Bail

Question 1

What are the 3 ways a defendant can be remanded?

Answer 1

a) a remand in custody; b) a remand on bail with conditions attached to that bail; c) a remand on unconditional bail.

Question 2

What is the general rule for length of time of remands in custody?

What are the 2 exceptions?

Answer 2

A defendant may not be remanded in custody for more than 8 clear days at a time.

1. Where D’s case still in MC and there are successive remands in custody, if D needs to be brought before the court on every fourth remand, they can be provided they have consented to this and have legal representation.
2. D can be remanded for up to 28 days if:
   - prev remanded for same offence; and
   - they are b4 the court; and
   - the court can set a date for next stage of proceedings.

Question 3

What are the overall maximum periods of remand in in the magistrates’ court for an either-way offence and SO offence?

Can the Pros apply to extend this?

Answer 3

EW: 70 days before trial (unless allocation within 56 days, then reduced to this.

SO: 56 days

Yes, CPS can apply to extend. Must show good + suff cause + acted with expedition + DD. Must serve written notice of intent on court & D at least 2days before hearing. If denied, P can appeal to CC / If granted, D can appeal to CC.

Question 4

What must happen once the custody time limit has expired and the prosecution has not made a successful application to extend Ds remand in custody in MC before conviction?

Answer 4

The defendant must be released on bail until his trial.

Question 5

Where will defendants who are remanded in custody before conviction normally be kept?

What are the two exception?

Answer 5

GR: a prison or remand centre.

1: police custody for up to 3 days if necessary to make enquiries re-other offences and must be brought back before magistrates as soon as enquiries cease. Entitled to same rights as under detention.

2. If D is on bail, can be remanded before conviction for any time subject to D’s consent.

Question 6

For how long may a defendant be remanded in custody at a time before sentence but after conviction?

For how long may a defendant be remanded on bail at a time before sentence but after conviction?

Answer 6

For successive periods of not more than 3 weeks.

For successive periods of not more than 4 weeks.

Question 7

Where are the law and procedural rules relevant to bail found?

Answer 7

Law: Bail Act 1976.
Rules: Part 14 of the CrimPR.

Question 8

Under s 4 of the Bail Act 1976, who is presumed to be granted bail?

Answer 8

All defendants before conviction, convicted defendants awaiting reports before sentencing, and those appearing for breach of a community sentence.

Question 9

What are the exceptions to the presumption of bail?

Answer 9

1. It does not apply to certain defendants (CC for sent/app conv/sent)
2. s25 CPJOA exception - most serious types of offences.
3. No real prospect of custody restriction

Question 10

To whom does the presumption in favour of bail not apply?

What is the s25 CJPOA 1994 exception to the presumption of bail?

What is the ‘No real prospect of custody’ restriction on exceptions to the presumption in favour of bail in relation to imprisonable offences?

Answer 10

Defendants committed to the Crown Court for sentence or
those appealing against conviction/sentence.

It applies to defendants charged with the most serious types of offence (Murder, attempted murder, manslaughter, rape, attempted rape, and other serious sexual offences.). Exceptional circumstances must exist for these offenders to be granted bail.

A magistrates’ court cannot remand a defendant in custody if they are over 18, not convicted, and there is no real prospect of a custodial sentence.

Question 11

Where a defendant is charged with murder and makes an application for bail, s 115 of the Coroners and Justice Act 2009 states that only who can grant bail to a defendant charged with murder?

Under s 114(2) of the Coroners and Justice Act 2009, when may bail not be granted to a defendant is charged with murder and makes an application for bail?

Answer 11

Only a Crown Court judge who must make a decision at to whether to grant bail within 48 hours of the defendant being transferred from MC.

Bail will not be granted unless the court believes there is no significant risk of the defendant committing an offence likely to cause physical or mental injury to another.

Question 12

What grounds may a court refuse bail for offences triable only on indictment and either- way imprisonable offence if satisfied under paragraphs 2 - 7 of Part 1 of Sch 1 to the Bail Act 1976?

Answer 12

If 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.
(High threshold - must be likely not just ‘may’)

3. D should be kept in custody for their own protection or, if they are a child or young person, for their own welfare.
4. It has not been practicable to obtain sufficient information for the purpose of taking the decisions required for want of time since the institution of the proceedings against them.
5. having previously been released on bail in, or in connection with, the proceedings, the defendant has been arrested in pursuance of section 7.

6ZA. If the defendant is charged with murder, the defendant may not be granted bail unless the court is of the opinion that there is no significant risk of the defendant committing, while on bail, an offence that would, or would be likely to, cause physical or mental injury to any person other than the defendant.

Question 13

What is the most common ground upon which the CPS objects to bail?

Answer 13

Substantial grounds for believing the defendant, if released on bail, will fail to surrender to custody, commit an offence, or interfere with a witness.

high threshold. It will not be satisfied if the court only believes the defendant may do any of these three things.

Question 14

What factors must the court consider in deciding whether the substantial grounds for refusing bail have been satisfied?

Answer 14

Nature and seriousness of the offence and probable sentence D will receive,

Character and antecedents, associations, community ties

Record regarding previous grants of bail

Strength of the evidence against them.

Question 15

Nature, seriousness of offence and probable method for dealing with D (and strength of ev against D) most likely to be relevant to a prosecution argument that there are substantial grounds for what?

Why?

Answer 15

For believing that the defendant would fail to surrender to custody if they were to be granted bail.

If the defendant has been charged with a serious offence that is likely to result in a prison sentence if they are convicted and the evidence against the defendant is strong, the CPS may they will abscond to avoid such custody.

Question 16

What does defendant’s character and antecedents refer to?

Answer 16

Previous convictions

Question 17

What may the CPS argue if a defendant has a history of committing similar offences?

When is it relevant?

Answer 17

That there are substantial grounds for believing the defendant will commit further offences if released on bail.

• A history of committing the same (or similar) types of offence to the one charged.
• Also if the reason for D’s previous offending is ongoing (e.g. a serial shoplifter who steals to fund a drug addiction), or,
• If D has previously committed offences whilst on bail.

Question 18

How may a defendant’s associations impact the CPS argument against bail?

What are examples?

Answer 18

If the defendant associates with criminals, it may suggest substantial grounds for believing they will commit further offences.

• If D is known to associate with other criminals / member of a criminal gang, the CPS may use this to suggest there are ‘substantial grounds’ to believe that they may commit further offences if released on bail, or;
• Associations of D are relevant if a witness is known to the defendant and there is a fear that the defendant may attempt to interfere with the witness, e.g. in domestic assaults when V is a relative of the defendant and there is a fear that the defendant may put pressure on V to ‘change their story’.

Question 19

If a defendant has previous conviction(s) for the offence of absconding (failing to answer their bail), the CPS is likely to raise this to suggest what?

Answer 19

That there are substantial grounds for believing that the defendant will fail to surrender if they are granted bail in the current proceedings.

Question 20

What does the strength of a defendant’s community ties indicate?

Example?

Answer 20

It may indicate whether there are substantial grounds for believing the defendant will fail to surrender to custody if released on bail.

• If D 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 CPS may argue that there is nothing to keep them in the area and nothing to prevent them from absconding.

Question 21

What should a defence advocate invite the magistrates to consider when applying for bail?

Answer 21

Grant conditional bail, if magistrates don’t want to grant bail on an unconditional basis.

Question 22

What does Section 3(6) of the Bail Act 1976 require regarding conditions must be necessary to prevent/ensure D does?

Answer 22

such conditions must be necessary to prevent/ensure what (x6)?:

a) prevent D from absconding;

b) prevent D committing a further offence whilst on bail;

c) prevent D interfering with witnesses / obstructing the course of justice;

d) ensure D makes himself available for the purpose of obtaining medical or other reports;

e) ensure D keeps an appointment with his solicitor; or

f) ensure D’s own protection / welfare (if U18) / in his own interests.

Question 23

Procedure for applying for bail:

1. What must the CPS representative provide to the defendant’s solicitor and the court if they object to bail?
2. CPS then does what?
3. D sol makes application for bail - how?
4. Who else may mag here from re evidence?
5. Mag then decide what?
6. Mag give what to D and record what?

Answer 23

1. All of the information in its possession which is material to what the court must decide (CrimPR, r 14.5(2)).
2. State its objection to bail and apply to the magistrates for the defendant to be remanded in custody. Provide copy of Ds previous convictions and outline grounds on which they object to bail by citing case details and SGs/factors.
3. D takes each of CPS grounds of opposition and responds by applying the same factors but rebutting.
4. Any other person in support of Ds application e.g. prospective employee of offeree of acom.

Mag then decide grant bail (cond/uncond) or custody remand. May need oath from surety.

Mag gives copy of decision to D. If refuse bail or grnat conditional must record reasons for refusal/conditions - certificate of full argument.

Question 24

What must be recorded if the magistrates refuse bail or grant conditional bail?

Answer 24

The reasons for the refusal or conditions, known as a ‘certificate of full argument’.

Question 25

What duty do magistrates have if bail is refused?

Answer 25

A duty to consider the question of bail at any subsequent hearing if the defendant is still in custody and the presumption in favour of bail still applies.

Question 26

Can a defendant's solicitor make a full bail application at each subsequent hearing?

Answer 26

No. Only at the first subsequent hearing after the initial refusal of bail.

Question 27

What kind of application can a defendant's solicitor make at the first application for bail hearing an after the initial one ?

Answer 27

A full application for bail using any argument as to fact or law, even if the same arguments were used in the first unsuccessful application.

Question 28

What kind of argument can be made at any subsequent hearing regarding bail applications?

Answer 28

The court need not hear arguments as to fact or law which it has heard previously. Further applications will only be possible in the magistrates' court if the defendant's case is still there. If sent to CC, arguments heard there.

Question 29

What series of bail applications is a defendant entitled to after being refused bail?

Answer 29

One further full bail application in the magistrates' court, re-using any argument re fact/law; if refused, a further application only if a new legal or factual argument is raised.

Question 30

Where must a defendant's appeal against bail refusal be made?

Answer 30

To the Crown Court, provided the magistrates have issued the 'certificate of full argument'.

Question 31

Why do most defence solicitors delay making an appeal to the Crown Court?

Answer 31

To maximize the number of potentially successful applications for bail by making 2 full applications before the magistrates' court first.

Question 32

D appeal against a refusal of bail 1. To which court does D sol appeal? 2. What must a defendant's solicitor complete? 3. Where does the notice get sent? 4. What does the notice specify? 5. If CPS oppose the appeal, they must notify who and when? 6. Unless otherwise directed, when should the appeal be heard? 7. Judge needs what documents? 8. At the hearing in chambers, judge hears reps from who?

Answer 32

1. CC provided mag gave certificate of full argument 2. A notice of application as soon as practicable after the magistrates' court’s decision. 3. Send notice to MC, CC, CPS and any surety. 4. Decision wanted, offences charged, arguments for granting/varying bail, further info or legal args since MC decision, suggested conditions. 5. D and CC at once w reasons for opp. 6. ASAPracticable and no later than the business day after it was served. CC can vary. Will be heard in chambers by CC judge. 7. Notice of app, certificate of full arg, record of prev conv. 8. cPS, D advocate. If bail granted, copy of order sent to prison/remand centre to release D.

Question 33

CPS appeal against grant of bail from MC re imprisonable offences - what are the 3 deadlines that constitute the procedure? What should the power to appeal bail be used for according to the Code for Crown Prosecutors?

Answer 33

1) Oral notice must be given at the end of the hearing; 2) Written notice must be served on the defendant not more than 2 hours after 3) CC must hear the appeal within 2 business days. Judiciously and responsibly, only in cases of grave concern.

Question 34

What is the duty of a defendant granted bail?

Answer 34

To surrender to the court at the time and place appointed for the next hearing.

Question 35

What will MC do if a defendant fails to attend court to answer bail when granted bail?

Answer 35

The magistrates will issue a warrant for their arrest, which may be backed with bail or not and kept in PC and brought before mC at next hearing; charged with absconding. If arrested and brought before court for failing to surrender to custody, the CPS will decide whether to prosecute. cf. If D already been been before the court and granted bail, failure to surrender to their bail at next hearing = breach of court bail and court decides to commence proceedings.

Question 36

What occurs if a defendant is arrested a for failing to attend court once granted bail after the court has finished sitting on a Friday? What if arrested on after court finished on Saturday?

Answer 36

A specially arranged remand court will be convened on Saturday morning. Will be kept in custody until the following Monday morning.

Question 37

What is the offence D can be charged with for failing to surrender to custody without reasonable cause?

Answer 37

They will be guilty of the offence of absconding.

Question 38

What happens if a defendant has a reasonable cause for failing to surrender to custody - are they still guilty of absconding?

Answer 38

They will still be guilty unless they surrendered to custody as soon as reasonably practicable.

Question 39

What can the court do if a defendant does not have a reasonable excuse for absconding?

Answer 39

Sentence them immediately or adjourn sentence until the conclusion of the substantive proceedings.

Question 40

What may the magistrates refuse if they decide not to impose a penalty for absconding?

Answer 40

They may refuse to grant bail or grant bail with much more stringent conditions.

Question 41

Does a defendant who breaches bail conditions commit a criminal offence?

Answer 41

No, except for failing to attend the next court hearing.

Question 42

What empowers a police officer to arrest a person who has been bailed? If arrested, what happens?

Answer 42

s. 7(3) BA 1976 - If the officer reasonably believes the person is not likely to surrender to bail or has broken or is likely to break their bail conditions. They will be detained in custody and must be brought before MC within 24 hours.

Question 43

What is the two-stage approach the magistrates will adopt when defendant is brought before the magistrates after being arrested once bailed if an officer r believes unlikely to surrender to bail/broken conditions (i.e. arrested under s. 7(3) BA)?

Answer 43

1) Determine whether there has been a breach of bail conditions (WS, oral ev) 2) Decide whether the defendant should be remanded in custody or on bail pending the next hearing (breach w good reason likely to be in custody).

Question 44

What is likely to happen to a defendant who breaches bail conditions without good reason?

Answer 44

A defendant who breaches bail conditions without good reason is likely to be remanded in custody. ## Footnote Magistrates may be persuaded to grant bail again, but with more stringent conditions.

Question 45

What are the possible conditions for bail?

Answer 45

Surety, security, report to police station, residence, curfew, non-communication with prosecution witnesses, not to enter specified area, surrender passport.

Question 46

What is security and what opposition to bail ground does it overcome?

Answer 46

Overcomes Absconding. The defendant will be required to deposit a sum of money (or goods) with the court. If the defendant fails to attend court to answer their bail, they will forfeit the security they have given.

Question 47

What is Reporting to a police station and what opposition to bail ground does it overcome?

Answer 47

Overcomes Absconding and committing offences on bail. The court orders the defendant to report to their local police station on a regular basis (on specified day(s) and time) so the police may ensure that the defendant remains in the local area.

Question 48

What is residence and what opposition to bail ground does it overcome?

Answer 48

Overcomes Absconding and committing offences on bail. The court requires the defendant to reside at a specified address. The police will often check that such a condition is being complied with by visiting the address late at night or early in the morning.

Question 49

What is curfew and what opposition to bail ground does it overcome?

Answer 49

Overcomes committing offences on bail. The court requires a defendant to remain at their place of residence between certain specified hours (for example, between 8 pm and 7 am). The police may visit the residence during these hours to check that the defendant is there.

Question 50

What is non-com with prosecution witnesses and what opposition to bail ground does it overcome?

Answer 50

Overcomes committing offences on bail and interfering with a witness. This condition covers direct face-to-face contact with the witnesses, as well as indirect contact such as through a third party or contacting the witnesses by telephone or in writing or through any other means such as social media.

Question 51

What is restriction on certain area and what opposition to bail ground does it overcome?

Answer 51

Overcomes committing offences on bail and interfering with a witness. This prevents the defendant from entering a geographical area or town, for example where a prosecution witness resides, or where the defendant habitually commits offences.

Question 52

What is attending appointment with solicitor/probation service and what opposition to bail ground does it overcome?

Answer 52

N/A. Requires a defendant to keep in regular touch with his solicitor to ensure that the case is not delayed because the defendant has failed to provide their solicitor with prompt instructions.

Question 53

What is surrender passport and what opposition to bail ground does it overcome?

Answer 53

Overcomes Absconding. Requires a defendant to surrender their passport. Only likely to be appropriate in serious cases where the defendant is known to have substantial financial assets or criminal contacts outside the UK.

Question 54

What is sureties and what opposition to bail ground does it overcome?

Answer 54

A surety is a person who enters into what is termed a ‘recognisance’ of money and is under an obligation to use every reasonable effort to ensure that the defendant attends court. If the defendant fails to answer their bail at the next hearing, the court must declare the immediate and automatic forfeiture of the recognisance.

Question 55

What conditions must be necessary for granting bail according to Section 3(6) of the Bail Act 1976?

Answer 55

Conditions must prevent the defendant from absconding, committing further offences, interfering with witnesses, ensuring availability for reports, keeping appointments with solicitors, or ensuring the defendant’s protection or welfare if under 18.

Question 56

On what grounds may bail for summary-only imprisonable offences be refused?

Answer 56

Bail may be refused on grounds such as failure to surrender, commission of further offences, fear of commission of offences causing injury, defendant’s protection, serving custody, fear of failure to surrender or obstruction of justice, and lack of sufficient information.

Question 57

What grounds allow a court to refuse bail for a non-imprisonable offence under Sch 1, Pt II to the Bail Act 1976?

Answer 57

Bail may be refused if the defendant failed to answer bail in previous proceedings, needs custody for protection or welfare if under 18, is serving a custodial sentence for a separate offence, or has been arrested for failing to answer bail or breaking conditions.

Question 58

When is the nature and seriousness of the offence relevant in bail considerations?

Answer 58

It is relevant when the CPS argues there are substantial grounds for believing the defendant would fail to surrender if granted bail, especially if charged with a serious offence likely to result in a prison sentence.

Question 59

How is a defendant's character and antecedents used to object to bail?

Answer 59

The CPS may raise a defendant's previous convictions to argue there are substantial grounds for believing the defendant will commit further offences if released on bail.

Question 60

When are associations relied on to object to bail?

Answer 60

Associations may indicate substantial grounds for believing the defendant will commit further offences if released, especially if linked to known criminals or if there is a fear of witness interference.

Question 61

How do community ties affect bail objections by the CPS?

Answer 61

The strength of a defendant's community ties may suggest substantial grounds for believing they will fail to surrender if released, particularly if they are unemployed or have no local connections.

Question 62

How does a defendant's record in relation to previous grants of bail affect bail decisions?

Answer 62

If a defendant has previous convictions for absconding, the CPS is likely to argue there are substantial grounds for believing they will fail to surrender if granted bail.