Being granted bail is important to a suspect for a number of reasons. Refusal of bail may have a significant effect on the outcome of the trial as it may become difficult to consult with lawyers and prepare an adequate defence. There is also the unpleasant aspect of being remanded in custody if the bail is refused. In making its decision a court may be influenced by any of the factors listed in section 1 of the Bail Act 1976. These include: the nature of the offence, the likely result of the conviction, the strength of evidence against the defendant and the defendant’s character.
The court will also consider whether the accused should be kept in custody for their own protection and will not grant bail where the accused is already serving a prison sentence or where there has been insufficient time to obtain information as to the criteria for bail. But when the charge is murder, rape or manslaughter and the accused has a previous conviction for such an offence s.25 of the Criminal Justice and Public Order Act 1994 (CJPOA) states that bail should not be granted. Similarly, the presumption in favour of bail is reversed where someone is charged with a further indictable offence which appears to have been committed while on bail.
Such an example, and a case that highlights the problems with bail, is R v Hagans (1992). Hagan was jailed for life for the rape and murder of a 23 year old girl. He committed this offence while on bail for another rape charge. This case highlights that bail conditions can easily be broken and innocent people suffer. The CJPOA would not have allowed bail if s.25 had not been challenged and reformed under s.56 of the Crime and Disorder Act 1998.
In the case of Cabballero v UK (2000), Caballero challenged s.25 by going to the European Court of Human Rights (ECHR). The ECHR said s.25 was a breach of the right to a fair trial. So s.56 of the Crime and Disorder Act 1998 amended s.25 and said that bail can be granted in ‘exceptional circumstances’.
People who commit criminal offences whilst on bail are known as ‘bail bandits’. Over the years the public and governments have been come very worried over this and the case of Hagan highlights the problem where bail bandits are committing serious offences. The CJPOA was partly aimed at cracking down on bail bandits. It states that no bail will be granted to suspects who offend whilst on bail as it has been estimated that 25% of offenders commit offence whilst on bail. Despite it obviously being very necessary to crackdown on bail bandits as they are endangering the public and making a mockery of the law, it does increase the prison population.
There are a number of problems with the bail system. A high number of those refused bail are found not guilty, many are eventually given non-custodial sentences and too many people are being held in custody. There have, however, been several initiatives proposed and some implemented to assist the system such as Bail Support Schemes. These are set up to offer advice, counselling and surveillance to those who are granted bail. Bail Hostels are run by the probation service and offer accommodation for defendants awaiting trial which give the defendant freedom, whilst at the same time supervision.
If a defendant decides not to have a lawyer to represent them at their trial, they could still instruct a solicitor to help them prepare their case and to represent them at the preliminary hearings, thus taking advantage of their knowledge of procedure, points of law and tactics.
They could then ‘sack’ their solicitor just before the trial so that they can represent themselves. They may be able to get legal aid for their case, but even if the case is considered minor and would not entitle them to legal representation in court, a solicitor may still be able to advise them under the legal aid advice and assistance scheme.
Unrepresented defendants have the right to have a ‘McKenzie friend’ in court with them. This person can sit with the defendant, take notes, and offer quiet suggestions, but is not allowed to address the court. This right was established in a case called McKenzie v McKenzie, but since many courts are not familiar with the case, or with unrepresented defendants, it is wise for the defendant to have a copy of the judgment if they wish to have a McKenzie friend. Even if they are confident about their defence, it can be very useful to have someone with them to take notes, leaving them free to concentrate on the court proceedings.
Within the courts there are several ways by which people can obtain free legal advice. These include solicitors who may offer free legal advice, however, the time period may be restricted to half an hour or so, and this is usually done to attract customers. Some solicitors may charge a small fee, or not offer this service at all.
Law centres offer legal advice to people in great need, for example if their income is low. Law centres deal mainly with claims related to welfare, discrimination, housing and employment matters, and are usually very accessible and offer suitable opening hours where possible. Citizens’ Advice Bureaux’s are available throughout the country and offer a substantional amount of free legal advice to everyone. This service is very useful for free legal advice as Citizens’ Advice Bureaux’s are placed within many very accessible areas around the country.
If a person is a member of a trade union or motoring organisation they can usually get free legal advice. This service is good, as it will tend to be specialised towards certain areas of law that affects the person, for example if one has a car crash; motoring organisations will offer the best legal advice as it is what they are specialised in.
Some universities run Law Clinics that offer free legal advice. The only problem is the standard of the advice, as it may not be as high as advice given from other sources as students sometimes run them. Other sources of advice include the Internet, which is now more advanced than ever offering many sources of information and advice for anyone. There are many textbooks available, which offer advice, although these, if old, are sometimes inaccurate and so do not offer the best advice. It is however harder to find free representation, and can be expensive.
Free representation within cases is very rare with the ‘free representation unit’ offering representation within tribunals by law students and young barristers. The Bar ‘Pro Bono Unit’ provides free legal representation to people who are unable to afford but not eligible for legal aid, and this work is normally done by QC’s (Queen’s Counsel) and highly experienced barristers and solicitor advocates. Free representation is very rare as the boundaries of the amount of capital and income are set extremely low so very few people qualify.
If a person has substantial wealth, they may be able to pay for legal advice and representation themselves, although the costs can be very high, e.g. Springsteen v Masquerade Music 1998, a great dispute about copyright of a few songs, costs rose to almost £500,000 on the claimants side alone. This shows that cases can reach great amounts of money, and so it is not often seen that people will privately fund their representation out of their own pockets alone.
The Courts and Legal Services Act 1990 has allowed, since 1995, conditional fee agreements that can now be used within all civil cases, excluding some family matters. This ‘no win, no fee’ basis attracts many clients, as they believe that no money is paid up front, and if they are to lose the case, they will pay the solicitor nothing. If a client wins; all of their expenses are actually paid by the other side and so an insurance policy is often advised to be taken out however the premiums and cost of the insurance is often quite high. Solicitors will charge a success fee, which must be no more than 25% of the total winnings plus their normal fee, if they are successful
The Access To Justice Act 1999 introduced the Community Legal Service (CLS). This ensures that the quality and planning of advice given is of a better standard. Before this act there had been in some places no access to advice or any overall planning. It also ensures that between voluntary and private sectors there is a partnership to make sure that all are equally able to obtain Community Legal Service contracts. The Community Legal Service offers legal representation and help within all areas of civil courts. Private solicitors firms, Citizens Advice Bureaux’s and salaried employees of the Community Legal Service, provide all CLS services.
Many have blamed the government of trying to save money before justice, by having a fixed budget, and low boundaries for free legal aid and representation. Criminal legal aid has in the past and will still continue to be demand-led, meaning that civil law will get the remaining allowance when criminal legal aid is paid for, so the amount will vary from year to year, putting a strain on solicitors. Once the budget has run out, the government will not pay out any more funds, so any other cases left over are not even considered for legal aid and will be expected to fund the case themselves.
Cases that may challenge any form of government action may be unable to find their way to court, as many solicitors are unlikely to take on the case for fear of losing their contracts and becoming unpopular with the government and officials.
The system of using contracts has reduced the number of places to get advice and aid for free that the public can go to and many believe that there will continue to be a reduction in access to legal services.
Bibliography
Bell. J, (2006), ‘Police and Policing Law’, Aldershot, UK, Ashgate
Brayne. H, (1987), ‘Detention under the Police and Criminal Evidence Act 1984’, Law Society Gazette 28.
Fenwick. H, (1999), ‘Civil Liberties and Human Rights’, 3rd edn, London, Butterworths.
Loveland. I, (2009), 5th edn, ‘Constitutional Law, Administrative Law and Human Rights’, O.U.P, London.
Mansfield. M, (1993), ‘Presumed Guilty: the British legal system exposed’, London, Heinemann.
Loveland. I, (2009), 5th edn, ‘Constitutional Law, Administrative Law and Human Rights’, p.328
Loveland. I, (2009), 5th edn, ‘Constitutional Law, Administrative Law and Human Rights’, p.326
McKenzie v McKenzie [1971] P 33, [1970] 3 All ER 1034, CA.
![Describe how matters relating to the granting of bail to a person awaiting trial are decided. [18 marks]](https://mbt-essays-prod-public.s3.eu-west-1.amazonaws.com/1207261/listing/1207261_1.jpg)