CLP - Bail

What is bail?

'the release of a person subject to a duty to surrender to custody at an appointed time and place'.

When does the right to bail apply?

- at all appearances in court up to conviction/acquittal

- following conviction if the case is adjourned for reports prior to sentencing

What is remand?

- D is sent away from the court and told to come back another day

- may be in custody or out on bail

How can P get D remanded in custody?

- P applies for D to be remanded in custody in mags court at first hearing

- must start by presenting their objections to bail, due to presumption in favour of bail

How can D get out on bail?

- P will first raise their objections to bail

- defence will then apply for bail

- this will all happen in mags court at first hearing

Who can grant bail for murder cases?

CC Judge - not the mags court

What is the benefit of conditional bail for D?

Judge more willing to grant this if certain conditions alleviate their concerns (e.g., will not speak to henchmen)

What is the presumption re bail?

- There is a right to bail, can only be refused if there is a genuine objection

- presumption continues post-conviction

- appears to be removed for murder cases (only murder, presumption still there for attempted murder)

When does the presumption of the right to bail not apply?

a) those appealing their conviction or sentence;

b) Ds being committed for sentence from MC to CC.

c) murder

Note: bail CAN be granted, but the presumption does NOT apply in these cases

What are the divisions of offences for the purpose of bail objections?

There will be different grounds of objections allowed for each class.

- indictable offences

- summary cases, imprisonable

- summary cases, non-imprisonable

What are the three main grounds for objecting to bail for indictable offences?

if D is released on bail, there are 'substantial grounds' for believing that the defendant would either:

1. fail to attend a subsequent hearing

2. commit further offences on bail

3. interfere with witnesses or otherwise obstruct the course of justice e.g., destroying evidence

What is the threshold for there being 'substantial grounds' to believe that D would fail to attend a later hearing etc?

- not a high test

- enough for the concern about the behaviour to have substance and merit

- prosecution and defence will both make representations, and can call witnesses and use hearsay evidence (rare)

What is the 'no real prospects' filter when considering bail for indictable offences?

- this is a filter on considering bail

- bail should not be removed on one of the main three grounds (failure to surrender to custody, further offences, obstructing course of justice) where there are 'no real prospects' of D receiving a custodial sentence

What are the grounds for objecting to bail for summary offences?

the 'big three' grounds will only be applicable if D breaches a condition or has a previous conviction for 'failure to surrender to custody' in the past

What are the three grounds for objecting to bail that mean that D 'need not' be granted bail? (not the big three)

- remand in custody would be for D's own protection

- court has insufficient information to deal with issue of bail, remand in custody gives time for production of evidence

- D is already serving a sentence in custody

What are the other grounds for objection to bail (not the big three or the other three)?

- serious cases with high penalties

- cases of a certain nature that affect the assessment of the risk posed by a D on bail (e.g., Ds who might injure an 'associated person', usually DV cases)

What are the factors that help the court determine if the grounds for objection to bail are made out? (not grounds in themselves)

1. nature and seriousness of the offence and likely endpoint (e.g., sentence)

- if convicted of a serious crime, D will go to prison for 40 years and therefore is likely to abscond

2. D's character, previous convictions, associations and strength of community ties

- character can include drug addiction

3. D's previous bail record

4. strength of the evidence

- D who thinks they are likely to be acquitted is less likely to abscond

Will D be granted bail if D is charged with murder and has a pre-conviction for murder, attempted murder, rape, attempted rape or serious sexual offence?

Will not be granted unless there are exceptional circumstances

Will D be granted bail if he is charged with murder?

may not be granted unless there is a no significant risk of D causing an offence likely to cause mental or physical injury

Will D be granted bail if he has been charged with attempted murder, rape, attempted rape or serious sexual offence, manslaughter

and has a pre-conviction for murder, attempted murder, rape, serious sexual offence?

Will only be granted bail if there are exceptional circumstances to justify it

Will D be granted bail if they are charged with an offence that suggests D would cause injury to a partner or family member?

D need not be granted bail if court believe there are substantial grounds to believe that D would commit an offence on bail by engaging in conduct that would or be likely to cause physical or mental injury to an associated person (e.g., spouse, family member)

Will D be granted bail if they are charged with an offence related to abuse of drugs?

where test shows D has class A drug in their body, and the offence related to drugs/motivated by drugs, court may not grant bail unless there is no significant risk of D committing an offence on bail

Give examples of common bail conditions:

- residence (must live and sleep there)

- curfew

- reporting to police station

- surety (someone else forfeits money if they abscond)

- security (D or other puts up money to be forfeited)

- restrictions on D's movement or who D may contact

- electronic monitoring

- bail hostel (if D does not have fixed address, must also follow hostel rules)

- surrender of passport.

What is the consequence of breaching bail conditions?

- accused may be arrested under Bail Act 1976 s.7(3).

- Police have power of arrest over those in breach or about to be in breach, even though breach of bail conditions is not an offence

- bail conditions may be tightened or bail may be withdrawn

Which one breach of bail conditions is an offence?

- it is an offence to fail to surrender to custody without reasonable excuse

punishable summarily by:

- up to three months' imprisonment and/ or an unlimited fine

- or 12 months and/ or an unlimited fine on indictment.

What 3 things must bail conditions be?

Relevant, proportionate and enforceable

How are the bail conditions varied?

- either defence or prosecution can make an application to the court that granted bail, having given notice to the other party

- will not require a hearing if both parties agree

How many bail conditions can the court impose?

no limit - court can impose 'such conditions as appear necessary'

How many times can a D being tried in mags court attempt to get bail?

1. 2 attempts in mags court

2. 1 attempt on appeal to the CC

- an appeal notice will be served, which gives one day's notice

- must get certificate of full argument from mags court, giving reasons for their decisions

3. another attempt in mags court if there has been a change in circumstances

- can do this without having to go to CC first

When will appeal for bail be heard?

- as soon as practicable

- and in any event no later than the business day after it was served unless the Crown Court otherwise directs

What is the TOTAL time limit for custody for magistrates' court cases (unless court has granted an extension)?

56 days unless court grants extension

What is the process for bail when D is remanded into custody at their first hearing in the mags court?

1. First appearance- D is remanded into custody

2. Second appearance (in person or via live link) must be within eight clear days of the first appearance. D can make another bail application.

3. Onward remand- must be formally remanded into custody every 28 days until their trial. This can be in their absence. No video link, mags just say the words 'I remand X for a further 28 days in their absence'.

4. Trial- must be within 56 days of the first appearance unless the prosecution successfully apply to extend the custody time limit.

What is the time limit for custody for Crown Court cases (unless court has granted an extension)?

182 days unless court grants extension

- less any days spent in custody prior to the case being sent to the Crown Court (usually zero).

What happens when time limit for holding D in pre-trial custody expires? what must P show?

- D will be released

- unless P successfully applies to extend the time limit

- must be able to show they have acted with 'all due diligence and expedition' and that there is 'good and sufficient cause' to have the defendant further remanded into custody.

When will D have their first hearing if denied bail by police?

D will appear in front of next available mags court

How does the prosecution appeal against granting of bail?

a) prosecution must have opposed bail originally

b) offence must be punishable by imprisonment

c) prosecution indicates orally at the hearing when bail is granted that they will appeal (the defendant is then held in custody)

d) intention to appeal is confirmed in writing and served on the court and defence within two hours

e) appeal is heard within 48 hours - excluding weekends

f) appeal is heard by a Crown Court Judge (for appeal re Crown Court granting bail, appeal is heard by HC judge in HC)

When is the start of the trial in the mags court?

when the court begins hearing evidence from the prosecution.

When is the start of a trial in the CC?

When a jury in sworn