SQE Criminal > Bail > Flashcards

Bail Flashcards

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1
Q

Procedure for disputing bail

A

Send a copy of the completed form to the Crown Court, the magistrates’ court and the prosecutor as soon as practicable after the decision to remand.

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2
Q

The CPS will apply a two-part test to determine whether or not the suspect should be charged:

A

(a) evidence:
there must be sufficient evidence to provide a ‘realistic prospect of conviction’; and
(b) public interest:
if there is sufficient evidence, the CPS will then need to determine if it is in the ‘public interest’ to charge the suspect, or whether the matter should be dealt with other than by way of charge

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3
Q

Bail

A

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

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4
Q

Who can grant bail for a murder judge?

A

a Crown Court judge ONLY

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5
Q

Requirement for a Crown Court judge to grant bail for murder

A

the Crown Court judge must be satisfied that there is no significant risk that the suspect, if released, would commit an offence that would be likely to cause physical/mental injury to another person

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6
Q

When is a surety an advisable bail condition?

A

To overcome absconding

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7
Q

Who are the courts unlikely to accept as a surety?

A

a person with a criminal record, who lives a long distance from D or who has no financial means.

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8
Q

Can a solicitor stand as surety for D?

A

No, as a matter of PCON

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9
Q

Which bail ground does a security seek to overcome?

A

Absconding, as they are unlikely to be ok with forfeiting the security they have handed over to the court

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10
Q

Which two conditions are recommended to prevent both the D absconding and committing offences on bail?

A
  • Reporting to a police station
  • Residing at a specific address that the police can visit early/late at night
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11
Q

Main aim of a curfew bail condition

A

Prevents D committing offences on bail

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12
Q

Which two conditions are recommended to prevent both D committing offences on bail and interfering with a witness?

A
  • non-communication with prosecution witnesses
  • restriction on entering specified areas
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13
Q

Main aim of making D surrender their passport

A

They cannot leave the UK - only likely to be useful in serious cases where they are known to have substantial financial assets abroad or criminal contacts outside the UK

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14
Q

Electronic monitoring can only be imposed to

A

monitor compliance with another bail condition eg a curfew or exclusion zone

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15
Q

EM can only be imposed if the court is satisfied that:

A

a) the person would not be granted bail without EM; and
b) the necessary arrangements for EM are in place.

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16
Q

What is the min age for EM?

A

12 and over, although the threshold for juveniles to be subjected to EM is much higher than for adults

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17
Q

A D who is refused bail by the M’s court may appeal against this decision to the C Court provided the Ms have issued the

A

certificate of full argument

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18
Q

Certificate of full argument

A

the Magistrates must record their reasons for either refusing bail or granting bail subject to conditions and give a copy to the D

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19
Q

Failure to surrender is also known as

A

absconding

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20
Q

If D did have a reasonable cause for failing to surrender, they will still be guilty of an offence unless they surrendered to custody…

A

as soon as it was reasonably practicable for them to do so

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21
Q

In R v Scott, a D was charged with failing to surrender because he had arrived

A

half an hour late for a hearing

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22
Q

Procedure for applying for bail at a contested bail hearing

A

The prosecution will start by outlining their objections to bail, identifying the relevant ground(s) they are relying on and applying the relevant factors to support that ground(s). The defence will then try to counter these objections and will usually suggest a package of realistic conditions in support of their application for bail.

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23
Q

2 offences of absconding

A

(1) failing without reasonable cause to surrender to custody

(2) having a reasonable cause for failing to surrender but then failing to surrender as soon as it was reasonably practicable to do so

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24
Q

once the defendant’s case has been sent to the Crown Court, the
magistrates’ court will no longer have jurisdiction to

A

hear a further bail application

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25
Does breaching a bail condition amount to a criminal offence?
No
26
certificate of full argument
A record of the magistrates’ decision for a bail application given to the defendant - required that they give reasons if they refuse bail or grant bail subject to conditions
27
Notice of application to the Crown Court to grant bail
- must be sent to the Crown Court, M's court and served on the CPS - must specify the decision D wants the Crown Court to make - state each offence that D is charged with - explain why CC should grant bail - explain any further info or new legal argument since M's decision - set out any suggested bail conditions
28
If the prosecution oppose D's appeal to the Crown Court to grant bail, they must
notify the CC and the defence of the reasons why they are opposing the appeal
29
Timeline for the Crown Court to hear a bail appeal
the bail appeal should be heard ASAP and no later than the business day after it was served
30
What documents will need to be before the Crown Court judge when hearing a bail application?
(a) the notice of application; (b) the ‘certificate of full argument’; and (c) a record of the defendant’s previous convictions
31
CPS can only appeal bail where D has been charged with an imprisonable offence. The ground for appeal is that it is a case of
'grave concern'
32
3 options for remand
(1) Remand in custody (2) Remand on bail with conditions attached; or (3) Remand on unconditional bail
33
the presumption in favour of bail
the court MUST presume that the defendant is entitled to bail
34
Bail can only be refused if
an objection is properly made out
35
The right to bail does not apply to (2)
(a) those appealing their conviction or sentence; or (b) defendants being committed for sentence from the M's Court to the Crown Court
36
3 main grounds for objecting to bail for indictable offences
(a) fail to attend a subsequent hearing (failure to surrender to custody); (b) commit further offences on bail; and/or (c) interfere with witnesses, or otherwise obstruct the course of justice eg witness intimidation or destruction of evidence and there must be 'real prospects' of D receiving a custodial sentence
37
the ultimate denial of bail must be on the basis of a
legitimate ground of objection
38
mandatory factors to consider for the 3 main grounds
- the nature and seriousness of the offence and likely sentence - D's character, associations and community ties - D's bail record - strength of the evidence / likelihood of custodial sentence
39
Threshold for est a ground to object bail
show that the fears of the behaviour happening have substance and merit
40
Give examples of 'cases of a particular character'
drugs and domestic violence
41
The defendant "need not" be granted bail if one of these 3 conditions exist
Need not be granted bail: (a) a remand in custody would be for D's protection; (b) the court has insufficient information to deal with the issue of bail, and so remands in custody for a (short) period for the production of sufficient evidence; and/or (c) D is already serving a sentence in custody
42
If D is accused of murder or attempted murder, rape, serious sexual offences etc and has a previous conviction in a similar category, they will not be granted bail UNLESS
there are exceptional circumstances to justify it
43
If D was either already on bail when they committed the offence and/or fails to surrender, D may not be granted bail UNLESS
there is no significant risk of further offences being committed or failure to attend
44
Give egs of cases with particular characteristics that affect risk
eg: - D is charged with an offence that suggests D would cause injury to a partner or family member; - drug abuse
45
How does drug abuse affect D's likelihood of bail?
If the drug test is positive for Class A drug when the offence happened AND the offence relates to a Class A or was motivated by drugs, the Court may NOT grant bail unless there is NO significant risk of D committing an offence on bail
46
Who can be "an associated person" of the defendant?
spouse, partner or family member
47
If D absconds whilst on bail for an indictable offence, will they be granted bail again?
No, bail need not be granted again, unless it is pre-conviction and there are no realistic prospects of a custodial sentence
48
Is there a limit to the bail conditions that the court can impose?
No, the court can impose 'such conditions as appear necessary'
49
Bail conditions must be
relevant, proportionate and enforceable
50
Common bail conditions
- Residence at a given address - Curfew - Reporting to a local police station at given times - Surety - Security - Electronic monitoring - Bail hostels - Restrictions on contacting certain people - Restrictions on visiting certain areas/addresses - Surrender of passport
51
A surety condition is aimed at overcoming the bail ground of
absconding
52
Surety
A person who enters into a 'recognisance' of money with the court and is obliged to use every reasonable effort to ensure that D attends court
53
Bail conditions to prevent D from absconding
- Security - Surety - Reporting to a police station - Residency requirement - Surrendering passport
54
Grounds that aim to prevent D from committing offences on bail
- Reporting to a police station - Residency - Curfew - Non-comms with prosecution witnesses - Restriction on entering specified areas
55
Grounds that aim to prevent D from interfering with a witness
- Non-comms with prosecution witnesses - Restriction on entering specified areas
56
Who can apply to vary bail conditions?
Either party can apply to the court which granted bail. They must give advance notice to the other party.
57
Why may the court agree to vary a bail condition?
if the parties agree on the variation
58
Which bail breach is a criminal offence?
failing to surrender to custody
59
Failure to surrender
Failure to surrender to custody without reasonable cause
60
Possible sentence for failure to surrender
punishable summarily by up to 3 months' imprisonment and/ or an unlimited fine or 12 months and/ or an unlimited fine on indictment.
61
Number of bail attempts if D is on trial in the M's court
2 attempts at getting bail at the magistrates' court, and 1 attempt on appeal to the Crown Court.
62
Once D has applied to M's court for bail twice, what must they secure from M's court before appealing to the Crown Court?
certificate of full argument
63
Contents of the certificate of full argument
a short summary that the magistrates produce so that the Crown Court knows what has transpired in the court below
64
How quickly are bail appeals heard in the Crown Court after the appeal notice is served?
one business day after
65
What advice would you give to a client who urgently needs to be granted bail?
They can elect to apply directly to Crown Court after the Magistrates reject their first application, rather than waiting a whole week for the second attempt. The Crown Court will hear their appeal one business day after the appeal notice is served.
66
Prosecution process to appeal against the 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
67
Who hears the appeal if the prosecution appeals to the grant of bail by the Crown Court?
a High Court Judge sitting in the High Court
68
What is the incentive for the prosecution to bring cases to trial within a proper time frame?
the prosecution cannot hold a defendant beyond the ‘custody time limits' unless the court has sanctioned an extension
69
Custody time limits for trials in M's court for summary or EW offences
56 days
70
Custody time limits for trials in Crown Court for EW or indictable-only offences
182 days, less any days spent in custody prior to the case being sent to the Crown Court
71
What MUST happen before the custody time limit expires?
the trial must start
72
If the custody limits expire, D will be released, UNLESS
the prosecution applies to extend the time limits and can show that: (a) it has acted with 'all due diligence and expedition'; and (b) there is 'good and sufficient cause' to have the defendant further remanded into custody.
73
a defendant may not be remanded in custody for more than
8 clear days (at a time)
74
When may the court 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.
75
custody time limits in the magistrates’ court (before trial)
- 70 days before trial for an EW offence; and - 56 days before trial for a summary-only offence
76
What will the prosecution have to prove to successfully apply to extend the pre-trial custody time limits?
must show that on the balance of probabilities: - there is good and sufficient cause to extend custody time limits; and - it has acted with due diligence and expedition
77
The second appearance must happen within how many days of the first appearance?
within 8 days
78
Onward remand of the defendant, between the second appearance and trial
must be formally remanded into custody every 28 days until their trial. This can be in their absence.
79
Examples of breaching the requirement NOT to make indirect contact with a specified person
social media, asking a friend or family member to make contact for you
80
Where is D normally remanded in custody?
prison or remand centre; can be remanded in police custody for up to 3 days if police suspect their involvement in other matters and wish to interview them
81
Max. length of remand on bail
D who is on bail may be remanded prior to conviction for any period of time, subject to D’s consent.
82
Following conviction, D may be remanded in custody before sentence for successive periods of not more than
3 weeks
83
When will the M's court NOT have the power to remand D in custody before trial?
they have not been convicted of an offence and there is no real prospect of a custodial sentence
84
If D is charged with a non-imprisonable offence, is it possible that bail would not be granted?
Extremely rare for D charged with a non-imprisonable offence not to be granted bail
85
Electronic monitoring may only be considered by the court once it is satisfied it would otherwise
remand the person into custody
86
If bail is granted subject to a surety, what evidence will the court need to hear?
the court will hear evidence on oath from the surety to ensure that they are suitable to act in that capacity
87
If the defendant fails without reasonable cause to surrender to custody, they will be guilty of the offence of
absconding
88
Sentence for failure to surrender to bail should be imposed...
ASAP
89
If D breaches bail is arrested, who decides whether they are charged with FTS?
the CPS
90
Defendant who is arrested for breaking bail conditions or being not likely to surrender to bail will be detained in police custody and brought before a M's court within
24 hours
91
A defendant who has breached their bail conditions without good reason is likely to be
remanded in custody
92
2-stage approach adopted by magistrates in a hearing re breach of bail
(1) Has D breached the bail conditions? (2) If yes, should D be remanded in custody or on bail pending hearing?
SQE Criminal
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