Thursday 30 November 2006
We began this week with a continuing look at bail; a popular examination topic in the case study section. Bail is the release of a person subject to a duty to surrender to custody in the future.
The powers available to the custody officer to grant bail are determined by whether the suspect has been charged or not. We covered the non-charged person previously.
Where the suspect has been charged at the police station otherwise than on a warrant already ‘backed for bail’, the custody officer must decide whether to keep the suspect in custody until he can be brought before the Magistrates’ Court at the next sitting or whether to release the suspect either unconditionally or on bail: s38(1) POLICE AND CRIMINAL EVIDENCE ACT 1984 (as amended by s28 CRIMINAL JUSTICE AND PUBLIC ORDER ACT 1994).
This requires that the custody officer should release the suspect unless he has a reasonable belief that one or more of the grounds provided by s28(2) applies:
(a) the name and address of the suspect cannot be ascertained or the custody officer has reasonable grounds for doubting whether the name and address furnished by the suspect is his real name and address; or
(b) the custody officer has reasonable grounds for believing that the person arrested will fail to appear in court to answer bail; or
(c) in the case of a person arrested for an imprisonable offence, the custody officer has reasonable grounds for believing that the detention of the person arrested is necessary to prevent him from committing an offence; or
(d) where the suspect is charged with a non-imprisonable offence, the custody officer has reasonable grounds for believing that the suspect’s detention is necessary to prevent him from causing physical injury to any other person or from causing loss or damage to property; or
(e) the custody officer has reasonable grounds for believing that the detention of the suspect is necessary to prevent him from interfering with the investigation of offences or of a particular offence; or
(f) the custody officer has reasonable grounds for believing that the detention of the suspect is necessary for his own protection.
Where the custody officer decides that bail is appropriate, the suspect can be released either unconditionally or with conditions. Under s27 CRIMINAL JUSTICE AND PUBLIC ORDER ACT 1994, the officer has wide powers to impose conditions which are similar to those available to a court under s3 BAIL ACT 1976. The only limitation is that the police cannot require the suspect to live in a bail hostel.
Section 54 CRIME AND DISORDER ACT 1998 extends the power of the police to require a person to give security before being released on bail, removing the restriction only allowing them to do so if there is a reason to believe that the person is unlikely to remain in Great Britain. The rules are the same as for security from a court (see below).
Commonly imposed conditions:
require the suspect to live at a specified address
to observe a curfew
regularly report to a police station
surrender of a passport
Conditional bail is granted to overcome any objection to unconditional bail and the custody officer must be able to justify the conditions and note them in the suspect’s custody record.
The question of bail arises in a criminal prosecution where the court adjourns the proceedings for the case to be heard at a later date, or, when the case is partly heard and is adjourned for the lunch period, or overnight or for a longer period.
Bail granted in criminal proceedings is governed by the provisions of s4 BAIL ACT 1976 which gives the suspect a prima facie right to bail:
(a) at all stages of the prosecution until conviction;
(b) after conviction, where the court adjourns the case for reports;
(c) in a number of other circumstances, including for example, where the accused is before the magistrates’ in breach of a probation order.
Where the accused is charged with an offence punishable with imprisonment, the accused’s prima facie right may be suspended where one or more of the following conditions contained in Part 1, Schedule 1, Bail Act 1976 applies:
(a) the court is satisfied that there are substantial grounds for believing that if released on bail he would:
(i) fail to surrender to custody; or
(ii) commit an offence while on bail; or
(iii) interfere with witnesses or otherwise obstruct the course of justice, whether in relation to himself or some other person;
(b) the court is satisfied that he should be kept in custody for his own protection, or, if he is a juvenile, for his own welfare;
(c) he is already serving a custodial sentence for some other reason;
(d) the court is satisfied that it has not been practicable to obtain sufficient information for the purpose of taking the decisions required by 1976 Act for want of time since the commencement of the proceedings against him;
(e) having been released on bail in connection with the proceedings for the same offence, he has been arrested for absconding;
(f) where the case has been adjourned for enquiries or a report, it appears to the court that it would be impracticable to complete the enquiries or make the report without keeping the defendant in custody.
In addition to the powers outlined above, Schedule, Paragraph 2A BAIL ACT 1976, as amended by s26 CRIMINAL JUSTICE AND PUBLIC ORDER ACT 1994, a defendant need not be granted bail where:
(a) the offence with which he is charged 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 at the date of the offence.
The CRIME AND DISORDER ACT 1998 has introduced a further restriction on an accused’s right to bail where he is charged with murder, or attempted murder, or manslaughter, rape or attempted rape. Where the suspect has a previous conviction for one or more of these offences, bail may only be granted where there are “exceptional circumstances” for doing so: s25 CRIMINAL JUSTICE AND PUBLIC ORDER ACT 1994, as amended by s56 of the 1998 Act.
Finally, the Criminal Justice Act 2003 creates a presumption that bail will be refused if the defendant fails to appear without good reason, or tests positive for a Class A drug & refuses to be assessed or refuses to address his addicition.
Where the accused is charged with an offence which is not punishable with imprisonment, for example, careless driving, the court is required to apply the conditions laid down in Part II, Schedule 1, 1976 Act.
A defendant need not be granted bail where:
(1) it appears to the court that having been previously granted bail in criminal proceedings, he has failed to surrender to custody in accordance with his obligations under the grant of bail and the court believes, in view of that failure, the defendant if released on bail would fail to surrender to custody;
(2) the court is satisfied that he should be kept in custody for his own protection or, if he is a child or young person, for his own welfare;
(3) he is already in custody in pursuance of any sentence of any court;
(4) having been released on bail in connection with proceedings for the present offence, he has already arrested for absconding.
In practice, bail is rarely refused where the accused is charged with a non- impressionable offence.
It is the duty of the court to consider whether bail is applicable. When considering the issue of bail, the 1976 Act grants the court an inquisitorial function, and, in theory, is required to enquire into the matter of bail in every case. In practice, where the prosecution does not object to bail being granted, the court is unlikely to formally consider the matter. During the early stages of the case, the Crown Prosecution Service will normally indicate that they propose to make an application to adjourn the case either to provide advanced disclosure or to prepare the committal papers.
Where the issues of bail is considered, the procedure will be as follows:
(1) The prosecution will put their observations to the court either through the Crown Prosecutor or by the police officer in charge of the investigation. The precise grounds of their objection to bail under the 1976 Act will be outlined to the court and where the accused has previous convictions, a copy will he handed to the court and to the defence lawyer. A police officer will give evidence and answer questions from the witness box. As the ordinary rules of evidence do not apply, evidence of the accused’s criminal record will become known to the magistrates, and, evidence may be heard by the court which, at trial, would offend the rule against the admission of hearsay or be ruled as inadmissible on the basis that it is mere speculation or opinion evidence.
(2) The defence is entitled to cross-examine the prosecution, although the witness may refuse to answer any question which may prejudice any police investigation of any criminal offence.
(3) The defence advocate may then address the court on the issue of bail. This should include a detailed consideration of the prosecution’s objections to bail and put forward reasons as to why the accused should be granted bail, including the accused’s willingness to accept any conditions that the court may impose.
(4) The court will then consider the application, taking into account the matters outlined in Paragraph 9, Part I, Schedule 1 to the 1976 Act. These matters include:
(a) The nature and seriousness of the offence and the probable method of dealing with the defendant for it
Whilst bail can be granted to a person accused of committing a serious offence such as robbery, common sense suggests that the more serious the offence the less likely it will be that the accused will surrender to custody or observe the conditions laid down in the granting of bail. Note the restrictions on the granting of bail to an accused, charged with rape, attempted rape, murder, attempted murder and manslaughter under s25 CRIMINAL JUSTICE AND PUBLIC ORDER ACT 1994, as amended by s56 CRIME AND DISORDER ACT 1998.
(b) The accused’s character, antecedents, associations and community ties
“Character” has a broad meaning in bail applications to include the accused’s previous convictions.
“Antecedents” includes the type of person with whom the accused socialises, lives with etc.
“Community ties” relates to how strongly the accused identifies with his local community, including whether he has family ties; regular work; house; mortgage; and how long he has lived in the area.
(c) The accused’s record if previously granted bail
It will be a strong argument in favour of granting bail where the accused has previously responded to bail. The presumption in favour of bail will be rebutted where the accused has previously committed offences whilst on ball.
(d) The strength of the evidence against the accused
At an early stage in the proceedings, it will be difficult to assess the strength of the evidence against the accused. ‘Whilst the prosecution will try to convince the court about the strength of their case, it is unlikely that the final results of the police investigation will be disclosed. The prosecution is unlikely to disclose the names of their witnesses and any forensic evidence will probably not be available at this stage. The defence will seek to undermine the prosecution case by submitting that the prosecution evidence against the accused is not strong and, by submitting, that, at trial, they will seek, for example, to have ruled inadmissible evidence of the accused’s confession or the exclusion of identification evidence.
The magistrates normally retire to consider the issue of bail and returning to court to announce their decision. A record must be made of the decision and, if bail is refused, the reason for the refusal must be recorded, and a copy given to the defendant.
It is quite common for the court to release an accused on bail subject that he complies with conditions specified by the court. By s3(6) BAIL ACT 1976 a defendant may be required by the court to comply with such requirements as appear to the court to be necessary to secure that he.
(a) surrenders to custody;
(b) does not commit an offence while on bail;
(c) does not interfere with witnesses or otherwise obstruct the course of justice;
(d) makes himself available for the purpose of enabling enquiries or a report to be made to assist the court in dealing with him for the offence.
The conditions imposed on a grant of bail will either be:
(1) sureties;
(2) security by the accused;
(3) miscellaneous conditions.
(1) Sureties
One of the most common conditions imposed by the courts is to require that a defendant should provide a surety. A surety is a person who agrees to pay all, or, part of a specified sum of money, if the defendant should fail to surrender to custody. The money is not called for in advance, but may be forfeited should the person bailed fail to surrender to custody. A surety will not be acceptable unless he is well known the defendant. Part of the surety’s obligation is to ensure that the defendant surrenders to custody.
In deciding the amount to be paid by the surety, the court will have regard to:
(a) the surety’s financial resources; and
(b) his character and any previous convictions; and
(c) his proximity whether in point of residence, or relationship to the person for whom he is to be a surety.
s55 CRIME AND DISORDER ACT 1998 amends s120 MAGISTRATES’ COURTS ACT 1980, and introduces a reformed procedure to determine whether the court should order the immediate and automatic forfeiture of a recognisance where the defendant fails to answer to bail. After declaring the recognisance to be forfeited, the court must issue a summons to the surety to appear before the court to explain why he should not pay the sum. The court may then exercise its discretion whether to order all, part of the sum should be paid.
(2) Security
Traditionally, a security has been required if it appeared to the court that it was unlikely that the accused would not remain in Great Britain and therefore not surrender to bail. In the event of the accused not surrendering to custody the deposited security was likely to be forfeited.
s54(1) CRIME AND DISORDER ACT 1998 amends s3(5) BAIL ACT 1976 by extending the practice of requiring a security from the accused or someone on his behalf whether or not he is likely to abscond within or outside Great Britain. The court is required to take note of the means of the defendant or the person giving the security.
In practice, securities are not taken.
(3) Other conditions
The court has wide powers to impose conditions of the accused to ensure that he answers to bail. Frequently imposed conditions include: the requirement that the accused lives at a specified address; that he submits to a specified curfew; and that he reports to a specified police station at certain times; that he surrenders his passport; and that he will not contact certain individuals, which usually relates to prosecution witnesses. s54(2) CRIME AND DISORDER ACT 1998 enables a court granting bail under s3(6) BAIL ACT 1976, to impose a condition that the accused should attend an interview with a legal adviser.
Until 1981 it was possible to make bail applications on each occasion when the person remanded in custody was produced to the court.
R v Nottingham justices, ex parte Davies [1980] decided that magistrates need not consider a full bail application after the initial remand unless there were new considerations relevant to bail which were not brought to the court’s attention at a previous hearing (a change of circumstance). Because a first bail application was made at short notice on brief instructions it was the court’s practice to permit an application at the first hearing and one further full ball application to the court thereafter. The position has now been changed by s154 CRIMINAL JUSTICE ACT 1988. This Act inserts into Part 11, Schedule 1 BAIL ACT 1976 an additional three clauses. It provides that if the court decides not to grant a defendant bail, it is the court’s duty to consider, at each subsequent hearing while the person is in custody, whether he ought to be granted bail. Section 154(2) states that at the first hearing after that at which the court decides not to grant the defendant bail he may support an application for bail with any argument as to fact or law that he desires (whether or not he has advanced that argument previously). Thereafter the court need not hear arguments as to fact or law to which it was referred previously. Thus the position now is that at the first and second hearings the defendant is entitled to make application for bail but thereafter he must show a change in circumstance to enable him to make a further bail application should the court remand in custody on the second occasion.
A change in circumstances sufficient to merit a further bail application need not be a major change.
R v Blyth juvenile Court ex parte G [1991] the Divisional Court held that, in the case of an 11 year old charged with murder, the fact that she had been moved from secure to non-secure local authority accommodation and then to a detention centre 46 miles away from her home (and the family of the victim) constituted a sufficient difference from the situation at the date of the previous bail application to entertain a further application. In practice parliamentary draftsmen appear to have overlooked the possibility that defendants may first appear before the court either on a warrant of further detention or an application by the Crown Prosecution Service for a remand for a period of up to three days in police cells to enable investigation and interrogation into further offences. If the police indicate that they wish a warrant of further detention then normally there will be no difficulty since a warrant of further detention does not come within the provisions of s154 CRIMINAL JUSTICE ACT 1988. If, however, the defendant has been charged with an offence then the provisions of s154 apply. A defendant may in practice not seek to make a ball application because if released he would simply be re-arrested by the police for offences which they are enquiring into. It is common, therefore, for the defence lawyers to agree a period in police custody. The provisions of s154 may therefore apply and the only application the person would thereafter get would be the automatic right under s154 of a second hearing which will in effect be his one and only application for ball. It is the practice in some courts for any application made by a duty solicitor or where a person is produced to the court at short notice to disregard that bail application for the purposes of s154. One should be most careful to ensure that one knows the court’s practice, as the consequences to any defendant can be profound.
A person refused bail (i.e. remanded in custody) must normally be brought before the court at intervals of not more than eight clear days. If the accused consents, he can be remanded in custody for a period of 28 days, although then his case will be further adjourned in his absence on a weekly basis. Section 128A MCA 1980 provides for remands in custody for more than eight days where the accused has already been remanded in custody by the Magistrates’ Court for the same offence, and the accused is before the court - but only if after giving the parties the opportunity to make representations, it has set a date on which it expects the next stage in the proceedings to occur (other than a further remand hearing), and only:
(1) for a period ending not later than that date; or
(2) for a period of 28 days, whichever is the less.
A remand for such a period does not affect the right of the accused to apply for bail during that period. Further, where a court is considering exercising the power conferred by s128A, it must have regard to the total length of time which the accused would spend in custody if it were to exercise the power. In the case of this extended period of remand in custody under s128A there is no question of the accused’s consent being necessary.
Under the CRIMINAL JUSTICE ACT 1982 the Crown Court has the power to hear a further application from a defendant who has been refused bail by a Magistrates’ Court. If, as will usually be the case, legal aid has been granted for the Magistrates’ Court proceedings this will also cover an application to a Crown Court judge in chambers. This is known as “Judge in Chambers” bail applications.
Where the magistrates have considered a full application the application is made on a simple printed form accompanied by the magistrates’ full hearing certificate to the Crown Court judge. The full hearing certificate is normally the form indicating that the defendant has exercised all his rights of making bail applications. Applications to the Crown Court judges for bail are usually heard swiftly; however, 24 hours’ notice is required to the Crown Prosecution Service and in practice very few cases are heard within 48 hours (although it is possible). The defendant has no right to be present at the hearing of his application which may be as fully argued as before the magistrates. If a Crown Court judge grants bail there are usually conditions attached to that bail. A problem subsequently may arise; s3(8) provides that where a court has granted bail in criminal proceedings that court or, where that court has committed a person on bail to the Crown Court for trial or to be sentenced or otherwise dealt with, that court or the Crown Court may on application:
(1) by or on behalf of the person to whom bail was granted, or
(2) by the prosecutor or a constable, vary the conditions of bail, or impose conditions in respect of bail which has been granted unconditionally.
Following s18 Criminal Justice Act 2003 the prosecution can now appeal to a judge of the Crown Court against the decision of the magistrates’ court to grant bail where for any offence punishable by imprisonment.
Under s7 BAIL ACT there can either be an immediate warrant or alternatively a warrant backed for bail where the defendant fails to appear. Absconding is punishable by up to three months’ imprisonment or a £5,000 fine, or by twelve months’ imprisonment or limitless fine by Crown Court. The offence is created by s6 BAIL ACT which provides that if a person who has been released on bail in criminal proceedings fails without reasonable excuse to surrender to custody he shall be -guilty of an offence.
We then turned to a rather large subject, that of trials. Over the coming weeks we shall be considering every aspect of a trial in both the magistrates’ court & Crown Court.
Summary offences may be tried only in a magistrates’ court. Offences which are triable either way can be tried in a Magistrates’ Court in circumstances which we shall cover later. In either case, the procedure used in a summary trial is the same and is largely provided for by the MAGISTRATES’ COURTS ACT 1980.
Magistrates’ Courts have jurisdiction to try summary offences committed within their respective counties (usually trial takes place in the Magistrates’ Court for the petty sessional area in which the alleged offence occurred). Additionally a Magistrates’ Court has jurisdiction over summary offences committed outside its county:
1. under the MAGISTRATES’ COURTS ACT 1980 s2(6), where in addition to an offence (either summary or triable either way) alleged to have been committed in the court’s county the accused is charged with any other summary offence wherever committed;
2. under the MAGISTRATES’ COURTS ACT 1980 s2(2), where it is “necessary or expedient” that a person charged be tried ‘jointly or in the same place as” another person; and
3. under s3 MAGISTRATES’ COURTS ACT 1980, offences committed within 300 yards of a county border and continuing offences begun in one county and completed in another may be treated as having been committed in either of the relevant counties. A similar rule applies to offences against persons or property committed in a moving vehicle which at the time crossed a county boundary.
Where an offence is triable either way, the Magistrates’ Court is not limited by its county boundary. It is not uncommon to find the Crown Prosecution Service recharging defendants before a different court from that which originally heard the matter, to ensure that all matters come before one court. In effect, therefore, in relation to matters which are triable either way the prosecution has a choice of courts.
An information achieves two distinct and viral purposes:
The information may arise in three ways:
Following the laying of an information, the court decides whether or not to issue a summons requiring the accused to attend at the court. Although often an automatic process, this procedure is nevertheless judicial in nature: R v Gateshead Justices ex parte Tesco Stores Ltd [1981].
The following rules govern the contents of the information:
We will continue with this next week.
The powers available to the custody officer to grant bail are determined by whether the suspect has been charged or not. We covered the non-charged person previously.
Where the suspect has been charged at the police station otherwise than on a warrant already ‘backed for bail’, the custody officer must decide whether to keep the suspect in custody until he can be brought before the Magistrates’ Court at the next sitting or whether to release the suspect either unconditionally or on bail: s38(1) POLICE AND CRIMINAL EVIDENCE ACT 1984 (as amended by s28 CRIMINAL JUSTICE AND PUBLIC ORDER ACT 1994).
This requires that the custody officer should release the suspect unless he has a reasonable belief that one or more of the grounds provided by s28(2) applies:
(a) the name and address of the suspect cannot be ascertained or the custody officer has reasonable grounds for doubting whether the name and address furnished by the suspect is his real name and address; or
(b) the custody officer has reasonable grounds for believing that the person arrested will fail to appear in court to answer bail; or
(c) in the case of a person arrested for an imprisonable offence, the custody officer has reasonable grounds for believing that the detention of the person arrested is necessary to prevent him from committing an offence; or
(d) where the suspect is charged with a non-imprisonable offence, the custody officer has reasonable grounds for believing that the suspect’s detention is necessary to prevent him from causing physical injury to any other person or from causing loss or damage to property; or
(e) the custody officer has reasonable grounds for believing that the detention of the suspect is necessary to prevent him from interfering with the investigation of offences or of a particular offence; or
(f) the custody officer has reasonable grounds for believing that the detention of the suspect is necessary for his own protection.
Where the custody officer decides that bail is appropriate, the suspect can be released either unconditionally or with conditions. Under s27 CRIMINAL JUSTICE AND PUBLIC ORDER ACT 1994, the officer has wide powers to impose conditions which are similar to those available to a court under s3 BAIL ACT 1976. The only limitation is that the police cannot require the suspect to live in a bail hostel.
Section 54 CRIME AND DISORDER ACT 1998 extends the power of the police to require a person to give security before being released on bail, removing the restriction only allowing them to do so if there is a reason to believe that the person is unlikely to remain in Great Britain. The rules are the same as for security from a court (see below).
Commonly imposed conditions:
require the suspect to live at a specified address
to observe a curfew
regularly report to a police station
surrender of a passport
Conditional bail is granted to overcome any objection to unconditional bail and the custody officer must be able to justify the conditions and note them in the suspect’s custody record.
The question of bail arises in a criminal prosecution where the court adjourns the proceedings for the case to be heard at a later date, or, when the case is partly heard and is adjourned for the lunch period, or overnight or for a longer period.
Bail granted in criminal proceedings is governed by the provisions of s4 BAIL ACT 1976 which gives the suspect a prima facie right to bail:
(a) at all stages of the prosecution until conviction;
(b) after conviction, where the court adjourns the case for reports;
(c) in a number of other circumstances, including for example, where the accused is before the magistrates’ in breach of a probation order.
Where the accused is charged with an offence punishable with imprisonment, the accused’s prima facie right may be suspended where one or more of the following conditions contained in Part 1, Schedule 1, Bail Act 1976 applies:
(a) the court is satisfied that there are substantial grounds for believing that if released on bail he would:
(i) fail to surrender to custody; or
(ii) commit an offence while on bail; or
(iii) interfere with witnesses or otherwise obstruct the course of justice, whether in relation to himself or some other person;
(b) the court is satisfied that he should be kept in custody for his own protection, or, if he is a juvenile, for his own welfare;
(c) he is already serving a custodial sentence for some other reason;
(d) the court is satisfied that it has not been practicable to obtain sufficient information for the purpose of taking the decisions required by 1976 Act for want of time since the commencement of the proceedings against him;
(e) having been released on bail in connection with the proceedings for the same offence, he has been arrested for absconding;
(f) where the case has been adjourned for enquiries or a report, it appears to the court that it would be impracticable to complete the enquiries or make the report without keeping the defendant in custody.
In addition to the powers outlined above, Schedule, Paragraph 2A BAIL ACT 1976, as amended by s26 CRIMINAL JUSTICE AND PUBLIC ORDER ACT 1994, a defendant need not be granted bail where:
(a) the offence with which he is charged 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 at the date of the offence.
The CRIME AND DISORDER ACT 1998 has introduced a further restriction on an accused’s right to bail where he is charged with murder, or attempted murder, or manslaughter, rape or attempted rape. Where the suspect has a previous conviction for one or more of these offences, bail may only be granted where there are “exceptional circumstances” for doing so: s25 CRIMINAL JUSTICE AND PUBLIC ORDER ACT 1994, as amended by s56 of the 1998 Act.
Finally, the Criminal Justice Act 2003 creates a presumption that bail will be refused if the defendant fails to appear without good reason, or tests positive for a Class A drug & refuses to be assessed or refuses to address his addicition.
Where the accused is charged with an offence which is not punishable with imprisonment, for example, careless driving, the court is required to apply the conditions laid down in Part II, Schedule 1, 1976 Act.
A defendant need not be granted bail where:
(1) it appears to the court that having been previously granted bail in criminal proceedings, he has failed to surrender to custody in accordance with his obligations under the grant of bail and the court believes, in view of that failure, the defendant if released on bail would fail to surrender to custody;
(2) the court is satisfied that he should be kept in custody for his own protection or, if he is a child or young person, for his own welfare;
(3) he is already in custody in pursuance of any sentence of any court;
(4) having been released on bail in connection with proceedings for the present offence, he has already arrested for absconding.
In practice, bail is rarely refused where the accused is charged with a non- impressionable offence.
It is the duty of the court to consider whether bail is applicable. When considering the issue of bail, the 1976 Act grants the court an inquisitorial function, and, in theory, is required to enquire into the matter of bail in every case. In practice, where the prosecution does not object to bail being granted, the court is unlikely to formally consider the matter. During the early stages of the case, the Crown Prosecution Service will normally indicate that they propose to make an application to adjourn the case either to provide advanced disclosure or to prepare the committal papers.
Where the issues of bail is considered, the procedure will be as follows:
(1) The prosecution will put their observations to the court either through the Crown Prosecutor or by the police officer in charge of the investigation. The precise grounds of their objection to bail under the 1976 Act will be outlined to the court and where the accused has previous convictions, a copy will he handed to the court and to the defence lawyer. A police officer will give evidence and answer questions from the witness box. As the ordinary rules of evidence do not apply, evidence of the accused’s criminal record will become known to the magistrates, and, evidence may be heard by the court which, at trial, would offend the rule against the admission of hearsay or be ruled as inadmissible on the basis that it is mere speculation or opinion evidence.
(2) The defence is entitled to cross-examine the prosecution, although the witness may refuse to answer any question which may prejudice any police investigation of any criminal offence.
(3) The defence advocate may then address the court on the issue of bail. This should include a detailed consideration of the prosecution’s objections to bail and put forward reasons as to why the accused should be granted bail, including the accused’s willingness to accept any conditions that the court may impose.
(4) The court will then consider the application, taking into account the matters outlined in Paragraph 9, Part I, Schedule 1 to the 1976 Act. These matters include:
(a) The nature and seriousness of the offence and the probable method of dealing with the defendant for it
Whilst bail can be granted to a person accused of committing a serious offence such as robbery, common sense suggests that the more serious the offence the less likely it will be that the accused will surrender to custody or observe the conditions laid down in the granting of bail. Note the restrictions on the granting of bail to an accused, charged with rape, attempted rape, murder, attempted murder and manslaughter under s25 CRIMINAL JUSTICE AND PUBLIC ORDER ACT 1994, as amended by s56 CRIME AND DISORDER ACT 1998.
(b) The accused’s character, antecedents, associations and community ties
“Character” has a broad meaning in bail applications to include the accused’s previous convictions.
“Antecedents” includes the type of person with whom the accused socialises, lives with etc.
“Community ties” relates to how strongly the accused identifies with his local community, including whether he has family ties; regular work; house; mortgage; and how long he has lived in the area.
(c) The accused’s record if previously granted bail
It will be a strong argument in favour of granting bail where the accused has previously responded to bail. The presumption in favour of bail will be rebutted where the accused has previously committed offences whilst on ball.
(d) The strength of the evidence against the accused
At an early stage in the proceedings, it will be difficult to assess the strength of the evidence against the accused. ‘Whilst the prosecution will try to convince the court about the strength of their case, it is unlikely that the final results of the police investigation will be disclosed. The prosecution is unlikely to disclose the names of their witnesses and any forensic evidence will probably not be available at this stage. The defence will seek to undermine the prosecution case by submitting that the prosecution evidence against the accused is not strong and, by submitting, that, at trial, they will seek, for example, to have ruled inadmissible evidence of the accused’s confession or the exclusion of identification evidence.
The magistrates normally retire to consider the issue of bail and returning to court to announce their decision. A record must be made of the decision and, if bail is refused, the reason for the refusal must be recorded, and a copy given to the defendant.
It is quite common for the court to release an accused on bail subject that he complies with conditions specified by the court. By s3(6) BAIL ACT 1976 a defendant may be required by the court to comply with such requirements as appear to the court to be necessary to secure that he.
(a) surrenders to custody;
(b) does not commit an offence while on bail;
(c) does not interfere with witnesses or otherwise obstruct the course of justice;
(d) makes himself available for the purpose of enabling enquiries or a report to be made to assist the court in dealing with him for the offence.
The conditions imposed on a grant of bail will either be:
(1) sureties;
(2) security by the accused;
(3) miscellaneous conditions.
(1) Sureties
One of the most common conditions imposed by the courts is to require that a defendant should provide a surety. A surety is a person who agrees to pay all, or, part of a specified sum of money, if the defendant should fail to surrender to custody. The money is not called for in advance, but may be forfeited should the person bailed fail to surrender to custody. A surety will not be acceptable unless he is well known the defendant. Part of the surety’s obligation is to ensure that the defendant surrenders to custody.
In deciding the amount to be paid by the surety, the court will have regard to:
(a) the surety’s financial resources; and
(b) his character and any previous convictions; and
(c) his proximity whether in point of residence, or relationship to the person for whom he is to be a surety.
s55 CRIME AND DISORDER ACT 1998 amends s120 MAGISTRATES’ COURTS ACT 1980, and introduces a reformed procedure to determine whether the court should order the immediate and automatic forfeiture of a recognisance where the defendant fails to answer to bail. After declaring the recognisance to be forfeited, the court must issue a summons to the surety to appear before the court to explain why he should not pay the sum. The court may then exercise its discretion whether to order all, part of the sum should be paid.
(2) Security
Traditionally, a security has been required if it appeared to the court that it was unlikely that the accused would not remain in Great Britain and therefore not surrender to bail. In the event of the accused not surrendering to custody the deposited security was likely to be forfeited.
s54(1) CRIME AND DISORDER ACT 1998 amends s3(5) BAIL ACT 1976 by extending the practice of requiring a security from the accused or someone on his behalf whether or not he is likely to abscond within or outside Great Britain. The court is required to take note of the means of the defendant or the person giving the security.
In practice, securities are not taken.
(3) Other conditions
The court has wide powers to impose conditions of the accused to ensure that he answers to bail. Frequently imposed conditions include: the requirement that the accused lives at a specified address; that he submits to a specified curfew; and that he reports to a specified police station at certain times; that he surrenders his passport; and that he will not contact certain individuals, which usually relates to prosecution witnesses. s54(2) CRIME AND DISORDER ACT 1998 enables a court granting bail under s3(6) BAIL ACT 1976, to impose a condition that the accused should attend an interview with a legal adviser.
Until 1981 it was possible to make bail applications on each occasion when the person remanded in custody was produced to the court.
R v Nottingham justices, ex parte Davies [1980] decided that magistrates need not consider a full bail application after the initial remand unless there were new considerations relevant to bail which were not brought to the court’s attention at a previous hearing (a change of circumstance). Because a first bail application was made at short notice on brief instructions it was the court’s practice to permit an application at the first hearing and one further full ball application to the court thereafter. The position has now been changed by s154 CRIMINAL JUSTICE ACT 1988. This Act inserts into Part 11, Schedule 1 BAIL ACT 1976 an additional three clauses. It provides that if the court decides not to grant a defendant bail, it is the court’s duty to consider, at each subsequent hearing while the person is in custody, whether he ought to be granted bail. Section 154(2) states that at the first hearing after that at which the court decides not to grant the defendant bail he may support an application for bail with any argument as to fact or law that he desires (whether or not he has advanced that argument previously). Thereafter the court need not hear arguments as to fact or law to which it was referred previously. Thus the position now is that at the first and second hearings the defendant is entitled to make application for bail but thereafter he must show a change in circumstance to enable him to make a further bail application should the court remand in custody on the second occasion.
A change in circumstances sufficient to merit a further bail application need not be a major change.
R v Blyth juvenile Court ex parte G [1991] the Divisional Court held that, in the case of an 11 year old charged with murder, the fact that she had been moved from secure to non-secure local authority accommodation and then to a detention centre 46 miles away from her home (and the family of the victim) constituted a sufficient difference from the situation at the date of the previous bail application to entertain a further application. In practice parliamentary draftsmen appear to have overlooked the possibility that defendants may first appear before the court either on a warrant of further detention or an application by the Crown Prosecution Service for a remand for a period of up to three days in police cells to enable investigation and interrogation into further offences. If the police indicate that they wish a warrant of further detention then normally there will be no difficulty since a warrant of further detention does not come within the provisions of s154 CRIMINAL JUSTICE ACT 1988. If, however, the defendant has been charged with an offence then the provisions of s154 apply. A defendant may in practice not seek to make a ball application because if released he would simply be re-arrested by the police for offences which they are enquiring into. It is common, therefore, for the defence lawyers to agree a period in police custody. The provisions of s154 may therefore apply and the only application the person would thereafter get would be the automatic right under s154 of a second hearing which will in effect be his one and only application for ball. It is the practice in some courts for any application made by a duty solicitor or where a person is produced to the court at short notice to disregard that bail application for the purposes of s154. One should be most careful to ensure that one knows the court’s practice, as the consequences to any defendant can be profound.
A person refused bail (i.e. remanded in custody) must normally be brought before the court at intervals of not more than eight clear days. If the accused consents, he can be remanded in custody for a period of 28 days, although then his case will be further adjourned in his absence on a weekly basis. Section 128A MCA 1980 provides for remands in custody for more than eight days where the accused has already been remanded in custody by the Magistrates’ Court for the same offence, and the accused is before the court - but only if after giving the parties the opportunity to make representations, it has set a date on which it expects the next stage in the proceedings to occur (other than a further remand hearing), and only:
(1) for a period ending not later than that date; or
(2) for a period of 28 days, whichever is the less.
A remand for such a period does not affect the right of the accused to apply for bail during that period. Further, where a court is considering exercising the power conferred by s128A, it must have regard to the total length of time which the accused would spend in custody if it were to exercise the power. In the case of this extended period of remand in custody under s128A there is no question of the accused’s consent being necessary.
Under the CRIMINAL JUSTICE ACT 1982 the Crown Court has the power to hear a further application from a defendant who has been refused bail by a Magistrates’ Court. If, as will usually be the case, legal aid has been granted for the Magistrates’ Court proceedings this will also cover an application to a Crown Court judge in chambers. This is known as “Judge in Chambers” bail applications.
Where the magistrates have considered a full application the application is made on a simple printed form accompanied by the magistrates’ full hearing certificate to the Crown Court judge. The full hearing certificate is normally the form indicating that the defendant has exercised all his rights of making bail applications. Applications to the Crown Court judges for bail are usually heard swiftly; however, 24 hours’ notice is required to the Crown Prosecution Service and in practice very few cases are heard within 48 hours (although it is possible). The defendant has no right to be present at the hearing of his application which may be as fully argued as before the magistrates. If a Crown Court judge grants bail there are usually conditions attached to that bail. A problem subsequently may arise; s3(8) provides that where a court has granted bail in criminal proceedings that court or, where that court has committed a person on bail to the Crown Court for trial or to be sentenced or otherwise dealt with, that court or the Crown Court may on application:
(1) by or on behalf of the person to whom bail was granted, or
(2) by the prosecutor or a constable, vary the conditions of bail, or impose conditions in respect of bail which has been granted unconditionally.
Following s18 Criminal Justice Act 2003 the prosecution can now appeal to a judge of the Crown Court against the decision of the magistrates’ court to grant bail where for any offence punishable by imprisonment.
Under s7 BAIL ACT there can either be an immediate warrant or alternatively a warrant backed for bail where the defendant fails to appear. Absconding is punishable by up to three months’ imprisonment or a £5,000 fine, or by twelve months’ imprisonment or limitless fine by Crown Court. The offence is created by s6 BAIL ACT which provides that if a person who has been released on bail in criminal proceedings fails without reasonable excuse to surrender to custody he shall be -guilty of an offence.
We then turned to a rather large subject, that of trials. Over the coming weeks we shall be considering every aspect of a trial in both the magistrates’ court & Crown Court.
Summary offences may be tried only in a magistrates’ court. Offences which are triable either way can be tried in a Magistrates’ Court in circumstances which we shall cover later. In either case, the procedure used in a summary trial is the same and is largely provided for by the MAGISTRATES’ COURTS ACT 1980.
Magistrates’ Courts have jurisdiction to try summary offences committed within their respective counties (usually trial takes place in the Magistrates’ Court for the petty sessional area in which the alleged offence occurred). Additionally a Magistrates’ Court has jurisdiction over summary offences committed outside its county:
1. under the MAGISTRATES’ COURTS ACT 1980 s2(6), where in addition to an offence (either summary or triable either way) alleged to have been committed in the court’s county the accused is charged with any other summary offence wherever committed;
2. under the MAGISTRATES’ COURTS ACT 1980 s2(2), where it is “necessary or expedient” that a person charged be tried ‘jointly or in the same place as” another person; and
3. under s3 MAGISTRATES’ COURTS ACT 1980, offences committed within 300 yards of a county border and continuing offences begun in one county and completed in another may be treated as having been committed in either of the relevant counties. A similar rule applies to offences against persons or property committed in a moving vehicle which at the time crossed a county boundary.
Where an offence is triable either way, the Magistrates’ Court is not limited by its county boundary. It is not uncommon to find the Crown Prosecution Service recharging defendants before a different court from that which originally heard the matter, to ensure that all matters come before one court. In effect, therefore, in relation to matters which are triable either way the prosecution has a choice of courts.
An information achieves two distinct and viral purposes:
- it is the charge to which the accused pleads at the commencement of a summary trial; and
- it is the procedural device which leads to the issue of a summons in those instances where the accused’s first appearance before the court is secured by summons.
The information may arise in three ways:
- by the prosecutor delivering a signed written allegation against the accused to the court;
- by personal appearance before a magistrate or magistrates’ clerk, who then reduces the oral allegation to writing; and
- by the allegation being written down on a charge sheet at a police station and being read over to the accused, who is then given a copy (the charge sheet is then delivered to the Magistrates’ Court).
Following the laying of an information, the court decides whether or not to issue a summons requiring the accused to attend at the court. Although often an automatic process, this procedure is nevertheless judicial in nature: R v Gateshead Justices ex parte Tesco Stores Ltd [1981].
The following rules govern the contents of the information:
- An information must not allege more than one offence, but it may allege in the alternative different ways of committing that offence.
- Reasonable particulars of the nature of the charge must be disclosed, but it is not required that every legal element of the alleged offence be disclosed. If a statutory offence is charged, reference must be made to the statute and section covered.
- Two or more persons may be charged with joint commission of an offence.
- Where two or more information’s are laid against one accused or where two or more persons are individually charged in separate information’s, such information’s may nevertheless be heard together.
We will continue with this next week.
posted by John Robotham at 5:45 AM
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