#16090 - Bail - BPC Criminal Litigation (formerly BPTC) 2024/2025

Bail

Adjournments & remands

Case Management & Adjournments

• ‘unnecessary hearings should be avoided by dealing with as many aspects of the case as possible at the same time’.

• The plea should therefore be taken at the first hearing; if this does not happen (or if the offence is triable only on indictment), the court must find out what the plea is likely to be. If a plea is not taken, the obligation to take it applies to the next hearing (the point being that a plea should be taken as soon as possible).

• This guidance is clearly aimed at discouraging applications for adjournments by the defence, though it is submitted that defence advocates may have to take a robust approach in resisting demands for a plea to be entered where, for example, the defence have insufficient information about the nature of the prosecution case.

• Applications for adjournments by the prosecution are also discouraged.

• ‘there is a high public interest in trials taking place on the date set for trial, and trials should not be adjourned unless there is a good and compelling reason to do so

• Although there are of course instances where the interests of justice require the grant of an adjournment, this should be a course of last rather than first resort

Statutory provisions on power to adjourn, Power to adjourn, contained in MCA 1980 ss10(1) and 18(4) [[see below for what you actually need to take from these provisions]]

• MCA 1980, s10:

(1) A magistrates’ court may at any time (whether before or after beginning to try an information) adjourn the trial, and may do so, when composed of a single justice.

(2) The court may when adjourning either fix the time and place at which the trial is to be resumed, or, unless it remands the accused, leave the time and place to be determined later by the court.

(4) On adjourning the trial of an information the court may remand the accused and, where the accused is 18+,SHALL do so [[remand]] if the offence is triable either way and—

(a) on the occasion on which the accused first appeared, or was brought, before the court to answer to the information he was in custody or, having been released on bail, surrendered to the custody of the court; or

OR (b)the accused has been remanded at any time in the course of proceedings on the information;

and, where the court remands the accused, the time fixed for the resumption of the trial shall be that at which he is required to appear or be brought before the court in pursuance of the remand or would be required to be brought before the court but for section 128(3A) below.

• MCA 1980, s18:

(1) Sections 19 to 23 below shall have effect where a person who has attained the age of 18 years appears or is brought before a magistrates’ court on an information charging him with an offence triable either way and—

(a) he indicates under section 17A above that (if the offence were to proceed to trial) he would plead not guilty, or

(b) his representative indicates under section 17B above that (if the offence were to proceed to trial) he would plead not guilty.

(4) A magistrates’ court proceeding under sections 19 to 23 below may adjourn the proceedings at any time, and on doing so on any occasion when the accused is present may remand the accused, and shall remand him if—

(a) on the occasion on which he first appeared, or was brought, before the court to answer to the information he was in custody or, having been released on bail, surrendered to the custody of the court; or

(b) he has been remanded at any time in the course of proceedings on the information;

and where the court remands the accused, the time fixed for the resumption of the proceedings shall be that at which he is required to appear or be brought before the court in pursuance of the remand or would be required to be brought before the court but for section 128(3A) below.

Remanding the accused on adjournments

• References in MCA 1980 ss10 & 18 to “remanding” an accused, mean either:

  • (a) remanding him in custody (i.e. committing him to custody to be brought before the court at the end of the period of remand or at such earlier time as the court may require); OR

  • (b) remanding him on bail in accordance with BA 1976 (i.e. directing him to appear before the court at the end of the period of the remand or, if bail is made continuous, directing him to appear at every time to which the proceedings may be adjourned).

• S18 MCA governs adjournments until mode of trial has been determined

• S10 MCA applies:

  • (a) to appearances for summary offences up until conviction;

  • and (b) to appearances, up until conviction, for either-way offences from after mode of trial has been determined in favour of summary trial

• S10(4) and s18(4) provide: (in almost identical terms) that: on adjourning proceedings for an either-way offences, the court MUST remand the accused unless:

  • (a) he first appeared in answer to a summons or requisition (as opposed to being brought before the court in custody or appearing in answer to police bail);

  • AND (b) he has not been remanded at an earlier hearing in proceedings.

• It follows that the magistrates may, at their discretion, adjourn WITHOUT REMANDING the accused where:

  • (a) at all appearances for SUMMARY OFFENCES UP TO CONVICTION;

  • and (b) at appearances for EITHER-WAY offences up to either a determination for trial on indictment OR a summary conviction

    • PROVIDED: (a) the accused initially appeared in answer to a summons or requisition AND (b) has not been remanded previously

• So there is NO discretion to adjourn without remanding re:

  • Indictable-only offences

  • Either-way offences where prosecution was commenced by way of charge

  • Either-way offences where accused has previously been remanded

• Where a case is simply adjourned, there is no need to fix the date for the next hearing at the time of adjourning;

• CF, if there is a remand the adjournment date must be fixed forthwith, and is the date to which the accused is remanded.

• An accused who is not remanded, and who then fails to appear on the date to which his case is adjourned, commits no offence; BUT, it may be possible either for a warrant to be issued for his arrest; OR for the proceedings to be conducted in his absence.

• An accused who has been remanded on bail commits an offence under BA 1976 s6 if he fails without reasonable cause to answer to his bail.

• MCA 1980 s128(1) provides that: whenever a m’ court has power to remand a person, it may either remand him in custody or bail, in accordance with BA 1976.

Bail

• In any case where D is presented to court, and court cannot conclude the case in one hearing the case will have to be adjourned.

• The word ‘adjournment’ applies to the CASE; it does not describe what happens to the Defendant.

• ‘REMAND’--: when a D is sent away and told to come back another day.

  • A D on ‘remand’ is obliged to come back to court to continue with the case.

  • The remand may either be served in: (a) custody or (b) on bail in the community.

• Ds often misuse the terms: they use the word ‘remand’ to mean ‘remand in custody’, and ‘bail’ to express a remand on bail. They will ‘Will I be remanded?’ to mean ‘will I get bail’.

• It is for the prosecution to apply to have D remanded into custody if that its desire. This is done by presenting ‘objections; on bail:

• Once a prosecution objection to bail has been raised -> it is for the Defence to apply for bail:

  • Bail can be granted subject to conditions; a defence advocate must consider what sort of conditions might alleviate the court’s concerns re the D’s behaviour on bail.

• Bail is an ongoing consideration—can evolve during proceedings, and consequences if D breaches bail.

• All cases commence in magistrates’ court, so the first decision re bail is made by that court (EXCEPT in murder cases only Crown Court judge can grant bail).

• Bail governed by Bail Act 1976 (‘BA’)

• ‘Bail in crim proceedings’ defined as (s1(1)):

  • ‘(a) bail grantable in or in connection with proceedings for an offence to a person who is accused or convicted of the offence,

  • or (b) bail grantable in connection with an offence to a person who is under arrest for the offence or for whose arrest for the offence a warrant (endorsed for bail) is being issued’.

Courts’ Power to grant bail

Bail by magistrates’ courts

• A magistrates’ court, when adjourning a case where the proceedings were commenced by the accused being charged at the police station: (rather than by the issue of a summons or a written charge and requisition) MUST remand the accused.

• The remand may be in custody or on bail. Whenever a magistrates’ court has power to remand a person, it may either remand him in custody or on bail.

• Magistrates also have power to grant bail for: the period of any remand for reports etc. after summary conviction; and remands on bail for medical examination.

• Where a magistrates’ court sends an accused to the Crown Court for trial, he may be kept in custody or released on bail.

• Similarly, committals for sentence may be in custody or on bail.

• Where a magistrates’ court has summarily convicted an accused and passed a custodial sentence it may grant him bail pending the determination of an appeal to the Crown Court or to Divisional Court by way of case stated.

• a person charged with murder may NOT BE granted bail except by Crown Court judge.

Bail by the Crown Court

• The persons to whom the CROWN COURT may grant bail (SCA) are:

  • (a) any person who has been sent in custody for trial in the Crown Court;

  • (b) any person who has been given a custodial sentence following conviction in the magistrates’ court (whether he pleaded...