#10411 - Bail - BPC Criminal Litigation (formerly BPTC) 2024/2025

BAIL

REMAND

• definitions

  • adjournment = case put off to different court session same / another day, regardless of whether remand

  • remand = decision of court to release on bail OR remand in custody when proceedings left un-concluded effect: case adjourned

Remands in mags'

• when will an adjournment be a remand?

  • whenever mags' adjourn, may remand D

  • mags' must make remand decision if:

1. D on bail OR in custody when first appeared in court; OR

2. if has been remanded at any time for proceedings for offence in question

   • must remand:

1. if adjourn during summary trial of either way offence

2. if adjourn during mode of trial procedure for either way offence

3. following committal to CC for trial OR sentence

   • choice of whether to remand OR adjourn if adjourn before verdict on summary only offence

• remand to police custody

  • mags' can remand at police station instead of prison

  • only if necessary to enquire into offences other than ones he is in court for AND must be brought back before mags' as soon as need ceases

Duration of remands in mags' N.B. subject to custody time limits

• maximum duration for single remand, after which D produced before mags' again for further remand =

  • before conviction

    • in custody

1. 3 clear days (police custody)

2. 8 clear days (prison custody) unless either way whenever mags' can re-convene

   1. D can consent to be re-remanded in absentia for up to 24 (3x8) clear days total if legally represented before must appear again

3. 28 clear days (prison custody) if:

   1. D in court AND previously remanded in custody for same offence AND date for next stage fixed (s128A MCA); OR

   2. D has at least 28 days remaining on current custodial sentence

   • on bail

1. any period pros and defence agree

   • after conviction

     • in custody

1. 3 weeks for enquiries / PSR

   • on bail

1. 4 weeks for enquiries / PSR

Remands in CC

• NO simple adjournments

• once sent to CC, judge has power to grant bail for period before matter dealt with i.e. till listed for hearing - subject to custody time limits but NOT remand time limits (s81 SCA)

• once trial starts, judge has absolute discretion whether to remand in custody OR bail overnight and during breaks

CUSTODY TIME LIMITS - also in SGS 18 (Trial process 2)

• definition

  • = max period D can be kept in custody whilst relevant preliminary stage of proceedings is being completed

  • complies with art 5(3) i.e. = 'trial within reasonable time / release pending trial'

• preliminary stage

  • custody time limit ceases to operate at start of trial

  • start of trial =

    • point jury sworn / court accepts G plea (CC)

    • if there is a preparatory hearing, that is deemed to = start of trial (CC)

    • when court begins to hear pros evidence (unless re: hospital order) / accepts G plea (mags')

• time limits N.B. if sent to CC, any time spent in custody in mags' is deducted max is 182 days total

1. summary offences

   1. between first appearance + summary trial - 56 days

2. either way offences

   1. between first appearance + mags' allocate summary trial within 56 days - 56 days

   2. between first appearance + s51 sending OR mags' allocate summary trial after 56 days- 70 days

   3. between s51 sending to CC + start of trial - 182 days

3. indictable only offences

   1. between s51 sending to CC ('forthwith on first appearance') + start of trial - 182 days

• expiry / extension of time limits

  • on expiry, D must be released on bail (BUT see below)

  • on expiry, CPS / pros should:

    1. apply for extension

    • Ds charged with homicide / rape after a pre-con: NOT entitled to bail, so pros do not need to satisfy test below

    • other offences: pros must show (on balance of probs) that:

      1. there is a good + sufficient cause for the extension; AND

      2. it has acted with all die diligence + expedition

----OR----

1. bring D back to court to be released on bail

• although D must be released

  • prison governor CANNOT release D without court order; and

  • CPS NOT liable for breach of statutory duty if fails to return D to court after expiry of time limit

  • NO action against home office for false imprisonment

• limits on bail conditions

  • can only include conditions which must be complied with after release (e.g. residence) NOT a conditions precedent to release (e.g. surety)

• remedies if D continues to be detained in absence of court order

1. apply to CC for bail

2. seek habeus corpus

3. seek JR

RIGHT TO BAIL (s4 BA 1976)

• rebuttable presumption in favour of bail whenever D appears in court (mags' or CC) in course of / in connection to proceedings for offence

• does NOT apply, BUT still discretion to grant bail:

1. after conviction (unless adjourn for PSR) N.B. if plead G at plea before venue and on bail before, unusual to alter position

2. on arrest (unless street bail)

3. on charge

4. when warrant for arrest issued

5. to police bail (when D released without charge) (BUT duty to grant bail akin to s4 (s38(1) PACE))

6. murder - may NOT be granted unless CC think NO significant risk of F committing offence on bail likely to cause mental / physical injury to another

7. murder, manslaughter, rape, serious sexual offence AND pre-con for aforementioned offence (if manslaughter need custodial sentence) can only grant if 'exceptional circumstances which justify it'

8. commit offence whilst on bail:

   1. indictable offence NOT punishable with life court 'need NOT' grant bail

   2. offence punishable with life court 'may NOT' unless no significant risk of D committing offence on bail (presumption reversed)

9. drug-related offences - D tested positive for class A drug AND is NOT cooperating with initial assessment OR follow up may NOT grant bail unless no significant risk of further offences on bail

GROUNDS FOR OBJECTING TO BAIL N.B. need NOT grant if 1+ ground present

Non-imprisonable offences

• always applicable

1. for D's protection;

2. D already serving sentence;

3. insufficient info to make a bail determination

• only applicable if D granted bail AND arrested on warrant for breaching bail

1. SGFB D would

1. fail to surrender;

2. commit further offences;

3. interfere with witnesses;

2. release would lead D to engage in conduct likely to cause mental/physical injury;

3. D previously failed to attend AND court thinks he would again

Imprisonable offences

• summary only

  • always applicable

1. for D's protection;

2. D already serving sentence;

3. insufficient info to make a bail determination

   • only applicable if D granted bail AND arrested on warrant for breaching bail

1. SGFB D would

1. fail to surrender;

2. commit further offences;

3. interfere with witnesses;

2. D previously failed to attend AND court thinks he would again;

3. D on bail at time of alleged offence AND SGFB D would commit offence on bail;

4. violent offences: SGFB D would commit offence likely to cause mental / physical injury / fear of it

• indictable

  • always applicable

1. for D's protection;

2. D already serving custodial sentence;

3. insufficient info to make a bail determination;

4. current offence is either way AND was committed whilst on bail;

5. D has already failed to surrender to bail in current case;

6. case adjourned for PSR on conviction AND impracticable to complete PSR whilst D on bail;

   • applicable if prospect of custodial sentence

1. D has broken bail in current case;

2. SGFB D would

1. fail to surrender;

2. commit further offences;

3. interfere with witnesses;

   • drug-related offences (see above)

   • offences punishable with life imprisonment (see above)

FACTORS IN SUPPORT OF GROUNDS FOR OBJECTING

1. nature + seriousness of offence AND probable method of dealing with D - if serious, D may be tempted to abscond to avoid severe sentence; not conclusive

2. character

3. antecedents

4. associations

5. community ties

6. record for having answered bail in past

7. strength of evidence against D - strong, conviction likely more likely to abscond; weak, acquittal likely less likely to abscond; balance injustice of custody + acquittal with risk of absconding

8. if court satisfied SGFB D would commit offence on bail, risk that D may cause physical/mental injury

9. misuse of controlled drugs

UNCONDITIONAL BAIL

• D bailed subject to primary duty to surrender to custody at next court hearing

• failure to surrender = criminal offence

CONDITIONAL BAIL

• D bailed subject to:

1. primary duty to surrender to custody at next court hearing; AND

2. secondary duty to fulfil condition

Breach of a bail condition

• criminal offence

• BUT can be arrested without warrant and brought before court for reconsideration of bail

• can be arrested in anticipation of a breach

• the hearing

  • bring D before court

  • investigate breach (rules of evidence do NOT apply, no Ws)

When can conditions be imposed?

• only

1. to prevent (i.e. court perceives real risk):

   1. failure to surrender;

   2. commission of further offences;

   3. interference with Ws;

2. for D's protection

Conditions

* = designed to prevent absconding

= designed to prevent commission of offences when on bail

= designed to prevent interference w/ witnesses

1. * provision of a phone number

2. * attend interview with legal advisor before next court appearance

3. * residence at particular address, possibly probation hostel, possibly doorstep condition

4. * notification of change of address

5. * reporting to a police station

6. * surrender passport

7. curfew, possibly + electronic tag (tag = alternative to custody)

8. geographical restrictions

9. non-contact w/ witnesses

10. * surety - only where there is a risk of absconding

    • = person (the surety) other than D promises money to court if person breaches bail

    • recognisance

      • = surety's ID verified - usually in court, but can be outside

      • surety can be made continuous so don't have to do recognisance at each hearing

      • can be accepted by: JP, justices' clerk, inspector+, prison...