possible in the time available to obtain sufficient information to make a decision regarding bail.

Note – and/or, not all, either one or more of these exceptions need to apply for bail not to be granted.

Question 15

What is the no real prospect of custody restriction?

Answer 15

Where:

(a) D has reached age of 18
(b) D has not been convicted of an offence in the proceedings and
(c) It appears to the court that there is no real prospect that D will be sentenced to a custodial sentence in the proceedings,

The magistrates’ court will have no power to remand a defendant in custody before their case is dealt with.

KEY NOTE – The exceptions above only apply if there is a “real prospect” that D will receive a custodial sentence if convicted. If there is no real prospect of D receiving a custodial sentence, the general rule applies (D has a prima facie right to bail before conviction) and bail should be granted.

Question 16

When can the court place conditions on bail?

Answer 16

Court can only add conditions to bail if one of the Para 8 Factors applies. These are:

a) That one of the substantial grounds applies, i.e., D will

• Fail to surrender
• Commit an offence while on bail or
• Interfere with witnesses

b) That denying bail is necessary for D’s own protection; or

c) That denying bail is necessary to enable enquiries to be made about D for a sentencing report.

Question 17

What are potential bail conditions?

Answer 17

1. Surety
2. Security
3. Residence
4. Bail hostel
5. Non-association
6. Reporting
7. Exclusion
8. Curfew
9. Surrender of passport

Question 18

1) Surety

Answer 18

Third party is obliged to ensure D surrenders into custody and acts as a guarantor to forfeit money if D absconds.

– GUarantor must be considered a “suitable person” and have financial means and a close bond with D

Question 19

2) Security

Answer 19

D arranges for money to be paid into court before D is released on bail.

– Money must be deposited into court in cash or other cleared funds.

Question 20

3) Residence

Answer 20

D required to live & sleep at specified address

Question 21

4) Bail hostel

Answer 21

if D has no fixed address, they may be required to reside at a specified bail hotel

Question 22

5) Non-association

Answer 22

D is restricted from contacting particular persons (including witnesses and co-defendants).

Question 23

6) Reporting

Answer 23

Attending local police station on regular basis

Question 24

7) Exclusion

Answer 24

D restricted from going to a specified area (football stadium)

Question 25

9) Surrender of passport

Answer 25

Ensuring Ds attendance at court

Question 26

Where bail is contested (i.e., by prosecution) where do they appeal?

Answer 26

Crown court judge in chambers

Question 27

Where defence appeal against the refusal of bail, where do they appeal?

Answer 27

crown court judge in chambers

Question 29

Are prosecutors obliged to keep the issue of bail under constant review throughout the case?

Answer 29

Yes.

Question 30

When should bail be considered?

Answer 30

At eevry hearing involving the defendant. Each party to the decision must be present at the decision.

Question 31

IMPORTANT – Further applications for bail (Defendant) –

Answer 31

– A defendant who is refused bail is entitled to have their advocate make ONE further full bail application in the magistrates’ court, but if this is refused, the advocate may make a further bail application only if they raise new legal/factual arguments as to why it should be granted.

– Where D’s case has been sent to crown court, D must make an application for bail in the crown court.

Question 32

What are the formalities for a defendant’s appeal against bail?

Answer 32

A D who has been refused bail, or who has sought to have conditions to bail varied but has been refused by the Magistrates’ court, may appeal the decision in the Crown Court.

Application must:

1. Be in writing,
2. Served on crown court and magistrates court
3. Provide details of decision sought, offence in question and reasoning for why the crown court should grant the application.

Question 33

When is the appeal against bail heard?

Answer 33

“as soon as is practicable and no later than the business day after it was served” (can be varied)

Question 34

What does the crown court judge in chambers require to hear D’s appeal?

Answer 34

(a) Notice of application
(b) The certificate of full argument; and
(c) A record of the defendant’s previous convictions.

Note – at hearing, judge will hear representations from CPS and the defendant’s advocate. If judge grants bail, a copy of the judge’s order will need to be sent to the prison or remand centre where D is being held to release them from custody.

Question 35

If magistrates grant bail to a D who has been charged with an imprisonable offence, does prosecution have the right to appeal against this decision in the crown court judge in chambers?

Answer 35

Yes:

1. Oral notice = must be given by prosecutor at the end of the hearing during which the court granted bail; and before the defendant is released from custody
2. This notice must be confirmed in writing and served on the defendant not more than 2 hours after telling the court of the decision to appeal.
3. The Crown Court must hear the appeal as soon as possible and in any event not later than 2 business days after the appeal notice was served (and takes place as a re-hearing).

NOTE – D will remain in custody by magistrates until the appeal is heard.

 Power to appeal should only be used in cases of ‘grave concern.

Question 36

What is the two ways to commit absconding from bail?

Answer 36

1) Failing to surrender without reasonable excuse (offence S 6(1) ; or

2) Having reasonable excuse but then subsequently failing to surrender (offence 6(2)

Question 37

1) Failing to surrender without reasonable excuse …

Answer 37

• Where D absconds, the magistrates will issue a warrant for their arrest.

Warrant:

1. Warrant will either be backed with bail (i.e.., the police, having arrested the defendant will then release them again pending their next court appearance) or;
2. Warrant not backed with bail – i.e., police must arrest D and keep them in custody until they can be brought to court. D will be brought before magistrates’ court at next hearing.

KEY NOTE – If D is arrested after the court has finished sitting on a Friday, then a specially arranged remand court is convened on Saturday morning. No courts sit on a Sunday, so a defendant arrested later on a Saturday will be kept in custody until the following Monday morning.

Question 38

Where D appears before the court after absconding, whose decision is to as to whether proceedings are brought against them for absconding from bail?

Answer 38

• Where D has been charged by police and bailed to appear before magistrates’ court – Whether or not D is charged with failing to surrender (s 6(1) or (2) of the Bail Act 1976 is up to the CPS.
• Where D has already made an appearance before the court and been granted bail by the court – decision to commence proceedings against them for absconding will be made by the court rather than CPS because D will be in breach of Court Bail.

Question 39

What are the consequences of failing to surrender?

Answer 39

Where D does not have a reasonable excuse for absconding, the court may either:

1. sentence him immediately or
2. adjourn sentence until conclusion of substantive proceedings.

NOTE – Where absconding was a result of a genuine misunderstanding, or D voluntarily surrendered to custody, the court may be persuaded to make a further grant of bail to D.

 where they wilfully absconded and had to be arrested by the police, they’re unlikely to be granted bail again.

Question 40

Is absconding from bail an offence in its own right?

Answer 40

Yes.

Question 41

Is breaching a bail condition an offece in its own right?

Answer 41

NO.

Question 42

What happens when a person breaches their bail conditions?

Answer 42

A police officer can arrest a person who has been bailed to attend court (either by the police following charge, or by the court at a previous hearing), if the officer reasonably believes:

(a) D is not likely to surrender to bail; or

(b) D has broken, or is likely to break, their bail conditions.

– A D who is arrested needs to be detained in police custody and must then be brought before the magistrates’ court within 24 hours.

– Magistrates then decide whether to remand D in custody, or whether to grant bail with or without conditions pending the next substantive hearing in the case.

Question 43

What do the magistrates consider when someone has breached their bail conditions?

Answer 43

Magistrates’ two-stage approach:

(a) Court first determines if there has been a breach of the bail conditions previously imposed. (usually relies on witness statements from the prosecution).

(b) If they determine there has been a breach, they decide whether D should be remanded in custody or on bail pending the next hearing. May grant further bail with more stringent conditions.