Pre-Trial Procedure: Bail or Custody PDF

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Summary

Pre-Trial Procedure:
Conditions for Bail
Requirements for Custody detainment
Decision to charge
CPS Powers...

Description

Pre-Trial Procedure: Bail or Custody? Disposal options Charge – decision usually by Crown Prosecution Service (see CPS “full code” test) NFA – No further action Informal Warning – for v. minor cases, not on crim record. Formal/Police Caution – will appear on record, avoids court Conditional Caution – as above but with conditions attached Penalty Notice – used for minor offences, appear on record. The decision to prosecute Code for Crown Prosecutors Full Code test – 2 stage test: 1. Evidential test – is there a realistic prospect of conviction This is an objective test. It means that a [court] is more likely than not to convict the defendant.” 2. Interests of justice test – is it in the public interest to prosecute? https://www.cps.gov.uk/publication/full-code-test Alternative: “Threshold test” (Code for Crown Prosecutors para 5.2) Applied in limited circumstances where “full code” test not met but circumstances / seriousness of case justify the making of an immediate charging decision. Intended to keep D in custody Prosecutors must determine whether the following conditions are met: there is insufficient evidence currently available to apply the evidential stage of the Full Code Test; and there are reasonable grounds for believing that further evidence will become available within a reasonable period; and the seriousness or the circumstances of the case justifies the making of an immediate charging decision; and there are continuing substantial grounds to object to bail in accordance with the Bail Act 1976 and in all the circumstances of the case it is proper to do so.

What is bail? Everyone charged with an offence is deemed to be ‘on remand’.

Remand: 1. Remand in custody 2. Remand on conditional bail 3. Remand on unconditional bail - released on their own recognisance so long as they attend the court on trial date. What is unconditional bail? Release from custody subject only to an obligation to return. When will bail be considered? ‘Pre-charge bail’ (police bail) granted by a Custody Officer following arrest; custody time clock is paused ‘Post-charge bail’ (bail to court) granted by a CO; may be subject to conditions ‘Court bail’ granted by a court; may be subject to conditions Bail also arises as an issue after conviction but before sentence or pending an appeal Competing interests Unconvicted defendants should be permitted to remain at liberty until trial (linked to the idea of presumption of innocence – there are human rights implications of keeping someone in custody pre-conviction) Society has an interest in protecting itself from further criminal conduct / harm to the process of justice Why does the question of bail arise? Right to bail in Article 5 ECHR: “Everyone arrested and detained [for an offence] shall be brought promptly before a judge … and shall be entitled to trial within a reasonable time [and] to release pending trial…” Right to bail in the Bail Act s.4: Prima facie right to bail; on the face of it “A person to whom this section applies shall be granted bail except as provided in Schedule 1 to this Act.”

How long can a person be remanded for? Remand on bail - no limit but subject to the requirement for trial in a reasonable time. Remand in custody - initial limit for Magistrates = 8 days; thereafter 28 days (s.128(A) MCA 1980). Within 8 days another application of bail is made. The court reviews the grounds for giving bail and whether this needs to change.

Then every 28 days after. Make a new application if circumstances change If D consents and is represented s/he can be remanded in custody for up to 3 consecutive hearings in his/her absence . Overall ‘custody time limits’ s.22 Prosecution of Offences Act 1985.

Time Limits

Refusing bail for imprisonable offences - Schedule 1 grounds Para 2 - Substantial grounds for believing: D would Fail to surrender to court (FTS)* D would offend on bail* D would interfere with witnesses/course of justice* If prosecution can make out one of the above factors then the court can displace the presumption of bail.

Para 2A – D suspected of either way/indictable offence and already on bail* Para 3 - D’s own protection Para 4 - D already on a custodial sentence Para 5 - Lack of time to obtain information Para 6 - D has already FTS on this offence* Exceptions to the right of bail (imprisonable offences) Sch 1, Part 1, para 1A (inserted by LASPO 2012): If it appears to the court that there is no real prospect that the defendant will be sentenced to a custodial sentence – Then the court cannot refuse him bail using the five criteria with a *. The factors to be considered by the court - see para 9 The court must consider the following: Nature and seriousness of the offence and probable sentence (aggravating factors?) D’s character, antecedents, associations and community ties (personal details of his life) D’s previous bail record Strength of the evidence Any other relevant matter Example Paul has been charged with robbery. He has three previous convictions for robbery, two related firearms offences plus one conviction for witness intimidation. He has three previous convictions for Failure to Surrender (s.6 Bail Act 1976) What are the likely grounds for the prosecution objecting to bail? Grounds: Offend whilst on bail? Pre-cons for similar offences Interfere with witnesses? Pre-con for witness intimidation Fail to surrender? Pre-cons for failing to surrender whilst previously on bail

Re-applying and appealing D can apply for bail twice on the same facts Thereafter the court need not consider submissions unless there is a material change in circumstances or legal argument (or 28 days have elapsed) A magistrates’ court must issue a certificate of full argument if they refuse a full application D can apply to the Crown Court (judge’s room hearings) D can apply to the Crown Court following committal (at sentence) or sending (at allocation) The Prosecution can appeal a grant of bail to the Crown Court if it objected at the initial hearing. Example Carol applies for bail but is remanded in custody on a charge of theft on 2nd November. The

ground is FTS. She is remanded again on 9th November. Again the ground is FTS. She unsuccessfully appeals to the Crown Court. Can she apply for bail again prior to trial? What if she discovers she is pregnant? Exception to right of bail s.25 Criminal Justice and Public Order Act 1994 If D is charged with murder, manslaughter or rape (or attempts) AND has been convicted of any of these offences previously s/he cannot be granted bail unless there are exceptional circumstances Charged with murder with no pre cons? Can only be granted bail by a judge of the Crown Court - s.115 Coroners and Justice Act 2009). Example George is 44 and has been charged with manslaughter. He has a previous conviction for murder from 20 years ago for which he was released 9 years ago. Does George have a right to bail? - No as his presumption for bail is displaced by virtue of s25 of the CJPOA 1994.

Conditional bail When / why are conditions imposed? If necessary to prevent the common grounds of FTS / offend whilst on bail / interfere with witnesses Who can impose them? Custody Officer post-charge or Court

Common types of conditions: Risk = FTS: Sureties, Security, Residence, Reporting to police, surrender passport; provide telephone number Risk = Offend: Curfew, tagging, bail hostel, exclusion zone Risk = Interfere: Not to contact prosecution witnesses, exclusion zone Consequences of breach of conditions Note - FTS is an offence under Bail Act 1976, s.6; Court may issue a warrant for arrest – (attracts a fine or imprisonment). Breach of other bail conditions is not an offence; but D can be arrested on reasonable belief that s/he has/is likely to breach a bail condition If court is satisfied D has/might FTS or has/might breach a condition it can RIC or impose more onerous conditions. How to make a bail application

Take instructions (from police if you represent the CPS; from D if you represent the accused). Work out the facts of the case and the evidence. Make enquiries with outside organisations if necessary (e.g. a bail hostel). D is brought before the court (Note: video links with prisons used regularly if D is in custody) Prosecution outline the grounds for refusing bail, each ground will be supported by reference to relevant factors. Defence reply to the prosecution objections to bail – deal with each ground in turn. Keep it short and to the point. Be willing to answer questions. Remember: Bail can usually only be refused if one or more of the grounds in Schedule 1 of the Bail Act 1976 are made out. Follow the bail template (on Blackboard)....