Bail

Question 1

What is the right to bail and when does it apply?

Answer 1

There is a presumption that the defendant is entitled to bail under s.4 of the Bail Act 1976. It applies:
* after D has been charged with an offence but before trial;
* After conviction when case adjourned before sentencing;
* on alleged breach of community service order.

The presumption DOES NOT apply to:
* those appealing their conviction or sentence;
* defendants being committed for sentence from Mag Court to Crown Court;
* murder, rape, serious sexual offences or offences carrying life imprisonment;
* where D has committed an indictable offence whilst on bail;
* D remanded into custody for their onw protection;
* D already serving sentence in custody.

Question 2

What are the 3 grounds on which the prosecution can object to bail?

Answer 2

Where the prosecution has substantial grounds for the belief that, if granted bail, the defendant will:

1. Fail to surrender;
2. Commit further offences on bail; and/or
3. Interfere with witnesses or otherwise obstruct the course of justice.

Question 3

Are there any restrictions on when prosection can object to bail on 3 grounds?

Answer 3

• Can only be used in relation to indictable offences.
• Bail should not be removed under these grounds where there is no real prospect of D receiving a custodial sentence.

Question 4

Which factors must be considered when deciding whether to grant bail under the big 3 grounds?

Answer 4

1. Nature and seriousness of the offence and likely disposal;
2. Ds character, antecedents (prior offences), associations and community ties
3. D’s prior bail record
4. Strength of evidence against D
5. All the other circumstances.

Question 5

What is the procedure for the bail application hearing?

Answer 5

There are no formal rules of evidence, representations will be made by both sides and both sides can call witnesses or produce documentary evidence. Hearsay evidence is permitted and the magistrates have an inquisitiorial role.

Question 6

When can the prosecution object to bail in respect of a summary only offence?

Answer 6

1. D breaches condition on bail and bail now being reassessed;
2. D has a past conviction;
3. D has a FTS in their past.

Question 7

What if D was already on bail at the time of the offence?

Answer 7

1. If offence indictable = court need not grant bail
2. If offence summary imprisonable = court need not grant bail if substantial grounds for believing D would commit further offences
3. If D absconds whilst on bail for an indictable offence, bail need not be granted again unless this was prior to conviction and there are no real prospects of a custodial sentence.

Question 8

What happens as a result of absconding from bail?

Answer 8

A person is under a duty to surrender to custody under s.3 of the Bail Act 1976; therefore, surrender will always be a condition of bail.

FTS is a criminal offence punishable by imprisonment or a fine.

Question 9

What should the court consider when imposing conditions on bail?

Answer 9

1. Whether the conditions are necessary, relevant and proportionate to prevent FTS, further offending or interference with witnesses;
2. The educational and employment obligations of the defendant.

Question 10

What are some examples of conditions which might be imposed on bail?

Answer 10

• Residence at given address
• Report at police station each day / week etc.
• Curfew
• Bail hostel
• Security
• Surety
• Restriction on movement
• Restriction on contact
• Electronic monitoring
• Surrender of passport

Question 11

What happens when bail conditions are breached?

Answer 11

Not a criminal offence; however, there is a power of arrest attached so that D can be arrested if they have breached or are about to breach bail conditions. They will then be brought before the Mags court again and bail conditions may be tightened or D remanded into custody.

Question 12

How many times can a defendant make a bail application in the Mags court?

Answer 12

aIf bail is refused the first time, can repeat the same application at the next hearing. 1 week later. If this also fails, D can appeal to the Crown Court as of right or find fresh points (e.g different conditions)

Question 13

How many times can a defendant make a bail application in the Crown Court?

Answer 13

Requires certificate of argument from the Magistrates Court + appeal is heard 1 business day after the appeal notice is served.

If this fails, can only apply again if there is a change of circumstances and, if only use 1 hearing in Mags court, the second attempt in Mags is lost when appealed to Crown Court.

Question 14

What are the conditions for the prosecution to appeal bail?

Answer 14

1. Prosecution must have opposed bail originally;
2. Offence punishable by imprisonment;
3. Prosecution indicates intention to appeal orally at original bail hearing;
4. Intention to appeal confirmed in writing + served on court and defence within 2 hours;
5. Appeal heard within 48 hours, excluding weekends;
6. Appeal heard by CC judge.

Question 15

How does onward remand work in the Mags Court?

Answer 15

If D is remanded into custody at the first hearing and their trial will take place in the Mag Court, D must be brought back into court within 8 clear days so another bail application can be made.

After D’s second appearance, they must be brought back into court every 28 days for onward remand.