W4 Bail ✅ Flashcards
(42 cards)
What is adjournment?
- whenever D is presented to court and they cannot conclude the case in one hearing, the case will have to be adjourned.
- The word adjournemnt applies to what happened to the case, not what happens to the defendant.
What is remand?
- When D is sent away and told to come back another day = remand.
- D is obliged to come back to court to continue with the case.
- Remand is served in custody or served in the community on bail.
Who applies for remand?
How?
Prosecution
They present objections to bail (there is a presumption in favour of bail - s.4 Bail Act 1976).
Objections to bail?
- The objections to bail vary according to the type of offence.
- There are more and broader objections for more serious offences and less for less serious ones.
Why the variety of objections?
- If D is refused bail and kept in custody for a more trivial offence, the worry is that D will be held in custody for longer whilst waiting for trial than the D would ever be in custody as part of a sentence for the offence.
Who applies for bail?
When?
- Once prosecution objection to bail has been raised, it is then for the defence to apply for bail.
- Decision for bail is made in Mag’s Court (except for murder CC).
- Def and pros can appeal decisions on bail from Mags’.
Bail is an ongoing consideration.
Bail can be conditional.
The right to bail
- Pros need to apply for remand into custody of D.
- Bail Act 1976 s.4 - court must presume that a D is entitled to bail and it can only be refused if an objection is properly made out.
- Down to prosectuion to rebut the right to bail. They must make the first move.
- This presumption of right to baul is more complicated by offences like murder.
- Right to bail still applies to a person after conviction when the case is adjourned to assist in sentencing, although the concerns about absconding may be more serious following a conviction.
- Time limits apply to getting D’s through criminal justice system, if they take too long, right to bail becomes absolute.
When does the right to bail not apply?
- those appealing their conviction or sentence; or
- to defendants being committed for setence from Mags’ Court to CC.
Bail can be granted in both instances, it is simply the presumption does not apply.
1. they are guilty
2. sentence will be more than 6 months - low risk
They are finite and defined by law
Objections to bail?
- Prosecution can make as many or as few as it wishes and only needs to succeed in showing one.
- If court considers ground would be made out if D was released, but considers conditions put on release would aleviate concerns about grounds are no longer ‘substantial’, D should be granted conditional bail.
Indictable offences
Indictable:
1. all thefts
2. most violence offences
3. all main sexual offences
4. almost all drug offences
There are 3 primary grounds for objecting to bail for the large amount of offences that classify as indictable.
Test set out in Bail Act 1976, schedule 1, para 2:
What are the ‘big 3’?
If D was released on bail, substantial grounds for believeing
- fail to attend a subsequent hearing (failure to surrender to custody);
- commit further offences on bail; and/or
3.** interfere with witnesses**, or otherwise obstruct course of justice. e.g. witness intimidation or destruction of evidence.
What is the threshould for ‘substantial grounds’ for believing?
with regards to objections for bail by prosecution
- Not a particularly high test.
- It is not for court to conclude that D would behave in way specified in that ground, or even D’s behaviour would be more likely that not to include that ground.
- It is only necessary to show that the fears of behaviour happeneing have substance and merit.
- No formal rules on giving evidence as enquiry is a factual one.
- Pros + defence will give evidence. Witnesses can be called, hearsay evidence is permitted.
- Magistrates have inquisitorial role and may ask Qs.
What is the final filter on considering bail under one of the big 3 objections?
No real prospects
- Bail should not be removed if D has no real prospects of recieving a custodial sentence.
- If there is no real prospect of sentence for offence being custodial, then the ground of objection cannot succeed.
- The big 3 grounds are available for any indictable offenece (carrying imprisonment).
What are the objections to bail for summary offences?
General rule:
They are only available if a D, having being given bail, has breached a condition of that bail in these proceedings or has a conviction for ‘fail to surrender’ in their past.
- Logic is that for offences of lesser seriousness, it is broadly assumed that D would not any of big 3.
- The grounds therefore are only activated by a trigger event - namely the D arrested for breach of bail.
e.g. D breaches a condition of bail (didn’t sign on at police station regularly) - at this point in proceedings, objection to bail can be raised on the big 3 grounds.
After the 3 main grounds, the next most common grounds are:
Need not be granted bail
- a remand in custody would be for D’s own protection;
- the court has insufficient info to deal with the issue of bail, and so remands in custody for a (short) period for the production of sufficient evidence; and/or
- the defendant is already serving a sentence in custody.
For these 3 grounds, the test is simply that D ‘need not’ be granted bail if one of these coniditons exist.
In addition to big 3 and the 3 ‘need not’ be granted bail objections:
Specialist grounds
- serious cases with high penalties;
- cases of a particular nature that effect the assessment of the risk posed by a D on bail;
(Ds who might commit offences + cause physical or mental injury to an ‘associated person’). - cases where D infringes bail;
- the remaining cases - dealt with in relation to their classification.
1. murder + rape
2. drugs + domestic violence
Overview of objections to bail
Big 3 (substantial grounds)
Indictable only:
The big three grounds
1. failure to surrender
2. commit further offences on bail
3. interfere with witnesses/evidence
Summary:
* Previous conviction for failure to surrender
* Trigger event - D being arrested for breach of bail
‘Need not’ be granted bail
1. remand in custody for D’s own protection
2. court has insufficient info to deal w bail (needs to gather evidence)
3. D already serving in custody
Specialist grounds
1. serious cases with high penalties; and
2. cases of a particular nature that affect the assessment of the risk posed by a D on bail.
Can Mags grant bail if D is charged with murder?
No
only Crown Court judge can
D may not be granted bail unless there are exceptional circs to justify
What are the factors that should be taken into account when considering the grounds for objection to bail?
- the nature and seriousness of the offence and the likely sentence
- the character of the D, D’s associations and community ties
- D’s past bail record - has D absonded in past? committed offences on bail?
- strength of evidence - D who thinks they will be acquitted is less likely to abscond.
b. pre-cons, drug addiction, friends with crim records, married w fam?
Is bail object on a ground or a factor?
Although factors are relevant, the utlimate denial of bail must be on the basis of a legitimate ground of objection.
What are bail conditions?
- a person granted bail is under a duty to surrender to custody by attending court at the time + date specified.
- Court can impose ‘such conditions as appears necessary’ - no limit.
- Before attaching a condition, court must consider if the condition is:
1. relevant
2. proportionate and
3. enforceable.
Why are bail conditions attached to bail?
- To overcome any objections to bail
- Because the condition would lessen any risk associated to granting bail
ECHR article 5(3)
Every person who has been arrested or detained must be brought promptly before a judge.
Entitled to trial within a reasonable time or to release pending trial.
Release may be conditioned by guarantees to appear for trial. This makes it permissible to attach conditions to grant the bail.
What are the common bail conditions?
- Residence at a given address
- Curfew
- Reporting to a local police station at given times
- Surety
- Security
- Restriction on where a defendant may go during bail
- Restriction on who the defendant might have contact with during bail
- Electronic monitoring (tagging)
- Bail hostels
- Surrender of passport
(2) prevent burglaries night (4) 3rd party offers £ (5) D/3rd offers £
