Criminal Lit Bail PDF

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Criminal Litigation notes on bail...

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Criminal Lit Week 7&8 – Bail Bail Act 1976 

S4 provides for the presumption in favour of bail. It provides that people should be granted bail unless there are exception or reasonable grounds for believing that if bail were granted the defendant would: 

Fail to surrender

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Commit further offences

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Interfere with witnesses

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Bail shouldn’t be granted for their own protection (this is rare)

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↑ this is the legal test for bail found in schedule 1 of the act

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It’s a primary piece of legislation that really hasn’t been updated that much since it was introduced

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You can only submit 2 bail applications in the absence of a new argument or unless there is a change in circumstances

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If you are refused bail in the magistrates court you can appeal to the crown court

Factors affecting the decision for bail 

Paragraph 9 of schedule 1 of the act provides us with some factors to take into account of whether the above legal test should be met for bail

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These are: 

The nature and seriousness of the crime

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The character antecedent and community ties

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The defendants record and previous convictions

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The strength of the evidence against the defendant

Conditional bail 

Conditional bail is bail with further restrictions

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You can only apply conditional bail if it is necessary to prevent the defendant from the exceptions

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There is no fixed list of bail conditions

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Common conditions include the following: 

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Sureties – this is where someone like a relative of the defendant enters into a promise to say the defendant will return after bail, this is back up by a

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recognisance by offering something such as money. If the defendant absconds they won’t get the money back. This is why you often hear in America ‘bail is set as $1m’ etc. the person taking on the surety must understand the obligation they are taking on, have some influence over the defendant and have the necessary funds. 

Security – this is where the money is actually paid to the court but it is very rare

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Reporting to the police station at set times

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Curfew by electronic tag

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Non-communication with prosecution witnesses

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Fixed place of residence

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Geographical restrictions

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Surrender of travel documents such as a passport

Procedure for bail 

You must submit a written application for bail

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You cannot make repeated applications for bail if it gets refused, unless there is a change in circumstance

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Even though the defendant is the applicant the prosecution go first to outline their objections to bail

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A summary of facts will be given

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There will be reference to antecedents such as offences whilst previously on bail, their previous compliance with orders etc.

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The defence then try to mitigate those arguments and allay the courts fears

Refusing bail 

If police bail is withheld the defendant must appear at a magistrates court no later than the first sitting after he is charged with the offence

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Where the defendant is on bail an adjournment is called a remand

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Rebuttable presumptions in favour of bail – this applies after the conviction only if the case is adjourned for reports

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Grounds for withholding bail under schedule 1 include the following:

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Imprionsable indictable offences

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Imprisonable summary offences

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 

Non-imprisonable offences

Certain grounds do not apply where: 

D has attained the age of 18 and has not been convicted in the proceedings and it appears to the court that there is no real prospect that D will be sentenced to a custodial sentence in the proceedings

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Failure to surrender, commit offence while on bail or interfere with witnesses etc.

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D is already on bail

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D has been arrested for absconding Reason as to why bail is refused Failure to surrender

Residence Reporting Conditions given on bail so Surety that it is Security granted

Likely to commit further offences Exclusion zone Curfew Permeant residence

Interference with witnesses Condition to not contact witnesses Exclusion zones

Tagging

Tagging Bail hostel Surrender of passport

Further reasons for refusal of bail for prisonable offences 

D has failed to surrender to custody and the court believes in view of that failure that he would fail to surrender to custody if granted bail

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D was on bail at the date of the present alleged offence and the court is satisfied that there are substantial grounds for believing that he would commit an offence while on bail

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D would commit an offence by engaging in conduct that would cause physical / mental injury (domestic violence cases)

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Ds own protection is at stake

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D is serving a custodial sentence for another offence

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D has been arrested for absconding in the present proceedings and the court is satisfied that if released on bail D would fail to surrender to custody or commit an

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offence while on bail or interfere with witnesses or otherwise obstruct the course of justice 

The court has insufficient information to grant bails

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D refuses to undergo a drugs test

Further reasons for refusal of bail for non-prisonable offences 

D is under 18 or has been convicted and he has failed to surrender to custody and the court believes in view of that failure that he would fail to surrender to custody if bail was granted

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For Ds own protection

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D is serving a custodial sentence for another offence

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D is under 18 or has been convicted and has been arrested for absconding in the present proceedings and the court is satisfied that if released on bail D would fail to surrender to custody commit an offence wile on bail or interfere with witnesses or otherwise obstruct the course of justice

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D has been arrested for absconding in present proceedings and the court is satisfied that if released on bail D would commit an offence by engaging in conduct that would cause physical/mental injury (domestic violence cases).

Serious offences 

Criminal justice and public order act 1994, s25 states that a person charged with or convicted of an offence listed in s25 and who has been previously convicted of any such offence shall be granted bail only if the court is satisfied that there are exceptional circumstances which justify it

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S25 offences include murder, manslaughter and rape

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Murder – only a crown court judge can grant bail. A person charged with murder may not be granted bail unless the court is of the opinion that there is no significant risk of him committing, while on bail, an offence that would be likely to cause physical or mental injury to anyone else

Length of remand in custody 

Generally remand in custody cannot exceed 8 days but

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D can consent to being remanded in absence if there is a legal representative acting for him but can only be remanded in absence on up to 3 consecutive occasions

Repeated bail applications 

If bail is refused at the second hearing the court need not hear arguments as to fact or law which it has previously heard

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To justify another application to the magistrates D must present arguments which the court has not heard previously

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In R (B) v Brent Youth Court 2020 laid down what is meant by a change in circumstance. The question is whether there are any new considerations which were not before the court when the accused was last remanded in custody

Bail applications in the crown court 

When bail is refused after a fully argued application the magistrates must issue a certificate of full argument

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D can then apply to the crown court for bail which is usually heard in chambers

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D has no right to be produced from prison but may appear by video link

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The procedure is the same as in the magistrates court (prosecution objections to bail followed by the defence attempting to refute those objections)

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If unsuccessful a further application can be made only if there is new information to out to the court

The consequences of failing to surrender 

If the court accepts there is a good reason for Ds absence D will be remanded on bail as before

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If D claims to be unfit to attend court a medical certificate to that effect should be produced

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Otherwise the possible consequences include:

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A bench warrant for Ds arrest

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A warning letter to Ds last known address

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Trial I absence of F

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Forfeiture of surety’s recognizance

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Conviction and sentence for offence of absconding

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Reduced chance of being granted bail in the future

There is a separate offence within itself of failing to surrender to custody. This will only be committed if the failure was without reasonable cause. The sentence for this does not have to be proportionate to the sentence for the main offence

Effect on Ds chance of being granted bail again in the future 

The presumption in favour of bail ceases to apply unless there is no real prospect that the defendant will be sentenced to a custodial sentence in the proceedings

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D is less likely to be granted bail in the future- Ds record of answering bail in the past is a relevant consideration

Breach of bail conditions 

A police officer may arrest D without a warrant if there is reasonable grounds for believing that D is not likely to surrender to custody or D has broken or is likely to break ant condition of bail or

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A surety has given written notice to the police that D is unlikely to surrender to custody and that the surety wishes to be relieved of their obligations

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Breach of bail conditions is not a criminal offence it simply gives rise to a power of arrest

Arrest for breach of bail 

D must be brought before a magistrate within 24 hours (excluding Sundays)

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There are two key questions for the magistrate: 1. Is D likely to abscond or breach a bail condition or 2. Has D already broken a condition? If yes, 3. Should D be granted bail and if so on what conditions?

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A magistrate cannot withhold bail under if D has not yet been convicted and there is no real prospect that he will receive a custodial sentence

The prosecution can appeal against someone being granted bail 

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P can appeal to the crown court against a magistrates court decision to release D on bail if: 

D is charged with an imprisonable offence

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The prosecution is conducted by the CPS

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The CPS objected to bail at the bail hearing

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P gives oral notice of appeal at the end of the bail hearing before D is released and

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P serves written confirmation within the next 2 hours

The appeal will be heard within 48 hours (excluding weekends)

Custody time limits 

Summary offences – 56 days between the first court appearance and the start of the summary trial

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Either way offences in magistrates court – 70 days between the first appearance and summary trial or sending to the crown court for trial

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Either way offences in crown court – 112 days between sending to the crown court for trial and the start of the trail

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Indictable only offences – 182 days between the day the case was sent to crown court and the start of the trial

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If the relevant custody time limit expires before trial D must be released on bail

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The prosecution may apply before the expiry of the relevant time limit for an extension:

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They must show on balance of probabilities that there is good and sufficient reason for extension and

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That they have conducted the case with due diligence and expedition

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