#4820 - Bail And Mode Of Trial - Criminal Litigation

After the accused has been charged with an offence, the police will either release him on police bail or detain him in police custody to appear before the magistrates when the court next sits.

Bail can be defined as the “release of a person subject to a duty to surrender to custody at an appointed time or place”. It is governed by the Bail Act 1976.

There is a presumption of a right to bail for all Ds prior to conviction (unless charged with serious offence – see below).

Exceptions to the right to bail:

• s.25 Criminal Justice and Public Order Act 1994 – this will be pretty clear cut

  • UNLESS there are exceptional circumstances which justify the bail

• Para 2: D wont be granted bail if the court is satisfied that there are substantial grounds (para 1.3.3) for believing that the defendant would:

  • Fail to surrender to custody

  • Commit an offence whilst on bail

  • Interfere with witnesses or otherwise obstruct the course of justice, whether in relation to himself or another

• Para 2A: D wont be granted bail if:

  • He has committed an indictable/either-way offence AND

  • He was already on bail

  • There is no requirement for substantial grounds

In determining whether to refuse a grant of bail, the magistrate will take into account the para 9 factors:

• The nature and seriousness of the offence:

• The more serious the offence the greater the chance of a lengthy imprisonment on conviction so more likely the prisoner will abscond.

  • The less serious the offence, the more likely the prisoner wont abscond.

• The character, record, associations and community ties of the defendant:

  • Weigh up evidence of bad character vs. good character

  • Previous convictions vs. none

  • Associate with criminals/co-defendants vs. no such associations

  • Good community ties can mean having a family, a house, length of time in the area

• The defendant’s previous bail record:

  • Has he failed to surrender in the past?

• The strength of the evidence of the defendant committing the offence:

  • strong vs. weak prosecution evidence

• Would the defendant commit further offences on bail?

• Any other factors which are relevant:

  • Here look at things like – is he a drug addict – will he need to shoplift to get drugs?

STEP 4: Bail conditions

S.3 Bail Act 1976 provides various conditions that can be attached to the grant of bail. Before attaching a condition, the court must consider that condition to be relevant, proportionate and enforceable.

• Sureties:

  • The surety will agree to forfeit a sum of money if the defendant absconds. All the person standing surety has to do is prove they have the money, they don't have to hand it over.

  • Normally by a family member or close friend

• Deposit of Security:

  • Here, money actually passes hands. A person granted bail (or a third party) will agree over money/valuables which will be liable to forfeiture if the defendant absconds.

  • EXAM: don't suggest this if the D is broke/homeless.

• Residence:

  • A condition of residence is a condition where the accused lives/sleeps at a specified address.

  • The police can go round and check any time that they are there.

• Reporting:

  • This requires the D to report to the police station a certain number of times a day (the more serious the offence, the more times he has to report).

  • This has the effect of restricting movement of the accused

• Exclusion:

  • The court may restrict movement of D by making it a condition he doesn't go to a certain area while on bail, or to a specific place, or see a certain person

  • This is often an alcohol-licensed venue or exclusion from seeing his wife

• Curfews:

  • Remain indoors during certain hours

  • Applicable for crimes that occur at night (e.g. burglary)

• Bail Hostels:

  • Used if a D doesn't have a fixed address – provides D with a residence & curfew

• Surrender of passport:

  • This is when there is an international dimension to the D or his offence (i.e. D not from UK or has connections abroad).

2) Allocation/Mode of Trial

Offences are split into 3 categories:

• Summary only – dealt with in magistrates court

• Either-way offences – magistrates court or Crown Court

• Indictable only – Crown Court

All offences will start off at the Magistrates court and after one (or two) hearings will be sent to the Crown Court – s.51 Crime and Disorder Act 1998.

Therefore, in order to decide whether an either-way offence should be dealt with at the MC or the C, the magistrates would conduct a plea before venue followed by mode of trial procedure (only if D stated ‘not guilty’ or gave no plea).

Immediately before the mode of trial procedure there will be a plea before venue. The procedure is set out in s.17A Magistrates Court Act 1980:

• The charge is written down and read to the D – s.17A(3)

• The court will explain to D that he may indicate whether he would please guilty/not were the case to proceed to trial

• The court should then explain to D that if he pleads guilty the court may sentence D or commit him for sentence at the CC under s.3 Powers of the Criminal Court (Sentencing) Act 2000 if the court considers its sentencing powers inadequate.

• The court will then ask D whether he would plead guilty/not

• If he pleads not guilty or doesn't indicate a plea, then the court shall proceed to the mode of trial hearing. There, s.19(3) MCA the magistrates will regard the nature of the offence, the surrounding circumstances etc.

Crown Court or Summary Trial?

The DEFENDANT CAN CHOOSE whether to remain in the MC or to elect for trial in the Crown Court.