Bail Grounds opposing or granting and why PDF

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grounds for opposing and granting bail under statute. why it may be denied. bail conditions, conditional v unconditional bail. absconding and consequences....

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1. Grounds for denying bail for an indictable imprisonable offence (Sch 1 Part 1 BA 1976): When D charged with indictable offence (I/EW), D shouldn’t be granted bail where there are substantial grounds for believing that if released on bail D would: a) Fail to surrender to custody; or b) Commit an offence whilst on bail; or c) Interfere with witnesses or otherwise obstruct the course of justice, whether in relation to himself or any other person. Recent provision under the Legal Aid, Sentencing and Punishment of Offender’s Act 2012 inserted a new para (1A) into sch 1 part 1 which restricts courts powers to remand an adult D in custody prior to conv where there is NO REAL PROSPECT OF THE D RECEVING A CUSTODIAL SENTENCE IF CONVICTED. - This applies to a-c above, but NOT to D who needs to be kept in custody for own protection or where there’s a further risks of offending (domestic abuse) ALREADY ON BAIL: Sch 1 Part 1 Para 2A: The D need not be granted bail if: a) The offence is an indictable offence or an offence triable EW; and b) It appears to the court he was on bail in crim proceedings on the date of the offence Therefore, if D is presently on bail in connection with a summary offence and is then arrested and charged with an EW offence, as D was on bail at the time he committed the EW offence, the court need not grant bail. POSITIVE DRUG TEST: Sch 1 Part 1 Para 2 (6A-6C): Bail may NOT be granted in circs specified by S19 (4) CJA 2003 unless the court is satisfied there is no signif risk of accused committing an offence while on bail. The accused must: a) Be over 18; b) Tested positive for presence of a Class A drug; c) Be charged with a Class A related drug offence or the court must have substantial grounds for believing that the misuse of class A drugs caused or contributed to the offence with which the accused is charged; and d) Refuses to undergo an assessment of his dependency on or propensity to misuse drugs, or having undergone such an assessment, and having had follow-up action proposed to address his dependency/propensity, refuses to undergo such follow-up action. Where bail is granted under S6B, it must be subject to a cond that D undergoes an initial assessment or participates in any follow-up treatment. NOT PRACTICABLE: Sch 1 Part 1 Para 2(5): D need not be granted bail where the court is satisfied that it has not been practicable to obtain sufficient info to take a decision in relation to bail. Court can refuse bail until sufficient info is available e.g. there may be cases where the police have charged a suspect but have insufficient details re the suspects identity and address or prev convs.

COMMIT OFFENCE OR CAUSE INJURY Sch 1 Part 1 Para 2ZA (inserted by Sch 11 the Legal Aid, Sentencing and Punishment of Offender’s Act 2012): D need not be granted bail if the court is satisfied that there are substantial grounds for believing that the d, if released on bail (subj to conds or not), would commit an offence while on bail by engaging in conduct that would, or would be likely to cause: a) Physical or mental injury to an associated person; or b) An associated person to fear physical or mental injury OWN PROTECTION/PUBLIC INTEREST: Sch 1 Part 1 Para 2(3): D need not be granted bail if the court is satisfied that he should be kept in custody for his own protection or if he is a child or young person, for his own welfare. Ds are likely to be remanded in custody for own protection where they are a danger to themselves (self-harm) or are charged w an offence that incites considerable public revulsion e.g. paedophilia. ALREADY SERVING SENTENCE: Sch 1 Part 1 Para 2 (4): D need not be granted bail if he is already serving a custodial sentence. D who is already serving a custodial sentence for another crime won’t be granted bail in connection with new matters and should not apply for bail!

BREAKING BAIL CONDS Sch 1 Part 1 Para 2(6): Having been released on bail or in connection with the same offence, D has been arrested under S7 Bail Act 1976 (for absconding or breaking bail conditions). If D is granted bail and fails to surrender to bail or breaks any bail conds, d can be arrested and held in custody (S7 BA 1976). If failure to surrender is admitted / proved, D commits the criminal offence of absconding. Where a breach of bail conds admitted/proved, this doesn’t constitute an offence. However in both cases, court can choose to withhold bail under 6.

MURDER: Sch 1 Part 1 Para 2 (6ZA) A defendant who is charged with murder may not be granted bail unless the court is of the opinion that there is no significant risk that, if released on bail, the defendant would commit an offence that would be likely to cause physical or mental injury to another person. Section 115 C&JA 2009 provides that a defendant who is charged with murder may not be granted bail except by a Crown Court judge. The power of a magistrates’ court to consider bail in murder cases at any stage is therefore removed. A b il d i i i d tb d

NOT COMPLYING PROBATION SERVICE: Sch 1 Part 1 Para 2(7): Where the case has been adjourned for enquiries or a report, it appears to the court that it would be impracticable to complete the enquiries or make a report unless the accused is kept in custody. Applies where a defendant has been convicted of an offence or has pleaded guilty but there are concerns that the defendant may not cooperate with the Probation Service in the preparation of a pre-sentence report. A common example is where defendants are unable to offer a fixed address to which they can be bailed and contacted.

GROUNDS FOR OPPOSING BAIL – THE STATUTORY FACTORS: Sch. 1 Part 1 para 9 BA 1976 - requires a court to have regard to a number of factors in determining whether the grounds for denying bail under paras. 2(1), 2A, 2ZA, 6A and 6ZA are made out. These include: a) Nature / seriousness of offence and the probable method of dealing with it: - more serious the offence, the greater the risk of a custodial sentence being imposed and therefore the greater the risk the defendant will abscond b) Ds character, record, associates and community ties: - In completing the case file for the CPS, the police will provide details of the defendant’s past criminal record and personal circumstances. - The CPS will therefore be aware of the type of person the defendant is and whether the defendant has family, a job or other commitments in the area. c) Ds bail record: - Ds prev bail record will be important to the court, see if absconded before etc - if always complied, it may be a mitigating factor rather than aggravating. d) Strength of the evidence against D; e) if the court is satisfied that there are substantial grounds for believing that the defendant, if released on bail (whether subject to conditions or not), would commit an offence while on bail including the risk that the defendant may do so by engaging in conduct that would, or would be likely to cause, physical or mental injury to any person other than the defendant; and f) any other relevant factor. It is the interrelationship between the grounds for refusing bail and the applicable factors which determine the grant or refusal of bail.

2. Grounds for denying bail for a non-imprisonable offence (Sch 1 Part II BA 1976):

Where the accused is charged with a non-imprisonable offence, Sch. 1 Part II BA 1976 provides that the accused need not be granted bail where: a) it appears to the court that, having been previously granted bail, the defendant has

failed to surrender to custody and the court has substantial grounds to believe, in view of that failure, that if released on bail (whether subject to conditions or not) the defendant would fail to surrender (para. 2); or b) the court is satisfied that the accused should be kept in custody for his own welfare or

protection (para. 3); or c)

the defendant is already in custody in respect of any sentence (para. 4); or

d) having been released on bail in connection with the present offence, the defendant

has been arrested for absconding or breaking bail conditions under s. 7 BA 1976, there are substantial grounds for believing that the defendant, if released on bail (whether subject to conditions or not), would fail to surrender to custody, commit an offence on bail or interfere with witnesses, or otherwise obstruct the course of justice (para. 5); or e) having been released on bail in connection with the present offence, the defendant

has been arrested for absconding or breaking bail conditions under s. 7 BA 1976, there are substantial grounds for believing that, if released on bail, the defendant would commit an (p. 188) offence by engaging in conduct that would be likely to cause physical or mental injury to an associated person (as defined by s. 2 Family Law Act 1996) or cause an associated person to fear physical or mental injury (para. 6).

3. Grounds for denying bail for a summary-only imprisonable offence (Sch 1 Part 1A BA 1976)

Bail can be refused in connection with a summary-only imprisonable offence under Sch. 1 Part 1A on one or more of the following grounds: a) If, having been previously granted bail, the defendant has failed to surrender to custody and the court believes that, if released on bail, he would do so again (para. 2); b) if the defendant was on bail on the date of the offence and the court has substantial grounds to believe that, if released, he would commit an offence on bail (para. 3) c) there are substantial grounds for believing that, if released on bail, the defendant would commit an offence by engaging in conduct that would be likely to cause physical or mental injury to an associated person (as defined by s. 2 Family Law Act 1996) or cause an associated person to fear physical or mental injury (para. 4);

d) the court is satisfied the defendant should be kept in custody for his own protection (para. 5) e) the defendant is already serving a custodial sentence (para. 6)

f) having been released on bail in connection with the present offence, the defendant has been arrested for absconding or breaking bail conditions under s. 7 BA 1976 and there are substantial grounds for believing that the defendant, if released on bail (whether subject to conditions or not), would fail to surrender to custody, commit an offence on bail or interfere with witnesses or otherwise obstruct the course of justice (para. 7) g) Lack of sufficient information (para. 8) (provision relating to drugs above also applies to D charged with summary online imprisonable offence) (note that paras. 2, 3 and 7 do not apply to an accused who is 18 and who has not been convicted in the case if it appears to the court that there is no real prospect of the defendant receiving a custodial sentence in the event of conviction):

CONDITIONAL V with NO Unconditional bail: released on bail conditions imposed. Free. UNCONDITION Conditional bail: released on bailAL with BAIL: conditions imposed. Why are bail conditions imposed? They must be used as a proportionate measure to reduce risks identified by court. where it is necessary to ensure that D:  will surrender to custody  doesn’t commit further offences  doesn’t interfere with witnesses or obstruct the course of justice  for Ds own protection  in the case of a conv offender, to ensure the accused is available to enable enquiries for the purposes of a report to be made to the court.

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Negotiating bail:  In negotiating bail with the CPS, the defence solicitor may need to offer or agree to certain conditions subject to his client’s consent.  The defence solicitor should discuss this with his client either at the police station or in the holding cell at court.  Where an alternative address is likely to be needed, the defence solicitor may have to find alternative accommodation. If a bail hostel place is required, the defence solicitor will liaise with the Probation Service to see if a place is available and it is suitable for the defendant. This option would not be suitable, for example, for a mentally unstable or drug-dependent defendant.

Common bail conditions: reporting to a police station – few times a week or daily

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living at a specified / alternative address – inc a bail hostel. e.g. where there is a risk of accused committing further offences due to his relationship with the particular V, a condition could require that the accused resides at an alternative address and must not contact the injured party. These final two conditions are appropriate to prevent an accused from interfering with a witness or obstructing the course of justice.

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avoiding contact with pros witnesses – prevent interference

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avoiding a particular area – could req D not to enter a particular building or go within a specified radius of it. E.g. a supermarket where he often is accused of stealing merchandise.

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avoiding a particular activity – e.g a condition that D doesn’t visit licensed premises or sit in the front seat of any vehicle

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imposing a curfew – req a D to remain at a specified address between certain hours e.g. 8pm-7am- it could also inc a ‘doorstep’ condition or electronic tagging. Used where D accused of committing night time burglaries for example.

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requiring a surety- a court may req D to provide a suitable surety before granting bail. A surety is a person who promises to forfeit a sum of £ fixed by the court (known as recognisance) if D fails to attend court as directed. This amount is determined re surety’s financial resources. If D fails to answer his bail, any surety is liable to forfeit whole/part of the money. A surety must be a suitable person who will be required to attend court and give evidence on oath, confirming, amongst other things, his financial resources, his character and any previous convictions, and his relationship and proximity to the defendant. Such a condition can be imposed where the defendant is at risk of failing to surrender, perhaps because the defendant has links to a foreign jurisdiction.

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Security – court can req D to pay a security before being released. Similar to a bail bond. It requires the defendant or someone on his behalf to deposit a sum of money or other valuable security as a guarantee to ensure attendance. The sum can be forfeited if the defendant absconds.

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surrendering a passport- where D could be a potential flight risk

FAILING TO COMPLY – BAIL CONDS:

VARYING BAIL CONDS

Important to comply with conditions:  If bail is granted subject to conditions, the importance of complying with the conditions will be explained to the defendant in court. The defence solicitor should remind his client of their importance.

Can bail conds be varied?  S3 (a) and (b) BA 1976 – EITHER SIDE can apply to have bail conditions varied, or pros can apply to have conditions imposed on the grant of unconditional bail.

What is the result if conds not complied with?  A failure to abide by any condition of bail can lead to a defendant’s arrest and reappearance before the court in custody (s. 7 BA 1976).

PROCESS FOR NON-COMPLIANCE WITH BAIL CONDS:  A power of arrest is available where a police constable has reasonable grounds for believing that a person has broken, or is about to break, a bail condition. If the breach is proved or admitted, then although the defendant does not commit a further offence by breaking a bail condition, the court may decide the defendant has had his chance and should be remanded in custody for the duration of the proceedings (para. 10.6(7)).  Alternatively, the court might impose more onerous conditions or give the defendant a stern warning about the importance of abiding by conditions of bail.  Having been arrested for suspected breach of bail conditions, s. 7 BA 1976 requires the defendant to be brought before a magistrate within 24 hours of arrest, excluding Sundays.

Why would a D want them varied?  Many Ds apply to vary bail conditions if circs have changed since the hearing and make the conditions impracticable e.g. securing new job outside area or need to change address.

Domestic violence:  In a domestic violence prosecution where the alleged victim retracts her complaint and the defendant seeks to vary bail conditions (which may well exclude him from the family home), the CPS may call the complainant to testify on oath to her position in relation to bail.

ABSCON DING:

ABSCONDING IS ONE OF THE MOST COMMON REASONS CITED BY THE PROS FOR OPPOSING DS RIGHT TO BAIL BE GRANTED. WHAT – leaving the area/country. Conditions which may be attached to prevent absconding: take their passport, tagging, curfew. These all ensure police know where D is.

OFFENCE OF ABSCONDING: S6(1) BA 1976: creates the offence of absconding where the accused has been released on bail (whether by the police or by a court) and fails, without reasonable excuse, to surrender to custody at the time and date specified in the bail notice. BOP - Where the accused fails to surrender, the burden will be on the accused to prove that he had reasonable cause for failing to surrender. PUNISHMENT: Punishable by up to 3months imprisonment/ max fine of £5000 in mags court

BAIL IMPOSED BY CROWN COURT: Where bail was imposed by the Crown Court, the offence of absconding is treated as criminal contempt and is punishable by a maximum sentence of 12 months’ imprisonment and/or an unlimited fine.

REASONABLE EXCUSE FOR FAILING TO ATTEND: Where some explanation is forthcoming to account for a defendant’s absence, for example the defendant manages to contact his solicitor alerting him of a family emergency, the court is likely to grant bail in absence or issue a warrant backed with bail. The court will require proof for the absence, such as a medical certificate, to be produced on the next occasion SURRENDER: Section 6(2) makes it an offence for a defendant who has a reasonable excuse for failing his bail, not to have then surrendered himself as soon as was thereafter reasonably practicable. NO REASONABLE EXCUSE: Where there is no explanation for the accused’s failure to appear, the court is likely to issue a warrant for the accused’s immediate arrest. If the case has been listed for trial, the accused may be tried in his absence.

COURTS REASON S FOR REFUSIN G BAIL:

REFUSING BAIL – NOTICE:  If bail is refused, the defendant must be given a notice setting out the reasons for the magistrates’ decision.  Court must give reasons for granting bail in all cases where bail has been opposed.  bail is a decision for the court and it should be considered at every remand hearing, whether it is applied for or not. AGE:  

ADULT - A defendant who is 21 or over will be remanded to a prison if bail is denied. MINOR - Between the ages of 17 and 20, remand is normally to a remand centre or an adult prison if no places are available at a remand centre.

REMAND PERIOD:  When remanded in custody after first mags appearance, remand period must not exceed 8 days. Could be weeks/months before case is ready for crown court trial.  The power only applies once a magistrates’ court has set a date for the next stage of the proceedings to take place and decides the accused should be remanded in custody until that date.  The power does not apply on a first remand. An accused is therefore allowed two bail applications before this power can be exercised.  If the defendant is to be further remanded after 28 days, he must be produced at the next court hearing.

MAXIMUM REMAND PERIOD:  Where a court grants a defendant bail after conviction, the maximum period is four weeks.  Where a defendant is remanded in custody pending completion of reports, the maximum period is three weeks.

CAN MAGS GRANT BAIL?  Magistrates can grant bail and may also remand a defendant in custody where there is no objection from the prosecutor.