Essay plan Describe the current system for granting or refusing bail



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Essay plan

Describe the current system for granting or refusing bail [18 marks]

Introduction


What is bail? s.4 Bail Act 1976, presumption that released on own recognisance and bail will be granted

Institutions: Magistrates’ Courts and the Police


Section One: When the presumption of bail is refuted.

  • s.25 Criminal Justice and Public Order Act 1994

  • s.56 Crime and Disorder Act 1998

  • s.14 Criminal Justice Act 2003

  • s.19 Criminal Justice Act 2003

  • Anti-Crime Terrorism & Crime Act 1994


Section Two: The powers of the police to grant bail:

  • Through the custody sergeant

  • On bail at any time after arrest (CJA 2003 – street bail)

  • Release while making further enquiries  to return to station at later date

  • On bail to appear at Magistrates’ Court at spec. date (s.38 PACE as amended)

  • Conditional bail


Section Three: The powers of the Police to refuse bail:


Section Four: The powers of the Magistrates’ Court to grant and refuse bail.

  • Factors to take into account in deciding to grant bail (also apply to the police)

    1. nature of seriousness of offence, and probable means of dealing with it.

    2. character, antecedents, associations and community ties

    3. D’s previous behaviour on bail

    4. strength of evidence.

  • Magistrates’ make decision to apply bail, or remand into custody.

  • Can consider bail at any stage in the proceedings and/or impose conditions.


Section Five: Other stuff! (highly technical)

  • Crown Court – can deal with bail at any stage in the proceedings, and hear appeals from D. (only one appeal to Magistrates)

  • D can appeal for bail in Crown Court

  • Prosecution can also appeal to Crown Court over all crimes.

Mention all of this, and an exceptional grade will be yours!



Discuss whether the criteria used by the police or the courts in deciding whether or not to grant bail for a serious offence is satisfactory [9 marks]
Introduction:

  • What is a serious offence (over 5 years e.g. murder, rape, manslaughter)

  • What the main issue with bail is: the right of the defendant to liberty and the presumption of innocence balanced against the public’s right to be protected from offenders

  • What does the criteria cover? Rebuttal of presumption, when refused & granted. Factors taken into account.


Section One: comment on the general right to bail.

  • How do the rebuttals reflect the need for protection? How might you criticize the rebuttals is privileging society over the individual?

  • Discuss the general presumption.

  • Perhaps link these into the concerns under the Human Rights Act 1998, s.5 [right to freedom of the person], and the amendments to s.56 CDA 1998

  • Introduction of ‘street bail’ under the Criminal Justice Act 2003


Section Two: Comment on the reasons for refusing bail.

  • Failure to surrender to custody: 14% of those bailed to appear at court fail to do so (Criminal Justice Statistics 2003)

  • Nearly 25% of defendants commit at least one offence whilst on bail.

  • Concern in 1980/90s over the high re-offending rates lead to reforms in Bail (Amendment) Act 1993. Introduction of P’s right of appeal over bail – reflect the interests of the state and society?

  • Interfere with the course of justice.

  • Terrorism



Section Three: Comment on the factors to be taken into account


  • Serious crime more likely to have a heavier penalty, and so bail should be less likely.

  • The nature of the offence – more likely to be reprehensible

  • Possible discrimination against homeless defendants

  • Able to judge the case before it even gets to court on the strength of the evidence.


Section Four: Comment on whether bail should be granted in exceptional circumstances for murder, manslaughter, rape or attempted the above if D already served custodial sentence.

  • What constitutes exceptional circumstances?

  • More of a most morally reprehensible crimes, and previous behaviour indicates that the public should be protected.

  • Other offences should be included? E.g. Drugs and the presumptions under s.19 CJA 2003


Conclusion:

  • How well do you think that the law on bail balances these rights? Why?

  • Too many people refused bail? 20% of those in prison on remand and 60% of those then convicted get non-custodial sentences

  • Possible argument that it is convicting without evidence as the defendant is still innocent in the eyes of the law, and the decision to refuse bail may influence the jury in reaching their decision in the Crown Court. This could be countered by arguing that the route of appeal is there to help the defendant, and also that bail can be for the protection of the defendant.

  • Which criteria is the most important?

  • Able to take into account the time served in remand in sentencing, so not ‘lost’


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