Criminal Practice SQE2 > Bail > Flashcards

Bail Flashcards

(49 cards)

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1
Q

Who applies to remand D in custody? How?

A

Prosecution - present objections to bail

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2
Q

What is the presumption?
When can bail be refused?

A

In favour of bail

ONLY if prosecution objection is properly made out

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3
Q

Who applies for bail?

A

Defence (after prosecution objections to bail)

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4
Q

When is bail not decided in magistrates?

A

Murder - only CC judge

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5
Q

Who can appeal decisions on bail from mags?

A

defence and prosecution

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6
Q

When does the right to bail still apply?

A
  • After conviction but adjourned for sentencing reports
  • Alleged breach of community order
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7
Q

When does right to bail become absolute?

A

Case has not progressed in accordance with time limits (e.g how long can keep in custody)

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8
Q

Who does right to bail not apply to?

A
  • appealing conviction / sentence
  • committed for sentence from mags to CC

defendants can still apply ! just no right

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9
Q

Types of offences (for bail purposes):

A
  • indictable (inc EW offences)
  • summary (imprisonable)
  • summary (non-imprisonable) e.g driving
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10
Q

Effect of conditions on grounds of objection

A

conditional bail = make the grounds no longer substantial

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11
Q

What thefts are indictable?

A

ALL

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12
Q

What is the test for allowing/ denying bail? (Indictable/ EW)

A

If D release on bail… are there substantial grounds for believing D would:

  1. fail to attend a hearing (fail to surrender to custody)
  2. Commit further offences on bail
  3. Interfere with witnesses/ obstruct course of justice e.g destruction of evidence

THE BIG 3

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13
Q

What is important about the big 3 bail test? (indictable)

A

Low threshold = only show fear of 1-3 happening have substance & merit

witness evidence can be used (rare) hearsay is permitted - usually just had P & D representations

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14
Q

When should bail not be removed under grounds 1-3? (Indictable/ the big 3)

i.e bail should be granted…

A

No real prospect of receiving custodial sentence

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15
Q

What is the general rule on objection to bail for summary offences?

A

only available if D breaches a condition of bail OR has a conviction for failure to surrender in the past

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16
Q

What are the next most common grounds to object to bail? (after the big 3)

What is the test?

A
  1. Custody for Ds own protection
  2. Court has insufficient info to deal with bail - custody until sufficient evi
  3. D already serving custodial sentence

D need not be granted bail if 1 exists

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17
Q

What is the process for deciding bail for murder cases?

Who can decide?

A

Only CC judge

  1. has D pre-conviction for murder/ attempted, rape, serious sexual offence = no bail unless exceptional circumstances to justify

NO ⬇️

  1. No bail unless no significant risk of D casing physical or mental injury
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18
Q

What is the process for deciding bail for attempted murder/ rape/ serious sexual offence cases?

A

is there a pre-conviction for

  • murder
  • attempted murder
  • rape
  • serious sexual offence

no bail unless exceptional circumstances to justify

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19
Q

What is the process for deciding bail for an offence with life imprisonment?

e.g aggravated CD/ arson/ firearm offences

A

is D already on bail or fails to attend if already on bail?

no bail unless no significant risk of further offences / failure to attend

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20
Q

What is important about pre-convictions for serious offences?

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A

if the previous conviction was not:

  • murder
  • attempted murder
  • rape
  • serious sexual offence

bail is assessed on the usual grounds e.g big 3/ need not be granted bail

21
Q

What is the process if D is charged with an offence that suggests would cause mental/ physical injury to family?

Study These Flashcards
A

No need to grant bail if substantial grounds to believe D would commit an offence to harm/ likely harm associated person

22
Q

Who is an associated person here?

Study These Flashcards
A

spouse, partner or family member

23
Q

When is not allowing bail for harm to a family member available for non-imprisonable offences?

Study These Flashcards
A

ONLY if D is arrested for breach of bail

24
Q

What is the process if D is charged with abuse of drugs?

Study These Flashcards
A
  1. Class A drug in body and…
  2. The offence relates to class A drugs or caused/ motivated by taking class A drugs

Not grant bail unless no significant risk of D committing offence on bail

25
What happens if D was on bail at the time of the offence?
indictable = need not grant bail summary imprisonable = need not grant bail if substantial grounds for believing D will commit further offences
26
What happens if D absconds whilst on bail for an indictable offence?
do not need to grant again unless it is before conviction and no prospect of custodial sentence
27
When are *'the factors'* mandatory?
The big 3: - failure to attend subsequent hearing - commit further offences on bail - interfere with witnesses / obstruct course of justice
28
What are *'the factors'* ?
- nature & seriousness and likely sentence e.g longer sentence - more tempted to abscond - character of D, previous convictions, associations & community ties e.g family/ job - past bail record - strength of evidence e.g chance of acquittal? commonly used for more serious offences !!
29
Difference between grounds for objection and factors?
The factors are relevant but bailed must be denied on a **ground**
30
Definition of bail
Release, subject to a duty to surrender to custody at an appointed time or place
31
What do the court consider about conditions on bail?
relevant, proportionate and enforceable
32
Common bail conditions:
- curfew (where time of day/ night is relevant to pattern of offending) = prevent offences - reporting to station at given times (check still in the area) = prevent absconding - surety (promise to pay if D fails) = prevent absconding - security (D or someone else paying sum upfront) = prevent absconding - restriction on **where** = prevent further offences/ interfering with W - restriction on contact = prevent interfering with W/ obstructing/ prevent offences - electronic tag = prevent failure to surrender/ interference/ offences - bail hostels (D has no fixed address) = prevent all - surrender passport = prevent absconding
33
Who can make an application to vary bail? procedure?
defence or prosecution must give advance notice to o/s made to court which granted bail (or CC if sent for trail/ committed for sentence) *(parties agree can vary without hearing)*
34
Consequences of breaching bail conditions?
No criminal offence!! Conditions can be tightened or remanded in custody - brought before mags nb - can arrest if in breach or **about to be**
35
Which bail breach is a criminal offence? penalties?
failing, without reasonable cause, to surrender to custody summary = up to 3 months and/or unlimited fine indictment = up to 12 months and/or unlimited fine
36
What happens if D is refused bail by police?
appear in next available in mags court
37
What is the general rule on bail attempts? (mags trial)
2 attempts in mags and 1 attempt in CC
38
What are the options to appeal bail?
Usual approach - appeal to mags (heard 1 week after) OR CC - **need certificate of full argument from mags**
39
What is a certificate of full argument?
confirmation that mags have heard and refused bail with reasons
40
When are bail appeals heard in CC?
1 business day after appeal notice is served
41
What is the bail timeline in a usual case?
1. D attends court and applies for bail 2. If refused, returned 1 week later - can raise new grounds (does not have to) 3. If refused, apply to CC (with cert of full argument) - 1 business day after notice to appeal served 4. Refused by CC - 1 more application to mags ONLY if change in circumstances
42
What is the bail timeline in urgent cases?
1. Attends court and applies for bail 2. If refused & urgent, D can appeal to CC immediately. need certificate. appeal heard 1 business day after notice 3. If CC refuses bail = **loses right to appeal to mags** 4. Can appeal to mags again if circumstances change
43
When must appeal notices be served?
As soon as practicable
44
How can the prosecution appeal against granting bail? (rare!)
- must have opposed originally - imprisonable offence - prosecution indicated orally at bail hearing they will appeal - intention to appeal in writing and served on D/ court in 2 hours !! - appeal heard in 48 hours (exc weekends) - CC judge (same as above in CC but appeal heard by HC judge in HC)
45
What are the custody time limits? (awaiting trial)
56 days in mags for summary or e-w 182 days in CC for indictable or e-w (less any days spent in custody before sent to CC) **trial must start before expiry!!**
46
When does a trial start? (mags & CC)
mags - court begins hearing evi from prosecution CC - when a jury is sworn
47
What happens if the time limit expires?
Prosecution must apply to extend must show acted with due **diligence & expedition** AND **good & sufficient cause** to remand D in custody
48
If D is remanded in custody at first hearing in mags, how long for their first? (in mags)
first remand = 8 clear days (must be brought back in 8 days so another bail app can be made - can be video link!!)
49
How often must D be brought back after second appearance in mags? (can be by video)
every 28 days or less the defendant can consent to these onward remands in their absence still must be in 56 days custody limit unless extended
Criminal Practice SQE2
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