BAIL, PLEA BEFORE VENUE AND ALLOCATION OF TRIAL PDF

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Criminal Litigation Lecture 6 about BAIL, PLEA BEFORE VENUE AND ALLOCATION OF TRIAL...

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CRIMINAL LITIGATION LECTURE 6 NOTES BAIL, PLEA BEFORE VENUE AND ALLOCATION OF TRIAL

Learning Outcomes After this Lecture you will: 1. 2. 3. 4.

be familiar with the principles of bail and the relevant exceptions; understand the procedure for making or contesting a bail application; understand the procedure for mode of trial and plea before venue; and identify the practical and technical considerations involved in advising defendants on mode of trial.

Bail Bail can be initially granted by the police before charge when they are continuing their enquiries and between charge and the first date of hearing. This lecture will only deal with bail granted by the courts rather than bail granted by the police. After the accused has been charged with an offence, the police will either release him on police bail or detain him in police custody to appear before the magistrates when the court next sits. If the case is not dealt with at the defendant’s first appearance, the court will have to adjourn. When it adjourns, the magistrates may either remand the defendant on bail (with or without conditions) or remand him into custody. Bail can be defined as “the release of a person subject to a duty to surrender to custody at an appointed time and place”. It is governed by the Bail Act 1976 ('Bail Act') as amended. Right to Bail: Section 4 Bail Act There is a general right to bail at all appearances before the magistrates or Crown Court up to the occasion on which the defendant is convicted or acquitted. Following conviction there is a right to bail if the case is adjourned for reports prior to sentencing. Exceptions to right to bail for imprisonable offences In order for bail to be refused the court must find that there is an exception to the right to bail under s. 4. We will concentrate on the exceptions relevant to a defendant who is accused or convicted of an imprisonable offence. These exceptions can be found in Schedule 1 Part 1 Bail Act. Real prospect of a custodial sentence The court cannot remand a defendant into custody in reliance on the exceptions in Schedule 1, Part 1, Para 2 and 2 A (below) if “it appears to the court that there is no real prospect that the defendant will be sentenced to a custodial sentence in the proceedings.” (Schedule 1 Part 1 Para 1A). Schedule 1 Part 1 Bail Act Paragraph 2:

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“The defendant need not be granted bail 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 do any of the following: fail to surrender to custody; or commit an offence while on bail; or

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interfere with witnesses or otherwise obstruct the course of justice, whether in relation to himself or any other person.”

Most contested bail applications for imprisonable indictable offences are based on these exceptions. Paragraph 2A “The defendant need not be granted bail if: a) the offence is an indictable offence or an offence triable either way; and b) it appears to the court that he was on bail in criminal proceedings on the date of the offence.” There is no requirement for the magistrates to have substantial grounds for believing this. Other exceptions There are further exceptions in Schedule 1 Part 1 Bail Act in relation to:  a remand for the defendant’s own protection (paragraph 3);  where there are substantial grounds that a defendant would commit an offence on bail that would cause physical or mental injury to an associated person (this includes spouses, current and former partners and children of the defendant) (paragraph 2ZA);  defendants already serving their sentences in custody (paragraph 4);  where there is a lack of information for taking decisions relating to bail at the outset of proceedings (paragraph 5); and  where the defendant has been released on bail in the same proceedings yet fails to surrender to custody or breaches bail conditions (paragraph 6). These exceptions will not be considered further. What are “substantial” grounds? The grounds for the magistrates to believe that the defendant will fail to surrender, commit an offence on bail or interfere with witnesses must be substantial. It is not enough for the magistrates simply to have a subjective perception of one or more of these three risks. Whether substantial grounds exist is a question of fact and is not subject to the usual rules of evidence. Representations will be made by both the prosecution and the defence but generally neither party needs to call witnesses or produce documentary evidence. Sometimes in very serious cases, the prosecution calls a police officer to give live evidence and sometimes the defence calls the person proposed as a surety to give evidence during contested bail applications. The magistrates have an inquisitorial role in this process and may ask questions of either party or insist that sureties are called to give evidence of their means and relationship with the defendant.

Factors When the magistrates are determining whether there are substantial grounds they must consider the factors set out in paragraph 9 Bail Act. These factors, frequently referred to as the “paragraph 9 factors”, give the court a wide discretion. “The court shall have regard to such of the following considerations as appear relevant:  the nature and seriousness of the offence or default (and the probable method of dealing with the defendant for it); Page 2 of 7

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the character, antecedents, associations and community ties of the defendant;

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the defendant’s record as respects the fulfilment of his obligations under previous grants of bail in criminal proceedings;

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the strength of the evidence of his having committed the offence or having defaulted;

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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, 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;

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as well as to any others which appear to be relevant”.

Bail conditions Section 3 Bail Act allows for conditions to be attached to the grant of bail. Before attaching a condition of bail the court must consider if the condition is relevant, proportionate and enforceable. The following are some of the conditions that a court may impose: Residence A condition of residence is a condition that the defendant must live and sleep at a specified address. This will be imposed to reduce the risk of the defendant absconding. It is often the first condition imposed. Reporting This will require the defendant to report, on a regular basis, to a local police station. This condition would be imposed to reduce the risk of the defendant absconding. Exclusion The court may also restrict the movements of the defendant by making it a condition of bail that he does not go into a certain area or to a specific place. This condition could be imposed to reduce either: the risk of the defendant committing any further offences while on bail; and/or (depending on the circumstances) interfering with witnesses. Non-contact The court can direct that the defendant does not approach or contact (either directly or indirectly) named individuals. These can be victims or prosecution witnesses in order to reduce the risk of interference with witnesses and/or obstructing the course of justice, or codefendants to prevent further offending. Curfews Curfews are designed to prevent further offences being committed while on bail. A curfew requires the defendant to remain indoors during certain hours. These are often imposed for offences which occur at night i.e. burglary. A curfew is only appropriate where the time of day/night is relevant to the pattern of offending. Electronic monitoring (tagging) A curfew can be subject to electronic monitoring (tagging). In addition to preventing further offences being committed on bail, electronic monitoring requirements can also be imposed to address fears of failure to surrender and interference with witnesses. Page 3 of 7

Bail hostels Residence at a bail hostel and a further condition that the defendant complies with the rules of the bail hostel can be used to try to prevent the defendant absconding, and/or interfering with witnesses and/or committing further offences on bail. Surrender of passport In some circumstances it may be necessary for the court to impose a condition that the defendant surrenders his passport to prevent the risk of him absconding. Sureties A surety is usually required where there is a risk of the defendant absconding. A surety’s obligation is to ensure that the defendant surrenders into custody. The surety will agree to forfeit a sum of money if the defendant absconds. Deposit of security The taking of a security is another means of trying to reduce the risk of the defendant absconding. Securities are deposited with the court or the police before the defendant is released on bail. Consequences of breach Breach of a bail condition may result in the defendant being arrested without a warrant and his bail being withdrawn. Procedure If the defendant has been refused bail by the police, he will appear before the next available magistrates’ court in custody. If the prosecution objects to the grant of bail, the prosecutor will outline the objections to the court. Where the accused has previous convictions, these are handed to the court. The defence then presents its arguments for bail to be granted. After hearing both the prosecution and the defence submissions, the court will announce its decision. Where the defendant has a right to bail under s. 4 Bail Act the court must give its reasons if it refuses bail or imposes conditions. A form setting out the decision of the court will also be completed. Consequences of a defendant absconding A defendant who fails to surrender during court proceedings will be arrested and may face difficulty in persuading the court that he should be re-admitted to bail. He faces a real possibility of being remanded in custody until his case is concluded. It is also an offence if a person released on bail fails, without reasonable cause, to surrender to custody. This offence is commonly known as failing to surrender (‘FTS’). An offender summarily convicted of this offence is liable to imprisonment of up to three months and/or an unlimited fine. If dealt with in the Crown Court, he is treated as if he had been guilty of a criminal contempt of court and is liable to up to 12 months’ imprisonment and/or an unlimited fine. Consequences of a defendant failing to abide by conditions If a defendant fails to abide by conditions attached to his bail, he does not commit an offence but does put himself at risk of being arrested and either having his bail conditions tightened or being remanded in custody.

Human Rights

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Article 5(3) of the European Convention on Human Rights provides that every person who has been arrested or detained must be brought promptly before a judge and is entitled to trial within a reasonable time or to release pending trial. A person awaiting trial must always be released unless there are relevant and sufficient reasons to justify his continued detention. Acceptable reasons for refusing bail fall into four categories: risk that the accused will fail to appear; interference with the course of justice; prevention of further offences; and the preservation of public order. Schedule 1 of the Bail Act is broadly compatible with these four categories. Article 5(3) expressly provides that release may be conditioned by guarantees to appear for trial. This makes it permissible to attach conditions to the grant of bail. Allocation of trial Criminal offences are split into three categories: 1. summary only offences which can only be dealt with in the magistrates’ court; 2. either way offences which can be dealt with in the magistrates’ court or the Crown Court; and 3. indictable only offences which can only be dealt with in the Crown Court. In respect of an either way offence, the magistrates have to decide whether it should be dealt with at the magistrates’ court or at the Crown Court. Plea before venue The first part of the process for an either way offence is called plea before venue. This procedure is set out in s. 17A of the Magistrates’ Courts Act 1980 ('MCA'). The procedure for plea before venue is as follows: 1. The charge is read to the defendant. 2. The court will then explain to the defendant that he may indicate whether he would plead guilty or not guilty if the offence were to proceed to trial. 3. The court should then explain to the defendant that if he pleads guilty, the court would then convict the defendant of the offence and proceed to sentencing. It must also explain that the court may commit him for sentence to the Crown Court under s. 3 of the Powers of the Criminal Courts (Sentencing) Act 2000 (‘PCC(S)A’) if the court considers its sentencing powers are inadequate for the offence committed. 4. The court will then ask the defendant whether he would plead guilty or not guilty. 5. If he pleads guilty then the court will move on to consider sentence. 6. If he pleads not guilty or does not indicate a plea, the court will proceed to allocation. Decision as to allocation – s. 19 MCA Where a defendant pleads not guilty (or has given no indication as to plea) to an either way offence, a magistrates’ court must decide whether the offence should be sent to the Crown Court for trial or remain in the magistrates’ court. The key test for the magistrates is whether their sentencing powers will be adequate. Before making a decision the prosecution will inform the court of the defendant’s previous convictions (if any) and both the prosecution and the defence will have an opportunity to make representations as to whether a summary trial or trial on indictment would be the more appropriate. The court will have regard to the allocation guideline. This states that it is important to ensure that all cases are tried at the appropriate level. In general, either way offences should be tried summarily unless:  the outcome would clearly be a sentence in excess of the court’s powers for the offence(s) after taking into account personal mitigation and any potential reduction for a guilty plea; or Page 5 of 7

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for reasons of unusual legal, procedural or factual complexity, the case should be tried in the Crown Court.

The magistrates’ courts’ powers will be insufficient if the outcome would clearly result in a sentence in excess of six months’ imprisonment for a single offence in the magistrates’ court. The court will need to consider the relevant sentencing guidelines and any associated case law. Significantly, the allocation guideline states that in cases with no factual or legal complications the court must bear in mind its power to commit for sentence after trial and, crucially, may retain jurisdiction notwithstanding that the likely sentence might exceed its powers. This means that, in practice, cases are likely to be retained and tried in the magistrates’ court unless the offence(s) was so serious that only the Crown Court should have the power to deal with the defendant. Decision that case should go to Crown Court for trial on indictment – s. 21 MCA If the magistrates decide that the case cannot be tried summarily then the case will be sent forthwith to the Crown Court. Decision that case is suitable for summary trial – s. 20 MCA If, having considered all the above, the court considers that summary trial is more suitable it will explain to the defendant that: The court has decided that summary trial is more suitable. The defendant can consent to be tried summarily or, if he so wishes, be tried by a jury. If he is tried summarily and is convicted, he may still be committed to the Crown Court for sentence. Before making his decision the defendant might ask for an indication of sentence, namely, whether a custodial or non-custodial sentence would be imposed if he were to choose the magistrates and plead guilty. The court is not obliged to provide an indication but, if given, the defendant will be asked whether he wishes to reconsider his plea. If he maintains a not guilty plea then the defendant will either: consent to trial in the magistrates’ court, meaning the case will be adjourned; or elect to be tried by a jury meaning the case will be transferred to the Crown Court. If the defendant chooses not to change his plea to guilty then the indication given will NOT bind any later court in the event that the defendant falls to be sentenced. If he changes his plea to guilty then the magistrates will proceed to sentence. If the court had indicated a non–custodial option then this indication will bind any subsequent bench which sentences. Advantages and disadvantages of a Crown Court and a summary trial When the magistrates have accepted jurisdiction your client can decide whether to consent to summary trial or elect for trial on indictment. You should consider the following when formulating your advice: Summary trial ADVANTAGES

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Less expensive. Trials in the magistrates’ court are cheaper.

Magistrates hear all the evidence even if it is successfully excluded.

Less time consuming. Magistrates’ court trials are listed for hearing far more quickly than trials in the Crown Court and the trial will be far quicker.

Higher conviction rate. The magistrates tend to be more case hardened and they may have tried the defendant in the past.

Less severe sentences. The magistrates are limited in sentencing to a maximum of six months imprisonment (12 months if two or more either way offences).

Crown Court trial ADVANTAGES Higher acquittal rates. A jury can be more sympathetic to the defendant.

DISADVANTAGES Higher powers of punishment. The Crown Court can impose sentences up to the statutory maximum.

“Voir Dire” procedures where the judge hears arguments to exclude evidence in the absence of the jury.

Higher costs. The defendant could be liable to pay both prosecution and defence costs if convicted. Slower. It takes longer for the case to come to trial and there are more formal procedures.

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