Transcript BAIL - Learn @ Coleg Gwent

BAIL
What is Bail
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Bail is the release from custody, pending a criminal trial, of an accused.
A person can be released on bail at any point after being arrested.
In England and Wales the majority of decisions about granting bail before
trial arise at three points.
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The first two decisions are made by the police and the third by the
Magistrates Court.
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When a suspect has been arrested by the police but the evidence is not
sufficient for charges to be made.
When a suspect has been arrested and charged with an offence.
When the court has decided to adjourn the hearing of a case to another date.
Please note that bail can be granted at the Crown Court, either by way of
appeal against refusal by the magistrates or if a case is sent to the Crown
Court for hearing and an application is made during the course of that case.
All decisions on whether to grant bail (conditionally or unconditionally)
therefore involve delicate questions of balancing interests.
A person is presumed innocent of a criminal charge unless proven guilty
Article 5 ECHR.
This implies that no-one should ever be detained unless he has been found
guilty.
Balancing!
• However, it can be regarded as undesirable to
allow some accused people back to society before
the case against them is tried in a criminal court.
• To refuse bail to an accused might involve
depriving someone of their liberty, who is
subsequently found innocent of an offence.
– Such a person may have been kept in a police cell for
up to 23 hours a day and no compensation would be
available under English Law.
Problems With Bail
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A person on bail may
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Wish to abscond
Commit further offences
Interfere with witnesses
Obstruct the course of Justice.
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The difficulties involved in finding a balance have been highlighted by several cases of
serious assault and rape being committed by persons who were on bail.
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Look at the following recent cases; do you agree with the decision that was made in
relation to bail?
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Julian Assanage (2011)
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Gary Weddell (2008)
Police Bail - s38 P.A.C.E 1984
• During the Criminal Justice Process the first stage at which bail is
raised as an issue is at the police station.
• If a person is arrested on a warrant, this will indicate whether he is to
be held in custody or released on bail.
• If a person is arrested without a warrant, then the police will decide
whether to release the suspect on bail after he has been charged.
• Section 38 of Police and Criminal Evidence Act (PACE) 1984 states
– That a person must be released unless.
• His name and address are not known
• The custody officer feels that his detention is necessary for his own
protection.
• Prevent him from
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Injuring someone
Damage property
Might abscond
Interfere with the Criminal Justice Process.
Police Bail
• Bail is granted in the majority of cases and
can be given to the suspect even if he has
not been charged, on the agreement that he
will return to the police station on a given
date.
• This happened to Chris Jeffries, the first
suspect to be arrested in the 2011 Joanna
Yeates murder case.
Cont..
• If the police feel they cannot grant bail, the
suspect must be put before the magistrates
as soon as possible, in order that they can
make the decision in relation to bail.
• EAH = Early Administrative Hearing.
• A new concept of Street Bail has recently
been introduced under s4 Criminal Justice
Act 2003.
The Criminal Justice and Public Order
Act 1994 (CJPOA)
• Over recent years the government took the view that bail was too
easily granted and too many crimes were being committed by those on
bail.
• Part of the aim of the CJPOA was to restrict the granting of Bail.
• Section 27 of this Act amends s38 PACE 1984 so as to allow the
police to grant conditional bail to a persons charged.
– The conditions can be whatever is required to ensure that the
person
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surrenders to custody
Does not commit an offence
Does not interfere with witnesses
Or otherwise obstruct the course of justice.
Section 25 CJPOA
• This provided that in some circumstances, a person who had been
charged or a previously convicted of an offence of
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Murder
Rape
Manslaughter
Attempted murder
Attempted Rape
• Must not be granted bail.
• This has been seen to be incompatible with the requirements of
Article 5 of the ECHR.
– S25 denied the court the opportunity to take a decision based on the merits of
each individual case.
– In Caballero v UK (2000), the European Court found that s.25 violated rights
under Art.5(3) where the claimant had been denied bail on a rape charge in 1996
because of a conviction for manslaughter in 1987.
– Anticipating this decision s25 was amended by the Crime and Disorder Act 1998
to provided that bail should only be granted in homicide and rape cases if the
“court is satisfied that there are exceptional circumstances which justify it.
Magistrates Court
Bail Act 1976
• If the police decide to grant bail to a defendant once they have
been charged with an offence;
– The defendant will be bailed to appear before the local Magistrates
Court on a set date.
• However, having charged a defendant with an offence, the
police refuse bail;
– The defendant must be brought before a Magistrates’ Court at the first
possible opportunity.
– According to recent Home Office statistics about 5 out of every 6 of
those charged are released on bail.
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If the Magistrates cannot deal with the whole case at the first
hearing, the magistrates must then make the decision as to
whether the defendant should be given bail or remanded in
custody.
• The question as to whether bail should be granted can also be
granted at any later stage of the criminal proceedings.
The Bail Act 1976
• The criteria that governs the grant or refusal of Bail is contained in
this Act.
• There is a statutory presumption of a general right to bail (s.4).
– However, this is subject to schedule 1, which states that bail may not be granted
under certain circumstances.
– Schedule 1 provides that the court need not grant grant bail to a person charged
with an offence punishable with imprisonment if it is satisfied that there are
substantial grounds for believing, that if released on bail, the defendant would:
• Fail to surrender to custody
• Commit offence while on bail,
• Interfere with witnesses or otherwise obstruct the course of justice.
– If the defendant has been charged with an offence which is not punishable
with imprisonment, bail can only be refused if he/she has previously failed
to surrender and there are grounds to believe he/she will not surrender on
the next occasion.
The Bail Act 1976
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Bail can be granted as unconditional or conditional.
Where it is unconditional, the accused must simply surrender to the court at the appointed
date.
– Failure to appear without reasonable cause is an offence under section 6 and can result, if
tried in the Crown Court, in a sentence of up to 12 months or a fine.
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Conditions can be attached to the granting of bail where the court thinks that it is necessary to
ensure that the accused surrenders at the right time and does not interfere with witnesses or
commit further offence.
There is no statutory limit to the conditions and most common are;
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accused reports daily/weekly to a police station.
resides at a particular address or bail hostel
surrenders their passport
does not go to a particular place
associates with particular people.
Surety
Section 7 gives the police powers to arrest anyone on conditional bail whom they reasonably
suspect of breaking those conditions. ‘Bail Bandits’
Anyone arrested under these circumstances must be brought before the Magistrates within 24
hours, who may then reconsider the question of Bail.
Court’s Decision to Grant Bail
• In deciding to grant bail, the court will
consider various factors;
– The nature and seriousness of the offence
– The character, past record, associations and
community ties of the defendant
– What is the defendant’s record in relation to
previous grants of bail
– Strength of the evidence against him.
– How effective do you think bail conditions are
in light of the case Weddell.
Appeals and Re-Applications
• The rules which govern how someone who has been
refused bail might reapply and appeal have also been
framed with a view to balancing the interests of the
accused with those of the public and justice.
• The original refusal should not be absolute and final, but
on the other hand, it is seen as necessary that the refusals
are not reversed too easily.
• If the court decides not to grant bail, then Schedule 1 of
the Bail Act 1976
– provides that it is the courts duty to consider whether the
defendant ought to be granted bail at each subsequent hearing.
Appeals and Re-Applications
• The Interest of the accused are also served by the
variety of appeals he may make if bail has been
refused.
• If bail has been refused by a magistrates then, in
limited circumstances, an application may be
made to another bench of magistrates.
• Appeal can also be made to a Crown Court in
respect of bail where a defendant has been
committed for trial or sentence at Crown Court.
Restrictions on Bail
• The right to liberty is a fundamental human right
– Therefore bail must be available even for serious offences.
• However, in some circumstances the right to bail may be
restricted in order to protect the public;
– Terrorism
• Foreign nationals who are suspected of being involved in terrorist
activity have no right to bail, Anti-Terrorism, Crime and Security
Act 2001;
– Repeat serious offenders
• A person charged with attempted rape, rape, murder or attempted
murder and they have already served a prison sentence for such a
similar offence will only be granted bail in exceptional circumstances.
S25CJPO Act 1994 S56 Crime and Disorder Act 1998 Caballero v
UK 2000.
– Offence Committed whilst on bail
• May not be granted bail for the current and subsequent alleged
offences unless there is no significant risk to the public S14 CJA
2003.
– Restrictions on Bail for adult drug user under Criminal Justice
Act 2003
Advantages of Bail
• It is very important that a balance is
maintained in terms of upholding the
defendants Human Rights and protecting
the public. This is especially important
because at this point the suspect s still
innocent until proven guilty, so should not
be treated as a convicted criminal.
Cont..
• There is a reduction in the number of
defendants on remand, which means less
cost to the government. The Home Office
suggests that up to 20% of those in our
prisons are there awaiting trial and may go
on to be found innocent, or be given noncustodial sentences.
• The defendant can maintain employment
and spend time with family during his bail
period.
Cont.
• The defendant can use the time to prepare
for his trial by not being restricted in terms
of being able to meet with his legal
representatives.
Disadvantages
• There is a risk that the defendant will
interfere with witnesses or otherwise
obstruct the course of justice – in the case of
Shannon Matthews, had the suspects been
granted bail, it would have been an
opportunity for them to further conceal
evidence and impede the investigation.
Cont..
• There seems to be disparity in the
interpretation of the Bail Act 1976 in
different courts.
• Home Office statistics state that 12% of
bailed offenders fail to appear at their trial.
• It is thought a third of burglaries are
committed by people who are on bail for
another offence.