9.2 Bail
An important pre trial matter is whether to grant bail. A person can be released on bail any point after being arrested.
9.2.1 Police power to grant bail
- May release suspect while further inquiries are made. Must return at given date.
- Police can give bail to defendant charged with offence. In this case he is bailed to appear before magistrates on a certain day.
- Decision is under sec 38 of Pace by custody officer.
- Bail can be refused if: name and address is thought to be false / cannot be discovered.
- Apart from this principles under bail act 1976 must be applied.
- Police can arrest if anyone granted police bail fails to surrender to bail can be arrested.
Conditional Bail
- Under criminal justice and public order act 1994 gave police power to impose conditions on a grant of bail.
E.g. surrender passport, report regularly at station, person stand surety for them.
- Only imposed in order to make:
- Suspect to surrender to bail
- Not commit offence whilst on bail
- Does not interfere with witness or course of justice
No Police Bail
- If once charged police will not grant bail defendant must be brought before magistrates as soon as possible.
- Usually it can’t be dealt with in this first hearing so decision by magistrates on bail must be made.
- Any decision can be changed at any point.
Statistics show that most prosecuted people are summonsed to court rather than charged. Bail is irrelevant as people are automatically at liberty.
9.2.2 The Bail Act 1976
For indictable offences a summons is less common.
A person issued a summons is free until they turn up at court. If they fail to turn up the magistrates/judge may issue a bench warrant to have them arrested even if it is a minor offence.
When arrested by warrant it may be “backed for Bail” by the magistrates. The police are bound to release the accused as soon as they have been charged.
If a warrant was not used or it was but not backed for bail, under the bail act 1976 it nevertheless creates a presumption in favour of bail.
There is a balancing act:
The police may grant bail before first appearance in magistrates court, and the magistrates in turn may grant bail each time the defendant appears before them.
If the magistrates refuse bail, you are entitled to a hearing in front of judge in crown court and the bail amendment act 1993 gives the prosecution the right to appal against a grant of bail by magistrates to a person charged with AO.
Someone arrested and charged for an offence which he would generally not be imprisoned must be given bail unless:
- previously failed to surrender to bail
- he must be kept in custody for his own safety
- he is in custody already, following sentence for another offence
- he has broken the conditions of his current bail
Even if the offence is imprisonable one people are still entitled to bail unless to bail unless court believes:
- He would fail to surrender.
- He would interfere with witnesses or evidence.
- He would commit another offence.
- There has not been time to collect all the evidence to make the proper decision.
However, under section 25 of the criminal justice and public order act 1994 as amended, someone charged with murder, rape, manslaughter or attempted murder or rape, who has previously been convicted and imprisoned or found not guilty through insanity shall automatically be granted bail, unless special circumstances.
- Under section 26 of the CJPOA s person accused of committing a crime whilst on bail is not presumptively entitled to bail. Unless thought appropriate by the court.
In making it’s decision a court may legitimately be influenced by any of the factors listed in schedule 1 of the bail act 1976.
These include:
- Nature of offence.
- Likely result of conviction
- Strength of evidence
- Defendant’s character
- Antecedents
- Community ties
Bail may be granted unconditionally or on such considers that appear necessary to ensure defendant:
- Surrenders to bail
- Commits no further offences
- Does not interfere with witnesses or evidence
- Is available as necessary for the purposes of the court
Such conditions include:
- Surrender passport
- Do not seen certain people or places
- Live at certain address
- Report regularly to police
Defendant can appeal against unfair bail conditions but this is rarely exercised.
80% of cases at the high court are given bail.
90% of those remanded for summarily trial are given bail.
Sureties
- The court and police can require a surety for bail.
- This is a promise by another person to pay money if defendant fails to attend court.
-
The promise is called a recognisance.
- Different to America where money is paid up front.
Renewed Applications and Bai
- Normally only one further application to magistrates, unless change of circumstances.
- An appeal to a refusal of bail can be done. It goes to judge in chambers in QBD of high court.
- If sent to crown court you can apply there for bail.
9.2.3 Amendments to Bail Act 1976
- In 80’s + 90’s worry that dangerous criminals being released on bail and committing further crimes.
- First ked to passing of sec 153 of criminal justice act 1988 which amended bail act so that court is required to give reason if granting bail for murder, manslaughter or rape.
- Crimes whilst on bail still happened.
- Bail (amendment) act 1993 gave prosecution right to appeal against bail provided:
- offence has max sentence of at least five years or offence is taking a conveyance without consent.
- prosecution objected to bail
- prosecution give immediate verbal notice of intention to appeal, followed by written notice to magistrates’ within 2 hrs.
- sec 26 of Criminal Justice and Public Order Act 1994 amended Bail Act 1976 so that presumption in favour of bail is removed if it appears defendant has committed a trialable either way or indictable offence. Court still can grant bail.
- Sec 25 of Criminal Justice and Public Order Act 1994 also barred courts from granting bail in cases of murder, manslaughter, rape (or attempted of above) if they have served a custodial sentence for similar offence before.
- This bar was thought as breach of human rights so in 1998 was abolished
- In 1998 sec 58 of crime and disorder act made it that bail only be given in exceptional circumstances.
2.4 Balancing Conflicting Interests
- Argued too many refused bail.
- 20% in jail are defendants not been tried yet.
- Even though some will be found guilty but no compensation.
- Even 60% guilty will not get custodial sentence.
- Problem is criminal justice system is balancing interests of presumed innocent defendant and public from dangerous criminals.
- Case of Andrew Hagans shows what happens if bail given to readily.
- Survey by Morgan in 1992 showed 16% of burglaries done by those out on remand.
- Changes to Bail (amendment) Act 1993 & CJPOA 1994 are attempts to find medium to above problem.
- Bail hostel is good wat, as those refused bail for having no address can go here, some supervision as well.
- Other schemes such as curfews and electronic tagging are conditions of bail.
3 Crown Prosecution Service
- Before 1986 prosecutions by state where brought by police. Criticized as it was thought investigation and prosecution of crime should be separate.
- Phillips commission set up, (also set up Pace) also pointed out no uniform system of prosecution in England and Wales. Commission said good to have independent agency to review and conduct prosecutions.
- CPS set up by Prosecution of Offences Act 1985.
3.1 Organisation of CPS
- Head of CPS = Director of Public Prosecutions (DPP). Must be qualified lawyer 10 yrs.
- DPP appointed and supervised by Attorney General.
- Below DPP is Chief Crown Prosecutors, who head one of 42 areas.
- Each of 42 divided into sub branches headed by a Branch Crown Prosecutor.
- Each branch has several lawyers and support staff who are organized into teams who deal with cases.
- At beginning big problems due to staff shortages and lack of coordination between CPS and police.
- Mostly o.k. now though still tension about number of cases CPS drop.
3.2 Functions of CPS
- Involves all aspects of prosecution:
- advice on admissibility of evidence to police.
- check cases sent by police to see if in public interest and sufficient evidence.
- responsible for case after receiving it.
- conducting cases in magistrates’
- conducting cases in crown court.
Once charged or summonsed police role ends. Papers sent to CPS and team at local CPS branch deal with case.
3.3 Discontinuance of Cases
- once papers received the CPS review case to see if prosecution be brought.
- They where criticised for dropping too many. In 2000 revised set of rules to follow when deciding.
- Evidential test.
- Strength of evidence
- Jury more likely to convict than not
- Evidence admissible / obtained breaching PACE
- Witnesses dubious backgrounds
- Strength of identification of witness
- Public Interest Test
- Controversial, many wide ranging considerations.
- Code of practice gives list of ‘common public interest factors’ both for and against prosecution.
- 12% of cases discontinued
- some get as far as crown court then stopped
- CPS heavily criticised for dropping especially when a case they dropped for rape of two prostitutes was successfully brought in private prosecution. He got 14yrs.
- Also criticisms that crimes are reduced to get guilty plea regardless if evidence is strong, can make victim feel bad!!
- Changes of 2000 means CPS must notify victims of any change which makes significant differences to case.
Civil Actions
- Sometimes civil cases are brought if CPS drop them or they pick them up.
- Case: 1998 family of doctor Joan Francisco, murdered, took boyfriend to civil court. he was found guilty. The CPS investigated and found a technique not thought of first time and took him to court. he was jailed six years after crime.
3.4 The Glidewell Report
- Because of problems of CPS sir Iain Glidewell asked to conduct enquiry. Pblished 1998.
- Main problem was judge-ordered acquittals which made up 20% of all acquittals. In one in five of these there was something wrong with preparation of case.
- Also found CPS was too bureaucratic and centralized. So divided into 42 not 13.
Criminal Justice Units
- Narey report into delay in criminal justice system suggested CPS locate in police stations to prevent delay in cases being passed during late 90’s pilot schemes found it impractical to have CPS in every station so they were assigned to criminal justice units or administrative support units. Results of pilot showed it prevented delay and better working practices between police and CPS with greater continuance of cases.
7% of cases in pilot area where discontinued, 12% in other areas.
Thought to be as CPS could advise police at early stage of cases.
By march 2001 20 criminal justice units had been established with another 36 planned for 2002.
