This is an extract of our Bail document, which we sell as part of our BPTC Criminal Litigation Notes collection written by the top tier of City Law School students.
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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:
o (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
o (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:
o (a) to appearances for summary offences up until conviction;
o 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:
o (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);
o 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:
o (a) at all appearances for SUMMARY OFFENCES UP TO CONVICTION;
o 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:
o 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.
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.
o A D on 'remand' is obliged to come back to court to continue with the case.
o 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
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:
o 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)):
o '(a) bail grantable in or in connection with proceedings for an offence to a person who is accused or convicted of the offence,
o 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:
o (a) any person who has been sent in custody for trial in the Crown Court;
o (b) any person who has been given a custodial sentence following conviction in the magistrates' court (whether he pleaded guilty or was found guilty) and who is appealing to the Crown Court against conviction and/or sentence;
o (c) any person who is in the custody of the Crown Court pending disposal of his case (so whenever the Crown Court adjourns a trial or adjourns between conviction and sentence, it can grant the accused bail for the period of the adjournment);
o (d) and (e) any person whose case has been decided by the Crown Court but who has applied to the court to state a case for the Divisional Court's opinion or is seeking judicial review of the decision;
o (f) any person to whom the Crown Court has granted a certificate that his case is fit for appeal to the Court of Appeal, whether against conviction or against sentence; and
(g) any person who has been remanded in custody by a magistrates' court on adjourning a case under the PCC(S)A 2000, s. 11, the CDA 1998, s. 52(5), or the MCA 1980, ss. 5, 10, 17C, 18 or 24C, provided the magistrates' court has granted a certificate that, before refusing bail, it heard full argument.
-person charged with murder may ONLY be granted bail by a Crown court judge
-Where a person appears before a m' court charged with murder: the m' court must commit him (in custody) to the Crown Court.
o A Crown court judge must then make a decision about bail as soon as reasonably practicable, and, in any event, within 48 HOURS (excluding ?weekends & public holidays), beginning with day after the day on which the person appears before the m' court.
These provisions apply whether or not the accused is charged with 1+ other offences as well as the murder charge.
Also see below, reverse presumption of bail where charged with murder : court must think no significant risk that accused would/would likely to cause physical/mental injury to any other person if granted bail.
The 'right to bail'/presumption in favour of bail????
Prosecution needs to apply for remand into custody of a D.
Because of the principle of 'right to bail', rebuttal presumption in favour of bail: s4
Bail Act 1976: court must presume that a D is entitled to bail, and it is only on the court's satisfaction that an objection is properly made out that bail can be refused.
the purpose of the presumption = secure the notion that the prosecution has to apply to remove bail as a matter of normal practice.
The right/presumption to bail applies to:
o (a) any person appearing before Crown Court/m' court in course of/in connection with proceedings for an offence; OR who applies to court for bail
(or variation of conditions of bail) in connection with those proceedings;
o (b) any person who has been convicted of an offence and whose case is adjourned for reports before sentencing.
o (c) any person brought before court for alleged breach of a requirement of a community order.
Presumption in favour of bail still applies after conviction but before sentencing where there is an adjournment for the preparation of a PSR before sentence is passed. (although the concerns re a D absconding may be more serious following a conviction).
The right to bail does NOT apply to someone who has already been convicted
(except where sentencing has been adjourned, above), so does NOT apply to:
o (a) those appealing their conviction or sentence; or
(b) Ds being committed for sentence from m' court to Crown Court following conviction in m' court.
o Bail CAN be granted in both cases; but the presumption does not apply.
Both these exceptions are logical:
o (a) re those appealing: a court has already concluded that the D is guilty.
Courts are less anxious about putting a person already determined to be guilty into custody.
o (b) re being committed: it is the view of m' court that the D is deserving of a sentence of more than 6 months (or more if magistrates limit is higher). It is thus a very low risk that a D put into custody at this point will receive a lesser sentence than the time he servile in custody waiting for committal.
In all cases where the right to bail applies: it is the prosecution that has to make the first move rebut the right to bail on a legally specified objection. ??NB, there are time limits for getting a D through the crim justice system; and the right to bail usually becomes absolute if the case has not progressed according to the time limits.
NB: s. 4(1) does not apply to bail from the police station, ALTHOUGH, once a detainee has been charged, PACE imposes on the custody officer a duty to grant him bail unless its refusal can be justified on grounds similar to those which would justify refusing bail to a person entitled to bail under s. 4(1).
Bail following indication of guilty plea at 'plea before venue' hearing :
o In cases where a guilty indication is given (and is then committed for sentence to Crown Court) ? the normal practice is to continue with bail IF
it had been granted previously.
o i.e. would be unusual to alter the position, re bail or custody, that existed before the plea before venue hearing (i.e. if was on bail when pleaded guilty,
usual practice is to continue bail, even if it is anticipated a custodial sentence will be imposed by Crown Court).
NB for MURDER and DRUGS-RELATED offences (see below) ? the presumption of bail is effectively reversed
S25 CJPOA 1994: No bail for Homicide or Rape if previous such conviction (unless exceptional circumstances)
-Court may not grant bail to an accused who is charged with, or has been convicted of, murder/attempted murder/manslaughter/rape/attempted rape (or certain other offences under SOA 2003) IF: he has been convicted of any of these offences
(or culpable homicide) in the past,
o UNLESS are 'exceptional circumstances' which justify it.
-In a case where the previous conviction was for manslaughter; the restriction applies only if the accused received a custodial sentence for that offence.
-"conviction" = widely defined to include a finding that:
o (1) D was not guilty by reason of insanity;
o or (2) was found to have done the act/omission charged in a case where he was unfit to plead.
-Previous convictions in other EU member states are treated as being relevant previous convictions if the corresponding offences in the UK would be so treated.
GROUNDS on which prosecution can object to bail?
The objections mostly following the classification of the offence.
Primary demarcation is between the following types:
o (a) 'indictable' cases (either indictable only, OR either-way cases). Most familiar offences in crime are indictable.
o (b) summary cases, imprisonable: EG---common assault, summary only offence, can have a custodial sentence.
o (c) summary, non-imprisonable: hundreds of such offences, many related to
'road traffic'. Such cases present a problem: what do you do if a D simply won't attend court, but is only charged with a minor offence for which he cannot be punished with custody? ??
The objections are called 'grounds' of objection. Prosecution can take as many or as few as it wishes, and only needs to success in showing one of the grounds.
Conditional bail: If the court considers that the ground would be made out if the D
were to be simply released, but considers that conditions put upon the release of D
would alleviate the concerns about the D's behaviour, such that the concerns about the grounds are no longer 'substantial' ? then D should be granted conditional bail.
Most offences that engage lawyers are indictable offences: All thefts, most violence offences, all the main sexual offences, almost all drugs offences.
'Big Three' grounds for objection to bail
-'Indictable' offences ? 'Big three' grounds for objecting to bail: the 'three primary'
grounds, the original and core grounds, onto which lots of other law has been appended.
o Test (Sch 1 Bail Act 1976, para 2) ? whether, if D is released on bail, there a
'SUBSTANTIAL GROUNDS' for believing that the D would either:
-(a) fail to attend the next hearing (fail to surrender to custody 'FTS');
-(b) commit further offences on bail ('CFO'); and/or
-(c) interfere with witnesses, or otherwise obstruct the course of justice (in relation to himself or any other person).
o Grounds do NOT apply WHERE::
-(1) D is 18+
-and (2) has not been convicted in present proceedings
-and (3) no REAL PROSPECT of custodial sentence.
-The standard of proof/threshold is 'substantial grounds for believing' that, if granted bail, D will behave in a way that the ground specifies. This is not a particularly high test. It is not for the court to conclude that D would behave in the way specified, or even that his behaviour would be more likely than not to include the behaviour in the ground. It is only necessary to show that the fears of the behaviour happening have substance and merit ('substantial grounds for believing').
-The enquiry re whether 'substantial grounds' for believing, is a factual one, but cannot be answered according to the usual rules of evidence, and is not a trial per se;
o so there are no formal rules of evidence in determining if the ground is made out.
o Witnesses can be called (although rare), and hearsay evidence is permitted.
-NB: court applies the RELEVANT FACTORS re the big 3 (see below), which are
-NB: big 3 as applicable to summary offences, are only activated by a trigger event
(a s7 arrest, see below):
o The logic: for offences of lesser seriousness, it is broadly assumed that a D
would not risk FTS/CFO/ interfering with witnesses. However, if his behaviour on bail suggests otherwise and he breaches a condition of bail (or has a history of this), then the grounds for objection become eligible grounds to remand him in custody.
o EXAMPLE: If X is charged with crim damage by way of graffiti with a low value of damage done, the max penalty is 3 months imprisonment. None of the
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