1) Bail
What is required for bail?
At the magistrates’ court, when the case is adjourned (not concluded), a defendant may be
placed in custody or released on bail within the community conditionally or not subject to the
duty to surrender.
When is the right to bail available?
Right to bail is presumed before conviction, after conviction if the court has adjourned the
sentence to obtain further reports before sentencing, murder charge in crown court (not
magistrates’ court) where the judge believes he will unlikely cause harm to the society while
on bail. However, it is not presumed for serious offences (unless circumstances state
otherwise) for murder/manslaughter/rape/serious sex offence.
However, for indictable/summary/non-imprisonable offences, bail is not available.
What is required for a bail application?
Bail application requires the following. Regarding the nature and seriousness of the offence,
if the offence is so serious, he is more likely to abscond, in which a custodial sentence is
required. Regarding the defendant’s character and antecedents, his previous convictions may
be used as an aggravating factor. Regarding his ties to the community, if he has strong ties, he
is less likely to abscond. Regarding his previous bail grants, if he has previous convictions
where he did not abscond, he is less likely to abscond. Regarding the strength of the evidence
against the defendant, if it is strong, he is more likely to abscond.
What conditions may be placed on bail?
Conditions may be placed only if necessary. For example, surety, security deposit placed into
court, geographical restrictions, not meeting the witnesses, surrendering one’s passport,
curfew, reporting to the police station, or providing either a permanent residence address or
enquiring into a non-permanent address.
What is the procedure for bail applications?
First, the defendant’s solicitor will apply for bail to the court. CPS may challenge to remand
in custody. Any challenges will be heard in a mini-court. If refused, the defendant’s solicitor
may apply again but only on the same facts and laws as the first application. If refused again,
he can make another application only if there was a change in circumstances.
What is the procedure for appealing bail?
If the magistrates’ court refuses bail, defendant can appeal for bail at the Crown Court.
If the magistrates’ court grants bail, CPS can challenge bail at the Crown Court.
,What happens if bail is breached?
If the defendant breaches bail, he may be arrested within 24 hours. If he admits or proves his
breach, the police may impose more onerous conditions or place him in custody. If it is a
minor transgression, he may receive a warning to comply with those conditions.
What happens if the defendant absconds bail?
Defendant may abscond bail by failing to surrender to custody at the specified time and place
by not attending court without a reasonable excuse. As a result, the court may issue a warrant
to arrest him immediately. If the case is listed for trial, without the defendant’s presence, the
Magistrates’ Court may impose maximum 3 years’ imprisonment and/or an unlimited fine.
The Crown Court may charge with criminal contempt and impose maximum 12 years’
imprisonment and/or an unlimited fine.
, 2) First Hearing Before Magistrates’ Court
How are offences classified?
Summary only/either way offences should be first tried summarily at a hearing. If the
defendant pleads guilty, he will be sentenced immediately. If he pleads not guilty, the offence
will be allocated as either way offence.
Summary only/either way offences where guilty plea was anticipated requires CPS to prepare
an expedited file for the early first hearing, which should be disclosed to the defendant for his
solicitor to advise on the plea. If the defendant pleads guilty, Magistrates’ court may sentence
him or send him to Crown Court for sentencing. If he pleads not guilty, Magistrates’ court
may conduct a summary trial or send him to Crown Court.
Indictable-only offences where plea is not certain, CPS must disclose evidence to defendant’s
solicitor to ensure a firm plea has been taken. First, at the Magistrates’ court, D must confirm
name and address to court, not enter guilty plea, and fill a case management form with the
date for the next hearing at Crown Court (Plea and Case Management Hearing). In Crown
Court, if defendant pleads guilty, he will be sentenced immediately. If not, he may be
allocated to an either way offence hearing or fix a trial date for summary only offence.
What is required for a representation order?
Solicitor may represent defendant if Form CRM14 is completed as part of the interest of
justice test. It requires that the defendant has a mental disability, he is likely to lose
freedom/liberty, the case involves a substantial question of law, it is for tracing witnesses, or
legal representation is granted by other means. The defendant may then pay costs to the
solicitor.
What is the solicitor’s role?
First, the solicitor should conduct an interview and open the defendant’s file. He may confirm
instructions in writing and contact potential witnesses. Second, he should apply for a
representation order. Third, he must request advance information from CPS. Lastly, he should
consider bail application issues. When making a trial preparation form, he should include the
defendant’s reasons for not pleading guilty, issues and points of law, witnesses, agreed
statements, special measures, and hearsay/bad character applications envisaged.
