3 Bail and Remand - Combination of lecture notes and personal notes. Contains all the information PDF

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Summary

3. Bail and remands adjournments and remands time limits applicable to remands in custody and applications for their extension (detailed knowledge of specific time limits not required) the presumption in favour of bail and the occasions when it does not apply; the statutory grounds for withholding b...

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3. Bail and remands 1. adjournments and remands 2. time limits applicable to remands in custody and applications for their extension (detailed knowledge of specific time limits not required) 3. the presumption in favour of bail and the occasions when it does not apply; the statutory grounds for withholding bail, and the matters that have to be considered by the court 4. bail conditions that can be applied and under what circumstances 5. the procedure for making a bail application, the practice and procedure on further application to the Crown Court following a decision to refuse bail in the magistrates’ court 6. grounds upon which the prosecution can appeal to the Crown Court against a decision to grant bail 7. dealing with defendants who have failed to surrender to bail or breached their bail conditions Adjournment and remand Title General principle

Details Adjournment means where the case is moved forward because it cannot be concluded in one session Remand means when a defendant is sent away and told to return another day. Remand may be served in custody or in the community on bail May adjourn and (a) Remand in custody (b) Remand on bail (power can be exercised by a single justice of the peace) MUST remand (custody or bail) for either-way offence  UNLESS appeared himself on summons/requisition; or  Remanded at an earlier hearing

Challenging adjournmen t

Judicial review. Generally difficult to succeed on a challenge because of judicial discretion Test  Plainly wrong  Error of principle  Error of law Examples  Refusal to adjourn even though Prosecution and Defendant cannot make it due to bad weather  Prosecution witness could attend but Defendant witness could not

Remand

Two types (a) Remand in custody (b) Remand on bail Procedure 1. Maximum remand in custody is 8 clear days. 2. Remand hearing 3. May be remanded again 4. Until next hearing is set 5. Once next hearing set, 28 days or until the hearing (whichever closer) Remand hearing may be at magistrates closest to the remand location. Exception  If it is a bail on remand; AND  Both accused and prosecution agree to a longer period of remand.

Custody time limits

Maximum time limit to sending to Crown Court Expiry of time limit

56 (if decision to go for summary is within 56 days)/ 70 days First appearance and (other cases)* summary trial Date of sending 182 days* to trial at the Crown Court 70 days First appearance and committal Committal and 112 days trial on indictment Multiple 112 days separately committals Retrial directed 112 days by Court of Appeal 182 days from the date of sending to the date of trial at the crown court (minus days in magistrate custody)

Must grant bail. Extension of time limit Before the expiry, the Crown Court or magistrates may extend if satisfied (a) Prosecution has acted with all due diligence and expedition; and (b) There is good and sufficient cause to do so

Bail

Title Procedure

Details Presumption in favour of bail Does not apply when the person is already convicted (e.g. appeal against conviction, committal for sentencing) (applies to after summary conviction) Once bail is granted, it usually follows that bail will continue (even if pled guilty) Procedure at magistrates 1. Arrest where no warrant/summons/requisition MUST remand 2. ALL parties MUST be present for consideration of bail UNLESS  Defendant in custody waived his right to attend  Bail was refused in his presence previously and he was continuously in custody 3. Prosecution should OBJECT to bail (presumption in favour of bail) (may adduce evidence) 4. Defendant applies for bail (may adduce evidence) 5. Prosecution MAY reply 6. Magistrates make decision on bail.  But parties may make the same arguments  MUST issue certificates of full argument if (1) heard for first time OR (2) New circumstances arose since last hearing.  After two hearings of repeated arguments, defendant should not make a third application for bail unless there are fresh arguments to consider (court may refuse to hear) Appeal procedure (Defence) 7. Defence may appeal to Crown Court over refusal of bail or bail conditions  Appeal as soon as practicable after magistrate decision  Attach copy of certificate of full argument 8. Prosecution must inform Crown Court if they intend to oppose appeal 9. After one appeal of arguments, defendant should not make a second one cannot be made on the same arguments. Appeal procedure (Prosecution) 7. Prosecution may appeal to the Crown Court to reject bail 8. Prosecution may appeal to High Court to reject bail only if it was not an appeal from the magistrate. 9. Give oral notice IMMEDIATELY after decision and before accused it released from custody (confirmed in writing and served within two hours). 10.Accused will be remanded until disposal of appeal 11.Appeal MUST be heard within two working days. Specified offences  Bail for murder ONLY granted by order of Crown Judge, once committed to the Crown Court as soon as possible or within 48 hours  NO BAIL if charged or previously convicted of specified offences unless exceptional circumstances

Title

Details

Grounds to object bail*

Standard of proof: substantial grounds for believing (based on facts) Grounds to object bail (indictable and summary imprisonable) 1. FTS - Failure to surrender (previous conviction of) 2. FFO Fear of further offences 3. IWW – Interfering with witness NRPCS No realistic prospects for custodial sentence will cancel all the above* 4. Insufficient information (insufficient time to investigate)  Remand for a little longer to investigate. 5. Defendants own protection. 6. Defendant already serving a custodial sentence 7. If he was already on bail Non-imprisonable summary offence Risk of absconding and own protection Considerations to support grounds 1. Nature and seriousness of offence 2. Community ties 3. Defendant’s past bail record 4. Strength of evidence

Bail conditions

Test Where it appears necessary Common conditions (a) Electronic monitoring (‘tagging’) (often combined with curfew) (b) Curfew (c) Surety by someone else (d) Security by Defendant or someone else (e) Condition of residence at a given address (f) Reporting to police station (g) Restriction to where the Defendant may go (h) Restriction on who the Defendant may have contact with (i) Surrender of passport

Application to vary Defendant/Prosecution may apply to the court who granted bail to vary the conditions. Give notice no less than two clear days before hearing. Breach of bail

Breach of bail (failing to appear) (a) Issue arrest warrant (‘bench warrant’)

Title

Details (b) Adjourn and extend the accused’s bail (if there is a good reason for nonattendance) (c) Proceed in absence Breach of bail conditions Before surrender date Police may arrest BEFORE surrender date if (a) Officer has reasonable grounds to believe accused will not surrender to custody; (b) Officer has reasonable grounds to believe that accused will breach or has already breached bail condition; or (c) A surety has informed the police that accused will not surrender and wishes to be relieved of obligations Once arrested, brought before magistrate within 24 hours excluding Sundays (VERY strict, continued custody is unlawful) Magistrate no need to hear evidence and may rely on oral representations. Magistrate may order (a) Stricter conditions; or (b) Remand in custody (c) But where no real prospect of custody, no bail can be withheld. (d) Where no breach or no likely breach, MUST grant the same bail conditions. Failing to surrender on surrender date This is an offence of absconding punishable  In the magistrate by 3 months and/or unlimited fine; or  In committal to the Crown Court 12 months and/or unlimited fine In practice, magistrate will informally ask what is the reason for absconding, if explanation is satisfactory then no charge brought. Otherwise, prosecution may apply or court may issue on its own motion a charge against the absconder....