When will there need to be one or more adjournments before case concluded?
Many criminal cases are
- unlikely to be completed on the first occasion
- when defendant appears before the magistrates’ court
Only usually happens
- in the case of a straightforward summary or either-way offence where
- the defendant pleads guilty and the
- magistrates sentences them immediately
In any other type of case, will need be at least one adjounrnment.
What happens when a case is adjourned?
the defendant will be remanded.
a ‘remand’ is an adjournment where the court will want to ensure that the defendant attends the next hearing
In what ways can defendant be remanded?
(a) a remand in custody;
(b) a remand on bail with conditions attached to that bail; or
(c) a remand on unconditional bail.
Remands: remand in custody
How long may defendant be remanded in custody?
Basic rule: may not be remanded for more than eight clear days at a time
- if the defendant’s case is still in the magistrates’ court, where there are successive remands in custody
- the court may further remand him without him being brought before the court, provided they have consent to this have legal representation
- BUT: notwithstanding this procedure for a remand without his being brought before a court, he must be brought before the court on at least every FOURTH application for his remand
- THUS: the defendant has to appear in court at least once a month
In addition, the 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 (e.g., the case management hearing)
Maximum custody time limits
The overall maximum period of remand in custody (normally referred to as the custody time limit)
- in the magistrates’ court is 70 days before trial
- and 56 days before trial for a summary-only offence
However, if the case involves an either-way offence
- and the allocation hearing takes place within 56 days
- the custody time limit for the either-way offence is reduced to 56 days
Maximum custody time limit: extension?
Prosecution may apply to the court to extend the custody time limit
Prosecution will need to show on the balance of probabilities that
- there is good and sufficient cause to do this and
- it has acted with due diligence and expedition
Formalities
- may be made orally or in writing
- BUT: a written notice of intention must be served on the court and the defendant not less than two days before the hearing in the magistrates’ court
If prosecution application granted
- defendant has a right of appeal to the Crown Court
If proseuction application unsuccesful
- prosecution may appeal to the Crown Court against magistrates’ refusal
Custody time limit: what if time limit has expired and application to extend is unsuccesful?
the defendant must be released on bail until his trial
Where will the defendant be kept whilst in custody?
Defendants who are remanded in custody will normally be kept at
- a prison
- or remand centre.
However, Magistrates’ Courts Act 1980 allows magistrates’ court
- to remand a defendant to police custody
- for up to three days
- where necessary for the purposes of making enquiries in relation to offences other than the offence for which the defendant has been charged
- while at station, entitled to same rights as discussed in Unit 1
- As soon as the need to make enquiries has ceased: defendant made subject to such a remand must be brought back before the magistrates
Remands on bail: may a defendant who is on bail be remanded prior to conviction?
A defendant who is on bail
may be remanded prior to conviction for any period of time
subject to the defendant’s consent.
Remands after case committed or sent to Crown Court
Time limits?
may be remanded in custody or on bail until the case comes before the Crown Court
Remands after conviction
Time limits?
A defendant may be remanded in custody before sentence
- for successive periods of not more than three weeks
A defendant may be remanded in bail
- for successive periods of not more than four weeks.
The right to bail: presumption?
Pursuant to Bail Act 1976, presumption that bail will be granted to the following types of defendants
- (a) all defendants prior to conviction;
- (b) defendants who have been convicted if their case has been adjourned for the court to obtain reports before sentencing
- (c) defendants who are appearing before the court for breach of a community sentence.
UNLESS: one of the exceptions apply
Presumption does not apply to defendants
- (a) who have been committed to the Crown Court for sentence
- (b) who are appealing against conviction or sentence
Also does not apply to defendants charged with/who have been convicted of the most serious types of offence (other flashcard)
The right to bail: what if the defendant charged with the most serious type of offence?
If defendant
- charged with one of a number of specified offence
- OR been previously convicted of any of these specified offences
a court may grant bail to that defendant only if exceptional circumstances exist
The specified offences are:
- (a) murder
- (b) attempted murder
- (c) manslaughter
- (d) rape
- (e) attempted rape
- (f) a number of other serious sexual offences.
The right to bail: what if the defendant charged with MURDER and makes application for bail?
Only a Crown Court judge may grant bail
- magistrates’ court must transfer the defendant to the Crown Court (in custody)
Crown Court judge
- must then, within 48 hours
- make a decision as to whether to grant bail
May not be granted unless the court is of the opinion
- there is no significant risk of the defendant committing
- whilst on bail
- an offence likely to cause physical or mental injury to another
Exceptions to the right of bail: restriction on the exceptions?
(a) the defendant has attained the age of 18;
(b) the defendant has not been convicted of an offence in those proceedings; and
(c) it appears to the court that there is no real prospect that the defendant will be sentenced to a custodial sentence in the proceedings.
In such circumstances
- a magistrates’ court will not have power to remand a defendant
- in custody before his case is dealt with
Exceptions to the right to bail: offences triable only on indictment and either-way imprisonable offence?
Paragraphs 2 to 7 of Part 1 of Sch 1 to the Bail Act 1976
[1] The defendant need not be granted bail if the court is satisfied
- the defendant should be kept in custody for their own protection
- or, if they are a child or young person, for their own welfare
[2] The defendant need not be granted bail if the court is satisfied
- has not been practicable to obtain sufficient information
- for the purpose of taking the decisions required by this Part of this Schedule
- for want of time
[3] The defendant need not be granted bail if
- having previously been released on bail in, or in connection with, the proceedings
- defendant has been arrested in pursuance of section 7 (other flashcard)
[4] The defendant need not be granted bail if the court is satisfied
that there are substantial grounds for believing
that the defendant, if released on bail (whether subject to conditions or not) would:
- (a) fail to surrender to custody, or
- (b) commit an offence while on bail, or
- (c) interfere with witnesses or otherwise obstruct the course of justice, whether in relation to himself or any other person.
[4] is are most common grounds upon which CPS normally object to bail
Exceptions to the right to bail: offences triable only on indictment and either-way imprisonable offence?
What are the most common grounds upon which CPS normally object to bail?
There are substantial grounds for believing that the defendant will, if released on bail:
- (a) fail to surrender to custody;
- (b) commit an offence whilst on bail; or
- (c) interfere with a witness in the case (or otherwise obstruct the course of justice).
This is a high threshold
Court must take into account the following factors
- (a) the nature and seriousness of the offence (and the probable sentence the defendant will receive for it);
- (b) the character, antecedents, associations and community ties of the defendant;
- (c) the defendant’s record in respect of previous grants of bail in criminal proceedings; and
- (d) the strength of the evidence against the defendant.
The nature and seriousness of the offence and the probable method of dealing with the defendant for it
The strength of the evidence against the defendant
Meaning and when is it likely to be relevant to prosecution argument against bail?
Most likely relevant to prosecution argument
- there are substantial grounds for believing that the defendant would
- fail to surrender to custody
If defendant has been
- charged with serious prison offence that likely to result in prison sentence if convicted
- evidence against defendant is strong
CPS may argue defendant will fail to surrender to custody
The defendant’s character and antecedents
Meaning and when is it likely to be relevant to prosecution argument against bail?
Reference to the defendant’s previous convictions
Criminal record may be raised by the CPS when bail is being considered,
- to argue that there are substantial grounds for believing that the defendant will commit further offences
- (or to argue substantila grounds to believe will fail to surrender to custody)
Likely to be relevant if
- history of committing the same (or similar) types of offence with which they have been charged
- if the reason for the defendant’s previous offending is ongoing (e.g., fund a drug addiction)
- defendant has previously committed offences whilst on bail
The defendant’s associations
Meaning and when is it likely to be relevant to prosecution argument against bail?
e.g., defendant is known to associate with other criminals or a witness is known to the defendant
Prosecution may use this to suggest there there are ‘substantial grounds’ to believe
- they may commit further offences if released on bail
- may attempt to interfere with the witness
The defendant’s community ties
Meaning and when is it likely to be relevant to prosecution argument against bail?
Prosecution may use this to suggest there there are ‘substantial grounds’ to believe
- they will fail to surrender to custody
e.g., if the defendant is unemployed, has no relatives in the local area, has lived in the area only for a short time or is of no fixed abode
The defendant’s record in relation to previous grants of bail
Meaning and when is it likely to be relevant to prosecution argument against bail?
If a defendant has previous conviction(s) for the offence of absconding (failure to answer bail)
Prosecution likely to raise this to suggest there there are ‘substantial grounds’ to believe
- they will fail to surrender to custody
Exceptions to the right to bail: summary-only imprisonable offence?
Similar, but not identical, grounds and factors for refusing bail apply to these type of summary offences
Bail for these offences may be refused only on one or more of the following grounds:
- (a) failure to surrender (if the defendant has previously failed to surrender);
- (b) commission of further offences (if the instant offence was committed on bail);
- (c) fear of commission of offences likely to cause another person to suffer or fear physical or mental injury;
- (d) defendant’s own protection (or welfare if a youth);
- (e) defendant serving custody;
- (f) fear of failure to surrender, commission of offences, interference with witnesses or obstruction of justice (if the defendant has been arrested for breach of bail in respect of the instant offence); and
- (g) lack of sufficient information.
Exceptions to the right to bail: non-imprisonable offences?
Extremely rare for a defendant charged with a non-imprisonable offence not to be granted bail
Court may court may refuse bail to a defendant charged with a non-imprisonable offence only if:
[i] the defendant was granted bail in previous criminal proceedings but failed to answer this bail
- and the court believes that the defendant would again fail to surrender to custody;
[ii] the defendant needs to be kept in custody for
- his own protection
- or, in the case of a defendant under 18 years of age, for his own welfare
[iii] currently serving a custodial sentence in respect of a separate offence
[iv] the defendant was
- granted bail at an earlier hearing in the same proceedings
- BUT arrested either for failing to answer his bail or for breaking conditions
- AND court is satisfied that there are substantial grounds for believing that if released on bail
- (a) defendant would fail to surrender to custody
- (b) commit an offence or
- (c) interfere with witnesses or otherwise obstruct the course of justice
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1. Advising clients about the procedure and processes at the police station97
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2. Identification Procedures38
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3. Charging the Suspect (Charging suspects is not on the SRA’s syllabus for SQE1)2
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4. Representing Vulnerable Clients33
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5. Classification of offences9
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5. Public funding available to a defendant and applying for a representation order22
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5. First Hearings Before the Magistrates’ Court8
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6. Plea Before Venue and Allocation of Business Between the Magistrates’ Court and Crown Court28
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7. Bail58
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8. Case Management and Pre-trial Hearings45
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9. Principles and Procedures to Admit and Exclude Evidence122
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10. Trial Procedure in the Magistrates’ Court and Crown Court82
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11. Sentencing59
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12. Appeals Procedure42
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13. Youth Court Procedure45
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SBAQs to revise23
