English Legal System
Criminal Litigation
Remands, adjournments and Bail
Mode of trial proceedings
Committal from the Magistrates’ Court
Aims
•
The aims of this lecture are:
1.
To consider the nature of bail and the procedure and grounds
for granting and refusing bail;
To consider the impact of Human Rights legislation on bail;
To consider the common types of bail conditions which are
imposed;
To revise the classification of offences;
To look at Mode of Trial proceedings and the choice that the
Defendant has as to the place of trial;
To look at the place of Committal proceedings in Criminal
Litigation.
2.
3.
4.
5.
6.
Learning Outcomes
•
By the end of this lecture you should be able to:
1.
Describe the nature of bail and the presumption in favour of
bail;
Critically assess the influence which the Human Rights Act
1998 has had on bail proceedings;
List the conditions which can be imposed in relation to bail;
Differentiate between offences and which court these will be
allocated to;
Describe what happens at Mode of Trial proceedings and the
advantages and disadvantages for the Defendant in opting for
trial by jury in the Crown Court;
Describe the role of Committal Proceedings and when these
will be used.
2.
3.
4.
5.
6.
Different types of Bail
• Bail from the Police Station
• Bail from the courts – there is a general
right to bail in the Magistrates’ courts
The Bail Act 1976
• S.4 – Presumption in Favour of Bail
• ‘A person to whom this section applies
shall be granted bail except as provided
in Schedule 1 to this Act’
• Statutory exceptions
Schedule 1 to the Bail Act
1976
• Paragraph 1 of the Schedule says that it
must be an imprisonable offence
• Paragraph 2 lays out the circumstances
in which bail ‘need not be granted’
The Circumstances in
Paragraph 2
Where the court is satisfied that there are
substantial grounds for believing that
the Defendant if released would:
1) Fail to surrender to custody;
2) Commit an offence while on bail;
3) Interfere with witnesses or otherwise
obstruct the course of justice.
Criminal Justice and Public
Order Act 1994
• Inserted a further circumstance in which
the Defendant need not be granted bail
under s.4
Where the offence with which he is
charged is indictable only or triable
either way and he was already on bail
when the offence was committed
The Prosecution Right to
Appeal
•
Bail (Amendment) Act 1993
•
Where the court grants bail to someone
charged with:
1. An offence punishable with imprisonment of
5 years or more;
2. Certain offences such as TWOC and
aggravated vehicle taking.
The Prosecution Right to
Appeal
• Appeal lies to the Crown Court
• Guidance by the CPS says that the appeal
must be used judiciously and responsibly
• Not just because the prosecutor disagrees
with the Magistrates’ decision
Further circumstances in
Schedule 1
• D should be kept in custody for his own
protection or, if a juvenile, for his own welfare
• D is already serving a custodial sentence
• It is impracticable to assess the factors
relating to the substantial grounds, the
offence with which D is charged, and whether
he should be kept in custody for his own
protection etc…
Remands in Custody
• There is a maximum period for remand in
custody prior to committal proceedings or
summary trial
• In general this is eight clear days
• Circumstances in which D can be remanded
for longer are contained in s.128A of the
Magistrates’ Courts Act 1980
Bail and the Human Rights
Act 1998
• Bail should be granted unless there are
relevant and sufficient reasons why it
should not
• Case law has shown that this is
interpreted in a very similar way to the
Bail Act 1976
The Reasons Summarised
• Risk that D will fail to appear at trial
• Risk that D will interfere with the course of
justice
• To prevent the commission of further offences
• The preservation of public order
The Bail Act and Human
Rights
•
Article 5 allows for the imposition of conditions (of
which more later)
•
The article enshrines the ‘equality of arms’
principle. This includes:
1.
The right to disclosure of prosecution evidence to
make a bail application;
Requirement that the court should give reasons for
the refusal of bail and should permit further
applications at reasonable intervals.
2.
Bail Conditions
2 Commonly imposed Bail Conditions:
• Sureties and securities are the only
conditions mentioned in the Bail Act
• The court may impose other conditions where
it thinks that they are necessary to prevent
the accused from absconding or interfering
with the interests of justice
Examples of Bail Act
Conditions
•
•
•
•
•
•
•
•
•
Surety
Security
Residence
Residence in a bail hostel
Reporting to a specified police station
Curfew orders
Exclusion orders
Surrender of passport
Not to contact the victim or witnesses
Plea before Venue
• Introduced by insertion of ss.17A and B into
the Magistrates’ Court Act by Criminal
Procedure and Investigations Act 1996
• Where D is 18 and the offence is triable either
way
• D asked how he will plead
Plea before Venue
• If D indicates that he intends to plead
guilty, then the Magistrates’ must
proceed as if it were a summary trial
and he had pleaded guilty
• Therefore no Mode of Trial Proceedings
will be held
Procedure at Mode of Trial
•
Charge is read to the D
•
The advocates for the prosecution and defence make representations
as to whether the case should be tried summarily or on indictment
•
The court then decides whether it will accept or decline jurisdiction in
the case. If it declines then the case is adjourned automatically for
committal to the Crown Court
•
If the court accepts jurisdiction the court clerk informs D that he has a
right to trial in the Crown Court
•
A mandatory warning is given at this stage that D may be committed for
sentence
•
D indicates and then the case is adjourned
Mode of Trial
•
S.19 (3) of the Magistrates’ Courts Act 1980
•
The Relevant Factors are:
1.
2.
The nature of the case;
The circumstances and whether they make the case one of
serious character;
Whether the Magistrates’ sentencing powers for that offence
will be adequate;
Any other circumstances.
3.
4.
•
S.19(1) requires the court to take account of any
representations from the defence or prosecution
Burglary and Mode of Trial
Generally burglary should be tried summarily, unless the
Magistrates consider that one or more of the factors listed
below are present and that their sentencing powers are
inadequate:
1.
2.
3.
4.
5.
6.
Daytime entry when the occupier or other person is present;
Night-time entry of a dwelling house whether anyone is
present or not;
One in a string of offences;
Soiling, ransacking, damage to property or vandalism occurs;
The offence looks professional;
The value of property still missing is high.
Where should D choose?
•
Advantages of Summary Trial
1. Less formal;
2. Shorter trial day;
3. Limit on sentence? – see s.3 of the
PCC(S) Act 2000.
Where should D choose?
•
The advantages of trial on indictment
1. Trial by Jury;
2. Separation of functions – admissibility
– professionalism of the judge;
3. Evidence disclosed by prosecution.
Committal Proceedings
These are undertaken by the Magistrates, although
they are called ‘examining justices’ when hearing
them
They are aimed at eliminating those cases which
have no prospect of success in the Crown Court
S.51 of the Crime and Disorder Act 1998 introduced a
provision for indictable only offences to be sent
directly to the Crown Court
2 Types of Committal
• S.6(1) of the Magistrates’ Courts Act –
with consideration of the evidence
• S.6(2) without consideration of the
evidence
• If D requests a s.6(1) hearing, there
must be one
The Test for Committal to
the Crown Court
• R v Galbraith [1981] 1 WLR 1039,
[1981] 2 All ER 1060
• ‘The court must decide whether the
prosecution evidence taken at its
highest discloses a case on which a
properly directed jury could convict’
The Examining Justices’
Discretion to Discharge
• The Magistrates’ have a discretion to
discharge the accused where there has been
a delay in bringing proceedings such as to
render them vexatious and an abuse of the
court’s process
• Usually the defence must show ‘mal fides’ or
bad faith on the prosecution’s part or show
genuine prejudice and unfairness to the
accused
• R v Grays Justices ex p Graham [1982] QB
1239
• 2 Years after the offence
• Held not to prejudice the defendant
• CA held not sufficiently prolonged and
accepted P’s argument that cheque fraud
takes a long time to investigate
Summary of lecture
•
You should now be able to:
1.
Describe the tests laid out for the grant of bail under the Bail
Act 1976;
State what are commonly held conditions imposed on bail;
Describe what happens at Mode of Trial proceedings and why
the Defendant would want to opt for trial by jury in the Crown
Court;
State what is mean by committal proceedings and the transfer
process under s.51;
Describe the circumstances in which the Magistrates’ Court
may decide to discharge the defendant because of abuse of
its process.
2.
3.
4.
5.
Further reading
• Slapper, G. and Kelly, D., The English Legal
System (London: Cavendish Press, 2004, 7th
edition)
• Ingman, T., ‘The English Legal Process’
(Oxford: Oxford University Press, 2004, 10th
edition)