Bail

Principle
Guidance
Procedure

Principle

Decisions on bail in Criminal Courts represent an important stage in the prosecution process. The results of these decisions can have far reaching consequences for the victims of crime and the public in general.

From the viewpoint of the defendant, bail decisions made by a Court can result in the deprivation or restriction of liberty for a substantial period of time.

It is vital that Prosecutors recommend the appropriate course of action to a Court in connection with bail and that sufficient comprehensive information is available to a Court in connection with the decision whether or not to grant bail.

These principles and much of the guidance below will apply whether the question of bail is before a Magistrates Court, a Youth Court, a Crown Court or the High Court.

Guidance

Relevant Legislation

Most of the law and practice concerning bail applications is contained in the following:

Bail Act 1976 (The Act);
Bail Act 1976 (The Act);
Bail (Amendment) Act 1993 (The BAA);
Magistrates Court Act 1980;
Magistrates Court Rules 1981;
Supreme Court Act 1981;
Rules of the Supreme Court;
Crown Court Rules 1982 as amended by Crown Court Amendment Rules 1994 and 1998;
Police and Criminal Evidence Act 1984; (PACE)
The Consolidated Criminal Practice Direction amended and reissued 18 May 2004, I.13, III.25, IV.50 and V.53

Statutory charging

Conditional bail

Amendments to section 37 PACE will allow pre-charge bail, with or without conditions, to be imposed where cases are referred to Crown Prosecutors for charging decisions and it is appropriate to release the person on bail. A person may only be released on conditional bail before charge for the purpose of enabling a prosecutor to make a charging decision. Conditional bail before charge is not permitted when a person is bailed pending further investigation under section 34(5) PACE.

Where there are substantial grounds for believing that the exceptions to bail in the Bail Act 1976 are met, Crown Prosecutors will apply a Threshold test to the evidence in such cases for a limited period. Refer to DPPs statement dated 21st May 2004.

Note that police powers to impose conditions are not identical to court powers to impose conditions. Specifically, police may not impose a condition to reside at a bail hostel, to attend an interview with a legal adviser, nor require the suspect to make him or herself available for inquiries and reports.

If Custody Officers are in doubt as to whether conditions attached to bail will be sufficient to avert the risk of absconding etc, they will discuss the question with the Duty Prosecutor to establish whether there is sufficient evidence to charge with a view to seeking a remand in custody.

Conditions imposed by an officer may be varied by the Magistrates Court on application by the suspect (section 47(1E) PACE). The magistrates can confirm the same conditions, impose different conditions, or direct that bail shall be unconditional. It continues to be police bail.

Offence of absconding

While the statutory charging scheme passes the responsibility for determining the charge to prosecutors, the police may nevertheless determine the charge in certain cases, including an offence of absconding contrary to section 6(1) or 6(2) of the Bail Act (para 6(ii) of DPP Charging Guidance 21.5.04).

Breach of conditions:

Revised Practice and Procedure

Breach of conditions of bail is not a Bail Act Offence, nor is it a contempt of court unless there is some additional feature. (Ashley [2004] 1 Cr App R 23)

Pre Charge

The police has a power of arrest where conditions imposed on pre-charge bail have been breached (see section 46A PACE 1984 as inserted by CJPOA 1994 S29(2)). Where a person has been re-arrested, section 37 C (2)(b) PACE gives the police the power to release (again) without charge, either on bail or without bail. Section 37 C (4) states explicitly that if a person is released on bail under section 37 C (2)(b), then that person shall be subject to whatever conditions applied before the re-arrest. It appears that there is no power to change conditions of bail at this point.

Post Charge

Section 7 of the Bail Act 1976 confers power upon the Police to arrest a person if the Constable has reasonable grounds for believing that that person is likely to break any of the conditions of his bail or has reasonable grounds for suspecting that that person has broken any of those conditions.

A person so arrested must be brought as soon as practicable, and in any event within 24 hours of his arrest, before a Justice of the Peace of the Petty Sessions for the area in which he was arrested.

Prosecutors are reminded of R v Culley [2007] EWHC 109 which states that where a person has breached their bail, they must not only be brought before the court as soon as is practicable but also be dealt with within that 24 hours of arrest (see s7 (4) Bail Act 1976).

Prosecutors must be vigilant in this respect and ensure that the court is aware of the 24 hour limit otherwise the defendant will have to be released, if not dealt with within the 24 hour period.

If a Justice of the Peace before whom the defendant is brought is of the opinion that:

the defendant is not likely to surrender to custody; or
that the defendant has broken or is likely to break any condition of bail,

he may remand him in custody or grant bail subject to the same or to different conditions. (Archbold 3 37), (Archbold 3 38).

The effect of Section 7(5) of the Bail Act 1976 was considered in R v Liverpool City Justices ex p DPP (1993) QB 233 which established five propositions:

That the Constable (who has arrested the person bailed bringing him before the Justices) must state his grounds for believing the defendant had broken or is likely to breach a condition of his bail. This may well involve the giving of hearsay evidence.
In the proceedings before the Justices, even where the defendant disputes the ground on which he was arrested, there is no necessity for the giving of evidence on oath or providing an opportunity to the person arrested, or his legal representatives, to cross-examine, or to give evidence himself. Nevertheless, the Justice should give the defendant an opportunity to respond to what the Constable alleges.
The Justices have no power to adjourn the proceedings and must consider, on the material before them, whether they are able to form one of the opinions set out in section 7(5) and if he does so, go on to decide whether or not to remand the defendant in custody or on bail on the same or more stringent conditions.
If the Justices feel unable to form one of the opinions set out in section 7(5) they must order the person concerned to be released on bail on the same terms as were originally imposed.
Proceedings under section 7(5) do not preclude a defendant who is remanded in custody from making an application for bail to the Justices, or to a Crown Court or to a Judge, as appropriate.

The presumption in favour of granting bail under section 4 of the Act will be subject not only to the exceptions of the right to bail in part 1, paragraph 2 of schedule 1 to the Act, but also to the exception in paragraph 6 of the Schedule.

The Divisional Court in the case of R v Havering Magistrates ex parte DPP and R v Wirral Borough Magistrates ex parte Mark McKeown (2001) 2 Cr App R 12 [2001] Crim LR 903 considered these propositions and whether or not there were any breaches under Article 5 and 6 of the European Convention on Human Rights and has held that R v Liverpool City Justices ex parte DPP (1993) QB 233 remains good law.

These authorities were considered in R (Vickers) v West London Magistrates Court [2003] EWHC 1809 (Admin), where it was held that the words reasonable excuse should not be imported into section 7(5), and the breach of conditions was just one factor for the court to take into account when deciding whether to grant bail again.

In practice Prosecutors should not ask courts to deny a defendant bail simply because he or she was arrested in pursuance of section 7 and Courts should not withhold bail simply on that ground alone.

Where the defendant is arrested for a new offence and it is also alleged that he is in breach of one or more bail conditions, the police must give considerations as to whether the breach of bail as well as the new offence should be placed before the court within 24 hours of an arrest for the breach of bail. If this is possible, the suspect should be arrested for breach of bail as well.

Where the nature of the enquiries for the new offence makes it not feasible for the defendant to be produced before the court within 24 hours of an arrest for breach of bail, the police should delay the arrest under section 7 Bail Act 1976 and only make the arrest when the enquiries for the new offence have been completed. The key point to note is that the breach should not be lost amongst the other proceedings. The procedure to follow is that the enquiries should be dealt with and then the person arrested for breach of bail and brought before the court.

Magistrates Courts: The Role of the Prosecutor

In all cases you will consider recommendations made by the Police relating to bail. Where practicable, if you disagree with the Police view on bail, you will consult with the Police regarding the course of action you propose. Further, you should consider whether consultation needs to take place at a more senior level within the CPS and the Police.

Having considered the views of the Police, it is the Prosecutors duty to make a specific recommendation to the Court regarding its decision whether or not to grant bail and, if appropriate, upon which conditions. You should be in a position to present a logical, structured application setting out the arguments supporting whatever course you propose.

Bail applications can occur at any stage of the progress of a case. You should keep the bail position of a defendant under review throughout the life of the case. The Prosecution has a duty to make a recommendation each time bail is considered by the Court.

Assuming the need for a remand you should first consider whether unconditional bail can be granted. Police officers may seek, or a Custody officer may have imposed, conditions which appear to you to be inappropriate or excessive. You should always enquire whether the risk of further offending, or of one of the other events mentioned in Schedule 1 to the Act requires conditions to be imposed at all. (Archbold 3 48; Archbold 3 49; Archbold 3 51)

In the case of an alleged offender appearing before the Courts for the first time, the fact of the proceedings themselves may be sufficient to negate the future risk.

Imprisonable Offences

In the case of imprisonable offences where the Prosecutor is required to have regard to one of the future risks you should assess the relevant considerations set out in Schedule 1 to the Act. (Archbold 3 48)

Important considerations will include:

Any history of offending, absconding or witness interference whilst on bail in the current or in previous proceedings
Any express or implied intention to continue to offend, abscond or interfere and any apparent motive for the risk (for example, to obtain money for the purpose of drug purchases)
The extent to which the defendant has continued to offend whilst subject to other Orders of the Court, such as suspended or deferred sentences and conditional discharge, and to any relevant breach proceedings in respect of other sentences; the presence of one or more of the features may demonstrate an unwillingness or inability to comply with Orders of the Court;
Any previous breaches of bail conditions in earlier or concurrent proceedings or, in the case of absconding, failures to surrender to custody (including failure to appear at a police station when on street bail?);
Any evidence of violence or threats towards, or undue influence over, the victim of the crime or other vulnerable witnesses;
The degree of temptation to abscond;
Any factors which might affect the defendants ability to comply with bail conditions, such as drug or alcohol dependency. Care must be taken, however, with mentally disordered offenders to ensure that the risks of the future events are reduced in a way most compatible with their proper care and treatment (for example by diversion to a recognised medical treatment scheme or by a remand on bail to an appropriate probation or medical facility); and
The effect that the seriousness of the proceedings and the likely penalty of conviction may have upon the defendant; generally speaking, the more serious the offence and the higher the likely penalty, the stronger will be the need to guard against one of the future risks.

Imprisonable Summary Offences

Section 52 and Schedule 12 Criminal Justice and Immigration Act 2008

Amendments to the Bail Act 1976 introduced by Section 52 and Schedule 12 of the Criminal Justice Act 2008 restrict the grounds on which bail may be withheld from a person who is charged only with an imprisonable summary offence (or a relevant low-level criminal damage offence). The restrictions came into force on 14 July 2008 .

The grounds for refusing bail are set out in Schedule 1 to the Bail Act 1976. Before amendment, the schedule distinguished between imprisonable offences (Part I of the Schedule) and non-imprisonable offences (Part II). The grounds on which bail could be withheld in relation to non-imprisonable offences were more limited than those which applied to offences which could attract a sentence of imprisonment. This distinction reflected the view that, in the absence of special justification, a person should not be remanded in custody in connection with an offence for which, ultimately, they could not be imprisoned.

Schedule 12 to the 2008 Act inserted a new Part IA into Schedule 1 which extended the restrictions on withholding bail to summary only offences which are imprisonable. The changes do not apply to either-way or indictable only offences.

Part 1A applies to imprisonable summary-only offences similar restrictions to those that previously applied only to non-imprisonable offences (see Part II of the Bail Act 1976), namely:

The defendant need not be granted bail if-

It appears to the court that, having been previously granted bail in criminal proceedings, he has failed to surrender to custody in accordance with his obligations under the grant of bail; and
The court believes, in view of that failure, that the defendant, if released on bail (whether subject to conditions or not) would fail to surrender to custody;
It appears to the court that the defendant was on bail in criminal proceedings on the date of the offence; and
The court is satisfied that there are substantial grounds for believing that the defendant, if released on bail (whether subject to conditions or not) would commit an offence while on bail;
If the court is satisfied that the defendant should be kept in custody for his own protection or, if he is a child or young person, for his own welfare;
If he is in custody in pursuance of the sentence of a court or of any authority acting under any of the Services Acts;
If having been released on bail in or in connection with the proceedings for the offence, he has been arrested in pursuance of section 7 of the bail Act 1976; and
The court is satisfied that there are substantial grounds for believing that the defendant, if released on bail (whether subject to conditions or not) would fail to surrender to custody, commit an offence on bail or interfere with witnesses or otherwise obstruct the course of justice (whether in relation to himself or any other person).

In effect, the current distinction between summary non-imprisonable offences and summary imprisonable has been removed.

Part 1A also creates three new grounds for refusing bail in summary only imprisonable offences (but not to offences which are not punishable by imprisonment):

if it appears to the court that if released on bail, the defendant would commit an offence resulting in physical or mental injury to any person, or that it will put any person in fear of such injury;
if the court does not have sufficient information to make the remand decision; or
if the exceptions applicable to drug users in certain areas (as set out in Schedule 1 paragraphs 6A to 6C of the Bail Act) apply see below.

Considerations regarding the imposition of conditions on bail have not been affected by these changes. .

Exceptions for drug users in certain areas

Paragraphs 6A to 6C of Part I of Schedule I of the Bail Act 1976 which set out the exceptions to bail for drug users under particular circumstances and in certain geographical areas continue to apply to imprisonable summary only offences.

Criminal Damage offences

Note that Part IA also applies to cases involving criminal damage where the court is clear that the value involved is less than £5000. These offences are treated for the purposes of bail as if they were summary only: see Section 22 of the Magistrates Courts Act 1980..

Defendants aged 17 years are subject to the Bail Act but are not covered by the mode of trial provisions. In order to determine if the bail decision on a 17 year old defendant charged with an offence of criminal damage is brought within the provisions of the new Part IA, the court is required (by a new section 9A of the Bail Act) to consider (for the purposes of bail only) whether the value of any offence of criminal damage is less than £5,000.

Police bail

Bail decisions taken by the police under the Police and Criminal Evidence Act 1994 are not affected by section 52 of the 2008 Act.

Link to Section 52, Schedule 12 Criminal Justice and Immigration Act 2008

Court Conditional Bail

Recommended bail conditions and the reasons for such conditions should be specific and justifiable. The conditions must be likely to be effective and capable of being enforced.

Some bail conditions, for example a condition to report to a Police Station at designated intervals, might be superficially appealing but be of little or no effect in averting the risk contemplated. For example, the interval between reporting times may be insufficient to prevent a defendant absconding. In such cases the conditions ought not to be recommended.

It was held in R (CPS) v Chorley Justices [2002] EWHC 2162 Admin that a doorstep condition is not contrary to the ECHR. Where it is proportionate, and necessary to enforce a curfew or a residence condition imposed for one of the statutory purposes then such a condition may be appropriate.

In prosecutions for murder, you should remind any Court granting bail that it must impose conditions in accordance with Section 3(6A) of the Act (Archbold 3 10) so as to ensure the medical examination of the defendant. The Court need not impose the conditions if it is content that satisfactory reports have already been obtained.

In appropriate circumstances you may also wish to remind the Justices that it may be in a defendants own interests to be committed in custody to enable a report to be prepared by a prison doctor. (R v Vernege (1982 1 All ER 403(n)).

Whatever recommendation you make on the subject of bail you will bring all relevant matters to the attention of the Court whose responsibility it is to decide whether or not bail should be granted.

Electronic tagging for Adults

The Criminal Justice and Immigration Act 2008

Sections 21, 22, 23, 51 and Schedules 6 and 11 (in force 3 November 2008).

The Criminal Justice and Immigration Act 2008 (the 2008 Act) has made the following changes to the law concerning electronic monitoring (tagging):

Sections 21 to 23 provide that a defendant who has been subject to electronic monitoring (EM) as a condition of bail for an offence for which he receives a custodial sentence may receive a credit period which counts as time served by him as part of the sentence;
Section 51 and Schedule 11 amend the Bail Act 1976 to recognize electronic monitoring (EM) as a condition that can be imposed when granting bail to adults.;

Sections 21 to 23 and Schedule 6: Credit for period of remand on bail

Sections 21 and 22 insert a new section 240A into the Criminal Justice Act 2003. It provides that a court must direct that the period for which a defendant was subject to a curfew condition and an electronic monitoring condition, to count as time served by the offender as part of the sentence.

This means that the court must first determine whether there has been a qualifying period of EM or tagged bail. Once this has been decided, the credit towards the custodial sentence will apply unless one or more of the conditions in subsection (4) applies (see below).

This provision applies only where:

a court sentences an offender to imprisonment for a term in respect of an offence committed on or after 4th April 2005;
the defendant was remanded on bail by a court in course of or in connection with proceedings for the offence, or any related offence, after the coming into force of section 21 on 3 November 2008; and
the offenders bail was subject to a qualifying curfew condition and an electronic monitoring condition.

The credit period is the number of days represented by half of the sum of the number of days on which the offender is subject to an electronically monitored curfew of at least nine hours per day. The day on which the conditions are imposed is counted but the last day is excluded because it counts as the first day of the sentence.

Note: No credit period is available for monitored curfews which are less than 9 hours.

Subsection (4) (a) of section 240A provides that the Secretary of State may make rules to dis-apply the credit provision. The current rules namely the Remand on Bail (Disapplication of Credit Period) Rules 2008 provide that credit is not to be given for:

sentences of imprisonment for consecutive terms;
sentences of imprisonment for terms which are wholly or partly concurrent;
periods during which a person granted bail subject to the relevant conditions is also subject to electronic monitoring required by an order made by a court or the Secretary of State (e.g. a curfew order).

Subsection (4) (a) states that the court may decline to make a credit direction it is in the opinion of the court just in all the circumstances not to give a direction under that subsection. This will enable the court to, inter alia, not to give credit to all or part of the credit period when the defendant was in breach of bail. Under subsection (5), a court may nonetheless direct that a period of days which is less than the credit period is to count as time served by the offender as part of the sentence.

The court must state in open court:

the number of days on which the offender was subject to the relevant conditions, and
the number of days in relation to which the direction is given.

Where the court does not give a direction that credit is given or directs that reduced credit is given, it must state in open court:

that its decision is in accordance with rules made under subsection (4)(a) or
that it is of the opinion mentioned in paragraph (b) of that subsection and what the circumstances are.

Calculating the credit period

The court which first imposes the electronically monitored curfew will commence a paper record which documents the conditions imposed and the date on which they are imposed. The document will also carry information about breach of bail and information to do with the dis-application provisions. This form will travel with the defendants court file so that it is made available to the sentencing court.

Transitional provisions

The credit provisions and hence the credit period commences when bail is granted after section 21 comes into force. The credit period for a defendant granted bail with conditions of monitored curfew before the commencement date will therefore start when he is re-bailed with these conditions on or after the commencement date.

Offences committed before 4 April 20005

Section 23 and Schedule 6 contain parallel provisions in respect of offences committed before 4 April 2005.

Section 51 and Schedule 11

EM has been in use as a condition of bail for some time. The legal basis for EM for children and young persons is provided by section 3AA of the Bail Act 1976. For adult offenders, the legal basis is the courts general powers to grant bail subject to a condition pursuant to section 3(6) of the Bail Act.

A new Section 3AB of the Bail Act 1976 sets out the conditions that must be satisfied before the Courts can impose electronic monitoring on adults and those aged 17. One of these is that the Court must be satisfied that without the electronic monitoring the defendant would not be granted bail. This is intended to ensure that tagging is only used where necessary and to support the proper use of public funds.

It should be noted that section 51 and Schedule 11 bring the legal basis for monitoring adults in line with that for young offenders. Prior to this EM for adults had been imposed without the need for legislative change. Please note that the amendments do not amount to a concession that the court had no power to impose EM on adult offenders until section 51 comes into force on 3 November 2008.

For information on electronic tagging for youths please refer to Youth Offender: Remands with Security Requirements/Remand Centres elsewhere in this chapter.

A Remand in Custody

A remand in custody should only be sought where it is needed, ie where there are substantial grounds for believing that one of the future risks will occur and either:-

There are justifiable grounds for believing that the defendant will not comply with bail conditions;
Or the defendant has demonstrated that he or she cannot or will not comply with them;
Or there are justifiable grounds for believing that the defendant will commit one or more of the future risks regardless of the conditions imposed.

Where a Prosecutor has decided to recommend a remand in custody to a Magistrates Court in a case to which the BAA applies, he or she must then go on to consider whether an appeal would be appropriate in the event that the Court decides to grant bail. The recommendation must be clearly endorsed on the file.

Note the effect of Section 25 Criminal Justice and Public Order Act 1994 (Archbold 3 55) for defendants charged with murder, attempted murder, manslaughter, rape, attempted rape, or other sexual offences as detailed in section 25(2) as amended by paragraph 32 of Schedule 6 to the Sexual Offences Act 2003. (Archbold 2004 Supplement 20590)

When opposing bail in a case where Section 25 applies the Courts discretion should not be fettered by representations from the prosecution that confer an unduly restrictive interpretation of exceptional circumstances under Section 25, which imposes an obligation to withhold bail. The Law Commission Report on Bail and the Human Rights Act.

The requirement for a court to be satisfied that exceptional circumstances exist before granting bail where section 25 applies does not of itself violate Article 5 of the ECHR. (R (O) v Harrow Crown Court [2003] EWHC 868 (Admin)) (Archbold 355)

Bail Information Scheme

Frequently for those most at risk of a remand in custody a place might be available in a probation or other approved bail hostel. Detailed information might also be provided under a recognised Bail Information Scheme. Residence in an approved hostel and compliance with its rules will often assist to reduce the future risks.

You should still take care to ensure that the proposed hostel and its regime are an adequate safeguard to the risk posed by the defendant in each case. If, considering all the circumstances, it is felt that the future risk is not significantly reduced by residence at the hostel, then it may still be appropriate to recommend a remand in custody.

Provision of New Bail Accommodation and Support Service for Defendants

Bail Accommodation and Support Service

ClearSprings (contractors) are providing a new Bail Accommodation and Support Service from 18 June 2007. It allows courts and prison governors to make greater use of bail and early release in appropriate cases where potential users do not have an address. While it is available nationally, ClearSprings currently has more addresses available in London, West Midlands, Yorkshire and Humberside.

Prosecutors are requested to note the service is there to accommodate the following:

Remanded in Custody: prisoners who have already been remanded in custody but who the courts may decide to bail if provided with suitable accommodation and/or support.
Home Detention Curfew: prisoners serving custodial sentences of 3 months to less than 4 years and who are eligible for release on Home Detention Curfew and who prison governors may agree to release if provided with suitable accommodation and/or support.
Defendants in Court: those appearing in court whom the courts would remand in custody unless they are provided with suitable accommodation and/or support.

Note: If the defendant falls into one of the above categories, then he or she can only be considered for the Bail Accommodation Support Service where he/she

has no other reasonable address option available which would be acceptable to the Court or the Prison Governor;
is likely to have an eligibility to receive housing benefit, or can pay for the rent.

Although the CPS supports this initiative, Prosecutors should scrutinise bail applications carefully. The court should be informed if the accommodation offered does not address the concerns of the prosecution, for example if the address offered is close to the victim.

Prosecutors should also consider whether the court should impose a condition of electronic monitoring to help ensure that the defendant remains at the given address at appropriate times.

It is suggested that prosecutors add the following to the standard conditions:

to abide by the conditions of residence as stipulated by ClearSprings; and
to attend contact/support sessions as stipulated by ClearSprings.

How will the service work

A potential service user will be identified by the court or through the Bail Information Scheme and a request will be made to ClearSprings for support or accommodation with support in locations nominated by Regional Offender Managers across England and the Director of Offender management in Wales.

ClearSprings will designate an address and/or suggest to the court an appropriate support plan within two working days. This will form a proposal to be submitted to the Bail Information Officer. This, together with risk and needs analysis is the information upon which a court will make a decision to release the service user into the scheme.

Upon approval of the court, a service order will be activated. Service users will be allocated a ClearSprings property and/or a Support Officer to ensure compliance with bail conditions. The service user will remain with the scheme for the period of their bail, and up to seven days afterwards if necessary, unless sentenced to custody or re-remanded.

ClearSprings have a number of responsibilities which are to:

consult with police at local level about the location of premises to be used as bail accommodation;
ensure that neighbours know that ClearSprings are managing the properties and have the appropriate contact details in case of any concerns or problems;
monitor the behaviour of service users and give formal warnings as necessary;
remind defendants to attend court and other appointments;
initiate formal breach action through the police in accordance with agreed standards should the service user:
- fail to arrive at the address;
- abscond from the address;
- fail to attend contact sessions;
- fail to engage with the support at those sessions;
- breach a curfew or other bail condition; or
- behave in such a way that the contractor decides to terminate the service provision.

Exception to the Right of Bail: Defendant on Bail at time of alleged offence

Different considerations apply to applications for remands in custody based upon paragraphs 2A to 6 of Schedule 1 to the Act. (Archbold 3 48). Paragraph 2A provides that a defendant need not be granted bail if the offence for which the defendant is before the Court is an indictable offence or an offence triable either way and it appears to the Court that the defendant was on bail in criminal proceedings on the date of the offence.

The Law Commission Report on Bail and the Human Rights Act 1998 (number 269) concluded that the facts specified in paragraph 2A cannot in themselves constitute a ground for detention under the Convention, they can only be a relevant factor in weighing the risk of the defendant committing an offence whilst on bail. The Law Commission has recommended that the Bail Act be amended to make this plain. Good practice has always meant that reliance should not be placed directly on paragraph 2A when opposing bail. Prosecutors should not open an objection to bail by saying that the defendant has lost his or her right to bail simply by virtue of paragraph 2A being made out. Instead, Prosecutors should rely on the paragraph 2A considerations by reference to another ground, which makes the risk a real one, for example by relying upon paragraph 2(b) based on the defendants antecedent history. <See also - The Law Commission Report on Bail and the Human Rights Act>.

Prosecutors should note that section 14 of the Criminal Justice Act 2003 has yet to come into force. When it does, paragraph 2A will be substituted to provide that a defendant who is 18 or more and was on bail at the time of the alleged offence may not be granted bail unless the court is satisfied that there is no significant risk of his committing an offence while on bail (whether subject to conditions or not). At the same time, by virtue of a new paragraph 9AA in Part I of Schedule 1, the court will be required when reaching its decision to give particular weight to the fact that the defendant was on bail at the time.

Non-Imprisonable Offences

The exceptions which apply to applications for remands in custody for non-imprisonable offences (see Part II of Schedule 1) are not the same as those which apply in relation to imprisonable offences (Archbold 3 51).

In the case of absconding, paragraph 2 of Part II of Schedule 1 provides that the defendant need not be granted bail if he was previously on bail and failed to surrender to custody and the court believes, in view of that failure, that he would fail to surrender.

Where the defendant has been arrested under section 7 of the Bail Act 1976 and the court is satisfied that there are substantial grounds for believing that he would fail to surrender, commit further offences, interfere with witnesses or obstruct the course of justice, it need not grant bail: paragraph 5 of Part II of Schedule 1.

Lack of Information

You should bear in mind the power of the Court under paragraph 5 of Schedule 1 to the Act to grant a short custodial remand if there is not enough time to obtain sufficient information for the Court to make its decision. This would not amount to a decision not to grant the defendant bail within the meaning of Part IIA of Schedule 1: (R v Calder Justices ex parte Kennedy (1992) Crim LR 496).

The Law Commission Report on Bail and the Human Rights Act 1998 concluded that refusal of bail by a Court because of lack of information under paragraph 5 of Part 1 of Schedule 1 of the Act can be compatible with Article 5 of the Convention provided that detention is for a short period, which is no longer than necessary to enable the required information to be obtained, and the lack of information is not due to a failure of the Prosecution, the Police, the Court or another state body to act with special diligence.

When an application is made under paragraph 5, Prosecutors should ensure, where they can, that missing information is obtained as quickly as possible. This should be done through oral and written communication with the Police or other body from whom the information is awaited. If the information is received before the adjourned hearing date, the Prosecution should contact the Court and the Defence Solicitors to advise that a full bail hearing can now take place, so that the adjourned hearing can be brought forward.

The Application in Court

Prosecutors are responsible for opposing bail in Court. It is not necessary to call evidence in support of a custody application since the strict rules of evidence do not apply. Previous convictions should be handed in to the Court, but not read out. (R v Dyson (1943) 29 Cr App R 104)

In most instances you should not find it necessary to call a Police officer in support of the application. You may find yourself under pressure from the Court or the Defence to call a witness in support of your application. The decision to call a witness is entirely a matter for your discretion. You should consider carefully what additional information may be gained from calling the officer in the case and whether it is genuinely relevant to the application.

Under no circumstances should an officer called to give evidence in connection with a bail application be forced to say things in the witness box which may prejudice the course of the investigation.

It is possible to use non-forensic evidence, i.e. the results of an in station test kit, for the purpose of making representations as to remands in custody or conditional bail.

Technical Bail

You may encounter a situation where a defendant is remanded in custody by more than one Court and it is suggested that the burdens of weekly remand may be eased by his or her remanding in custody to one Court and being given technical bail by the other(s).

Before acceding to technical bail, you should just explore the possibility of consolidating all matters in one Court.

If the Court is minded to grant technical bail, it is essential that the CPS Branch responsible for the case in respect of which the defendant is remanded in custody is consulted. This will be vital if, for any reason, it is proposed to discontinue the proceedings in respect of which the defendant is remanded in custody.

Variation of conditions/imposition of conditions

Police bail

Where a custody officer grants conditional police bail under Part IV of PACE, or varies conditions of bail, the person may apply to the Magistrates Court for bail or for variation of the conditions. The court has power to grant or withhold bail, with or without conditions, including conditions which are more onerous than those imposed by the custody officer (s 43B MCA 1980). Rule 84A of the Magistrates Courts Rules 1981 applies to the application made by the person.

Where a defendant applies to the Magistrates Court to vary conditions of bail imposed by the Police, the Court will fix a hearing date and notify the CPS. (Courts must hear the application within 72 hours of its receipt not counting Christmas Day, Good Friday, Bank Holidays or Sundays.)

If the CPS has already received a file from the Police you should ask the Police to give their view of the application.

If the CPS has not already received a file, you should request a file from the Police. The Police will supply either the appropriate Manual of Guidance file (if it can be made ready in time) or a Custody Remand file.

Court bail

Where a court has granted bail, you may apply to the Magistrates Court (or, where a person has been committed to the Crown Court for trial or sentence, to the committing Court or to the Crown Court):

for conditions of bail to be varied or
for conditions to be imposed where unconditional bail was granted (section 3(8)(b)).

The accused may apply also (section 3(8)(a)).

Rules 19 and 20 Crown Court Rules 1982 apply. (Archbold 3-181 to 3-184)

Defence right of appeal against imposition of conditions by magistrates

An accused may appeal to the Crown Court against the imposition of certain bail conditions by magistrates (section 16 Criminal Justice Act 2003). Those conditions are: a residence requirement (other than a requirement to reside at a bail hostel or ClearSprings accommodation); provision of a surety or giving a security; curfew; electronic monitoring or a non-contact requirement. Before the accused can exercise this right, the Magistrates Court must have had an opportunity to reconsider the conditions. This could have been where the accused applied for conditions to be varied (under section 3(8)(a)), or because the prosecutor or police applied for conditions to be varied (under section 3(8)(b)), or because the prosecutor applied for reconsideration of the bail decision under section 5B(1).

Rules 19 and 20 Crown Court Rules 1982 apply. (Archbold 3-181 to 3-184)

Prosecution Application to Reconsider Bail: Section 5B Bail Act 1976

The Prosecution may apply under Section 5B of the Act to have bail reconsidered by the Magistrates Court. This only applies to bail granted by the Magistrates Court or a constable and only in relation to offences triable on indictment or either way. (Archbold 3 26).

The Prosecution may apply to:

Vary the conditions of bail;
Impose conditions in respect of bail which has been granted unconditionally, or
Withhold bail.

You may only apply on the basis of information which was not available to the Court or Constable when the original decision was taken. It is unclear whether information which a Constable (in practice, a custody officer) should have known or could reasonably be expected to have known will be treated by the Courts as not having been available. In the absence of case law, you should treat such information as not having been available to the Constable.

If the information is withheld from the Court (for example by the Police or the CPS), then it was not available to the Court, unless someone else tells the Court. A Section 5B application could be made in these circumstances although the Court will want to consider whether it is fair to take account of information which could or should have been given when the original decision was taken.

You should not withhold information from the Court with a view to using it to support a Section 5B application later.

The new information need not relate directly to the offence but may relate to matters such as the defendants criminal record, or his or her address in relation to the complainants address.

It is not necessary to use Section 5B to ask the Magistrates Court to reconsider bail when the defendant is already present at Court in answer to bail. In other words, Section 5B is not the only provision available to the Court to allow it to reconsider bail. The Court still has a duty to consider bail every time the defendant appears before it.

Where the CPS has already received a file from the Police, the Police will supply information on the relevant Manual of Guidance form and suggestion that a Section 5B application be made. Where the CPS has not yet received a file from the Police (for example where the defendant has only recently been charged and bailed), the Police will submit either a custody remand file or the appropriate Manual of Guidance plea file, together with information supporting a proposed Section 5B application.

Where the CPS receives information from a source other than the Police which may justify a Section 5B application, you should provide details to the Police and request the Police view. Where the CPS has not yet received a file from the Police, you should request a custody remand file. The Manual of Guidance gives details of the forms and procedures to be used.

You should consider the following when deciding whether to use Section 5B:

The length of time since the original decision and the bail history since that decision;
The length of time before the defendant would next appear in Court if no applications were made;
Whether the original decision would have been different if the new information had been available then (or if the new circumstances had obtained them);
Whether, even if the original decision would have been different, a different decision is likely to be taken now.

If you decide to proceed with a Section 5B application, you must apply in accordance with Rule 93B of the Magistrates Courts Rules. (Archbold 3 166a)

You must make the application to the Magistrates Court which granted bail or in the case of bail granted by a Constable, the appropriate Court. The appropriate Court is the one appointed by the Custody Officer as the Court before which the person granted bail has a duty to appear, or, if no such Court has been appointed, the Court acting for the petty sessions area in which the Police Station at which bail was granted is situated.

The application must:

be in writing;
contain a statement of the grounds on which it is made;
specify the offence in respect of which bail was granted;
specify the decision to be reconsidered, including any bail conditions and the reasons for them having been imposed;
specify the name and address of any surety.

You must send the application to the Clerk of the Court. A hearing date will be fixed by the Clerk which must be not later than 72 hours after receipt by the Clerk of the application (not counting Christmas Day, Good Friday, Bank Holidays and Sundays).

Responsibility for service of notice on the defendant lies with the Court.

The application may proceed in the absence of the defendant provided that it is proved (on oath or by certificate of service) that the defendant has been served with notice.

Sureties

You should always assess the quality of persons who are presented to the Court as sureties, seeking assistance from the Police wherever necessary. Where appropriate, the previous convictions of a proposed surety should be brought to the attention of a Court. Particular care should be taken to ensure that the potential sureties are genuinely able to afford in their own right the sums for which they are making themselves liable. If the Court and the Defence do not fully explore the status and means of the potential surety, the Prosecutor should do this in the interests both of justice and the surety.

Where the Court is considering whether a surety should forfeit all or part of his or her recognisance you should be prepared to assist the Court with the history of the matter and, if necessary, the relevant law.

Where a Magistrates Court imposes a requirement for a security, when the defendant surrenders to the Crown Court, for arraignment or otherwise, the Crown Court must consider the suitability of bail conditions afresh, including the desirability of a surety. (Archbold 330) (R v Maidstone Crown Court ex parte Jodka (1997) 161 JP 638).

If a defendant on bail has not surrendered to the custody of the Court but has been formally arraigned, the surety will not be liable to forfeit any part of his or her recognisance if the defendant subsequently absconds. The arraignment will constitute his or her surrender to custody and cause the defendants bail to lapse: (R v Central Criminal Court ex p Guney [1996] AC 616).

Security

Where there is a risk that a defendant may leave the jurisdiction you should draw the Courts attention to its powers to require a security from the defendant under Section 3(5) of the Act (Archbold 3 9).

Securities should always be held by the Court unless, in exceptional circumstances, the Court wishes them to be held by the Police.

It is unacceptable for the CPS and its officers to be placed in a position of holding the defendants funds on trust.

Section 19 Criminal Justice Act 2003 Drug Users: Restriction on Bail

Section 19 Criminal Justice Act 2003 imposes a restriction on bail if a defendant has tested positive for class A drug on charge and has agreed to undergo a relevant assessment at the first bail hearing. If the person agrees, then they may be granted conditional bail with a condition to undergo the relevant assessment and any prescribed follow up. If not, the presumption for bail is removed and the court need not grant bail unless the court is certain that the person will not re-offend when on bail.

Section 19 applies when a defendant:

is aged 18 or over; and
has tested positive for a specified class A drug (namely heroin, cocaine or crack cocaine) either:
i) under Section 63(B) of PACE 1984 (drug testing after charge) in connection with the offence; or
ii) under section 161 of the Criminal Justice Act 2003 (drug testing after conviction of an offence but before sentence); and
resides in a relevant Petty Sessions Area where the provision applies. (If the person is of no fixed abode, then it is open to the court to deal with that person as if he is a resident of the area in which he was arrested); and
where the defendant has been charged with an offence under sections 5 (2) or 5 (3) of the Misuse of Drugs Act 1971 (possession/possession with intent to supply) relating to a specified class A drug; or

where the defendant has been charged with an offence which the court is satisfied was caused, wholly or partly, by the defendants misuse of a specified class A drug or was motivated, wholly or partly, by his intended use of a specified class A drug.

If a defendant falls within the criteria above and:

has either been offered an assessment, to which he agrees; or
following an assessment has had relevant follow-up proposed to him, and he agrees to participate in the relevant follow-up;

the court, if it grants bail, has a duty to impose as a condition of bail that the individual undergo the assessment and/or participate in any relevant follow-up.

If the defendant either:

refuses to undergo an assessment of their dependency on or propensity to misuse class A drugs; or
having undergone such an assessment, and having had follow-up action proposed to address their dependency/propensity, refuses to undergo such follow-up,

the court may not grant bail unless it is satisfied that there is no significant risk of his committing an offence whilst on bail (whether subject to conditions or not).

Where an offer of assessment has previously been made to the defendant which was refused, it is open to the defendant to reconsider his refusal at the time of the bail hearing and accept the offer of assessment made. It will also be open to the court to ask the defendant at the time of the bail hearing whether he wishes to reconsider his refusal to undertake an assessment, and to inform him of the possible consequences of such a refusal.

In any individual case, the courts decision on bail will be based on the likelihood of a significant risk of re-offending if the court considers there is no significant risk, the conditions will not be applied. Similarly, if the defendant is considered a bail risk for reasons other than offending whilst on bail, then the section will not apply.

It is important to note that the effect of section 18 is that a court must refuse bail if the defendant is unwilling to undergo an assessment and any relevant follow-up to address their drug misuse unless it is satisfied that there is no significant risk of re-offending by the defendant whilst on bail.

For the provision to apply, there must be evidence of a positive drug test for a specified class A drug, and substantial grounds for believing that the misuse of a class A drug caused or contributed to the offence, or that the offence was motivated wholly or partly by the intended use of a class A drug.

The combined evidence of a positive test and trigger offence amounts to substantial grounds for believing that the offence was motivated wholly or partly by the intended use of a class A drug. Prosecutors must ensure that the issue is raised and advocate the application of section 18, and place before the court all relevant information.

If a defendant test positive but disputes the result, a sample will be sent for confirmatory testing. This will usually take 72 hours, therefore, a court might not have the confirmed result when the defendant first appears. In such cases, the court should be informed of the disputed result and it must then decide whether to proceed on the basis of the disputed result, or adjourn until the confirmatory test has taken place.

For further guidance on the Drug Interventions Programme, including testing on arrest, please refer to Guide for Prosecutors to the Drug Interventions Programme 2006.

Magistrates Courts: Post Conviction Application

Under section 4(2) there is no general right to bail for convicted persons.

However where a person has been convicted and is then brought before either the magistrates or crown court to be dealt with for breach of requirements of a community order or breach of a certain youth community orders (section 4(3); or a court adjourns a case for inquiries or a report (such as a pre-sentence report) to be made in order to assist the court in dealing with the offence (section 4(4)), the right to bail remains. Accordingly, you should make appropriate representations (including any objections) as to the grant of bail.

By inference the presumption to bail does not apply to those defendants who appear before a court post-conviction where proceedings are adjourned for any other reason for example committal for sentence.

In this situation, prosecutors are reminded of their duty to assist the court in providing information that may be relevant to their decision. For example, relevant case decisions that highlight the fact that it is difficult for magistrates to justify granting bail to a defendant in these circumstances.

For example:

On committal to the crown court for sentence: R v Coe (1968) 53 Cr App R 66
Pending appeal against sentence to the Court of Appeal: R v Watton 68 App R 293

Committal for Trial

You should be aware that although the fact of a committal taking place does not give a defendant an automatic right to a further bail application, there may be factors disclosed on the face of the papers which might provide fresh material.

When reviewing the full committal file you should consider whether there is any relevant information to place before the Court that may amount to a change in circumstances. If so, the file should be endorsed with the appropriate instructions and recommendations.

Where a Magistrates Court commits a person for trial on bail, the bail ceases (whatever form of words is used in the Magistrates order) when the defendant surrenders to the Crown Court, whether for the purposes of arraignment or otherwise. If the Crown Court releases the defendant on bail thereafter, it must consider the suitability of any conditions afresh, including the position of a surety

Absconding

There is a clear distinction between a failure to appear at Court in answer to Police bail and a failure to answer bail imposed by a Court.

Where a person fails to answer Police bail, proceedings must be commenced within six months of the alleged failure to answer bail, or within three months of the person surrendering to custody or being arrested or brought before a court for the Bail Act offence or the offence for which he was granted bail. It is important to ensure that local Police stations have satisfactory arrangements for the laying of an information within the six month time limit. The decision to continue any charge preferred by the Police under Section 6 of the Act should be made by the Prosecutor.

Where the defendant has failed to answer Court bail, the decision as to whether proceedings should be brought is for the Court. There is no limit for pursuing the matter. (Archbold 3 27) (Archbold 3 31).

Where a decision has been made to pursue a charge of failure to surrender to bail, you will have to consider whether in all circumstances it is appropriate to recommend to the Court a remand in custody or bail with stringent conditions. In addition to considering the nature of the alleged offences and any other information concerning the defendant, if the failure to surrender relates to Court bail, you should ensure that you have all the relevant information regarding the failure to answer bail.

Where the defendant is arrested on warrant and brought before a Court other than the one which originally granted him or her bail, the Prosecutor handling the case in the second Court must not allow the defendant to be dealt with unless either he or she has the prosecution file for the original offence or has spoken to a Prosecutor from the original office who is in possession of all the information which the second Court may require in considering the question of bail or custody.

The same guidance applies where the defendant is arrested for breaching bail conditions or lack of sureties and appears before a Court other than the one which originally granted him or her bail.

Youths and Youth Courts

Youth Court

The Bail Act 1976 also applies to youth offenders. There is a presumption that the defendant has a right to bail. You need to apply the same degree of sensitivity in considering what representations to make to the Court in respect of bail as would be applied in the exercise of discretion as to whether to pursue offences against youth offenders.

The Bail (Amendment) Act 1993 also applies to youth offenders charged with, or convicted of, offences punishable (in case of an adult) with five years or more imprisonment or offences under Section 12 and 12(a) Theft Act 1968 and in respect of whom the Prosecutor has made representations that he or she should be remanded under the provisions of Section 23 Children and Young Persons Act 1969 as amended. (Archbold 3 86; Archbold 3 87; Archbold 3 69).

The right of appeal applies to bail granted following a Prosecutors representations for a remand to care of the local authority and to the temporary provisions for a remand to a Remand Centre or Prison.

You should be particularly careful in exercising the power of appeal in respect of youth offenders. The decision should be taken or confirmed by a Youth Offender Specialist and the Area Youth co-ordinator should be notified of the power and the result of appeal.

Youth Offender: Remands

The question of remands will only arise where an adjournment is sought and therefore the first point to consider is whether or not the adjournment is necessary. You should remember the necessity of dealing with youth offenders in an expeditious manner.

If an adjournment is necessary, you should then go on to consider what recommendations you will make to the Court regarding bail.

Youth Offender : Bail

The court may impose conditions that appear to be necessary for the same reasons as adults save that the court may also impose a condition for his own welfare or in his own interests (sec 3 (6) (ca) Bail Act 1976).

Youths aged 10 and 11 may be remanded on unconditional bail, conditional bail, bail supervision and support or bail Intensive Supervision and Surveillance Programme (ISSP). Where a court remands on bail a 10 or 11 year old who is either charged with or has been convicted of a serious offence or ,in the opinion of the court , is a persistent offender on bail the court may order a local authority to make an oral or written report specifying where the child is likely to be placed or maintained if he is remanded into local authority accommodation (sec 23B Children and Young Persons Act 1969).

Youths aged 12 to 17 may be remanded on unconditional bail, conditional bail, conditional bail with electronic monitoring, bail supervision and support, bail supervision and support with electronic monitoring, bail Intensive Support and Surveillance Programme (ISSP), Bail Intensive Support and Surveillance programme with voice verification and/or with electronic monitoring.

An electronic monitoring requirement may only be imposed on a youth aged 12 to 16 inclusive if the following conditions are satisfied:

The child or young person has been charged with or convicted of a violent or sexual offence, or an offence punishable in the case of an adult with imprisonment for a term of 14 years or more; or
has been charged with or has been convicted of one or more imprisonable offences which, together with any other imprisonable offences of which he has been convicted in any proceedings amount or would amount if convicted of the offences with which he is charged to a recent history of repeatedly committing imprisonable offences while remanded on bail or to local authority accommodation and
The court has been notified by the Secretary of State that electronic monitoring arrangements are available in the area and is satisfied that the necessary provision can be made under those arrangements and
The youth offender team has informed the court that the electronic monitoring requirement is suitable for that child or young person (sec 3AA Bail Act 1976) (Archbold 3-12).

Prosecutors are reminded that all non custodial remand options should be considered before an application for a remand with a security requirement or a remand in custody is made.

Youth Offender: Remands to Local Authority Accommodation

If bail is refused to a child or young person, the Court shall remand him or her to local authority accommodation. This also applies to committals to Crown Court whether for r trial or for plea and sentence. (Archbold 3 69).

Young person is defined for the purpose of remand as a person who has attained 14 years of age but is under 17 years. The remand is for a maximum of eight days, the remand in absence procedure not applying to youth offenders. If the remand is after conviction, then the maximum period is three weeks.

NB. Magistrates Courts Act 1980 Section 128A applies to youths. (Archbold 3 154).

The Court shall designate the local authority that is to receive the youth offender and may impose any condition on behalf of the local authority that could be imposed under Section 3(6) of the Act, although it must consult the authority before doing so. (Children and Young Persons Act 1969 Section 23(6)(7)).

The Court must explain to the offender in open Court and in ordinary language why it is imposing such conditions. The Court may also impose requirements on the authority itself for securing compliance with any conditions imposed or stipulating that he or she shall not be placed with a named person. (Children and Young Persons Act 1968 Section 23 (8) and (9)).

The authority itself may ask the Court to impose conditions under Section 23(7) Children and Young Persons Act 1969 and both it and the offender can apply to the Court to vary or revoke any conditions previously imposed.

Consultation with the local authority is defined as such consultation (if necessary) as is reasonably practicable in all the circumstances of the case. Thus, if the Court attempts to consult the authority, but the authority refuses to co-operate, this will surely be deemed sufficient.

You should know something of the local authoritys arrangements for accommodation of youth offenders on remand. In all applications therefore, it will be advisable to talk to the representative from the local authority. As a matter of good practice you should attempt to speak to the local authority representative before addressing the Court on the need for any conditions to be imposed on the remand, or for a stipulation that the defendant should not live with a named person.

Youth Offender: Remands with Security Requirements/Remand Centres

The Court may, after consultation with the local authority, impose a security requirement, i.e. a remand to secure accommodation, provided that the following conditions are met:

The youth has attained the age of 12, and
he is charged or has been convicted of a violent or sexual offence as defined under (section 31(1) CJA 1991) or an offence carrying imprisonment of 14 years or more in the case of an adult, or
he is charged with or has been convicted of one or more imprisonable offences which, together with any other imprisonable offences of which he has been convicted in any proceedings amount to a recent history of repeatedly committing imprisonable offences while remanded on bail or to local authority accommodation.(the offence criteria), and
in either case the Court is of the opinion after considering all the options for the remand of the person, that only remanding him to local authority accommodation with a security requirement would be adequate to protect the public from serious harm from him, or to prevent the commission by him of imprisonable offences.

It will be appropriate for you to address the Court on whether the offence criteria for a security requirement are met, and if so whether such a remand is necessary. Before making such an application, you should consult the yot representative to explain the reasons that a security requirement is sought and to ascertain whether they can offer a suitable alternative such as ISSP or bail support. You should only make an application for a security requirement when you have considered all of the alternatives and decided that they would be inadequate to protect the public from serious harm or to prevent the commission of further offences.

The Criminal Justice Act 1991 abolished remands to Prison and Remand Centres for offenders under 17, and replaces them by remands to secure accommodation. The Criminal Justice Act 1991 creates transitional provisions for 15 and 16 year old boys, allowing remand to Remand Centres at Prison to continue until the Home Secretary is satisfied that local authorities can meet the obligation to provide secure accommodation.

Where the court is satisfied that the security requirement is met but decides that:

it is undesirable to remand a 15 or 16 year old boy to remand centre or prison because of his physical or emotional immaturity or a propensity of his to harm himself (sec 23 (5A) Children and Young Persons Act 1969), and
the local authority, YOT or probation officer has been consulted, and
a bed in secure accommodation is available, then the remand will be to secure accommodation (sec 23 (4) Children and Young Persons Act 1969).

You should not use the mere existence of a previous conviction or a current charge of an offence punishable with 14 years or more to justify an application which otherwise lacks merit.

Seventeen year olds are treated as adults by the various remand provisions but will appear in the Youth Court. It is not necessary to satisfy the security requirement criteria, as remands will be to a remand centre or prison rather than secure accommodation. However, you should consider whether options such as bail ISSPs and electronic tagging are available and sufficient to alleviate any concerns before applying for a remand in custody.

Youth Offender: Secure Accommodation Orders

If a youth offender is remanded to local authority accommodation, the authority can separately apply to the Court for a Secure Accommodation Order. The application is made under Section 25 Children Act 1989, where the remand has been made by the Youth Court or Magistrates Court, the authority must apply to that Court and not to the Family Proceedings Court. (Section 25 Children Act 1989) (Archbold 3 79).

The power under Section 20(8) CA 1989 of a person with parental responsibility to remove a child or young person from secure accommodation does not apply to a child remanded on criminal charges.

The only grounds available to a local authority to make applications are:

He or she has a history of absconding and is likely to abscond from any other description of accommodation, and if he or she absconds is likely to suffer significant harm; or
If he or she is kept in any other description of accommodation he or she is likely to injure himself/herself or other persons.

The maximum period for which a Court can make a Secure Accommodation Order on a youth offender who has been remanded to local authority accommodation is the period of the remand. Where a youth offender is being looked after bys a local authority, the authority can apply to the Court for a Secure Accommodation Order for a period of up to 28 days.

If the authority intends to do so, then it may well be advisable for Prosecutors to delay any application for remand to local authority accommodation until the local authority application has been heard. If the application is successful you can consider seeking a remand on bail with a condition of residence where directed by the local authority. In cases where the offender is likely to be remanded for a considerable period of time, it will obviate the need for the offender to be produced at Court every 7 days.

If the offender is not already in care, then the remand must be dealt with first and a remand to local authority accommodation granted before the local authority has power to seek a Secure Accommodation Order. Such applications are made separate from the Prosecution application and some Courts do not allow the Prosecutor to be present whilst they are being made.

Time that is spent remanded or committed in custody (including Police detention, or in secure accommodation), is deducted from the final sentence. Time spent remanded or committed to local authority accommodation does not count against the final sentence.

Youth Offender: Local Remands

It is possible to remand a juvenile offender to Police cells on the basis of enquiries into other offences, as in the case of adults, subject to the usual considerations to bail, the maximum period is 24 hours as opposed to 3 days (s 23 (14)(b) Children and Young Persons Act 1969).

A custody officer, after charge, is under a duty to ensure that an arrested youth is moved to local authority accommodation, unless it is certified:

In the case of a juvenile who is 12 or over, that no secure accommodation is available and that keeping him in other local authority accommodation would not be adequate to protect the public from serious harm from him; or
In the case of any juvenile, for the reasons specific on the certificate, it is impracticable to make the transfer. (Archbold 3 103) and (s 38(6) Police and Criminal Evidence Act 1984).

Although the new sub-section uses the word impracticable in relation to those under 12 years, the construction of the statutory provision makes clear that the type of accommodation in which the local authority propose to place the youth is not a factor which the custody officer may take into account in considering whether the transfer is acceptable. As the detention of young people under 12 in secure accommodation would not be available to the Court, other than at the instigation of the local authority, itself under Section 25 of the Children Act 1989 it would be improper to try and use Section 38(6) PACE 1984 to achieve it.

Bail Applications In The Crown Court

Crown Court Applications: Pre-Committal or Transfer

The jurisdiction of the Crown Court is covered by Section 81 Supreme Court Act 1981 as amended. (Archbold 3 175). By virtue of Rule 19(2) Crown Court Rules 1982, the Prosecutor is entitled to at least 24 hours notice in writing from the Defence of the intention to make a bail application to the Crown Court. (Archbold 3 181).

The period of 24 hours must not be waived unless adequate information is readily accessible and the file can be thoroughly prepared for the purposes of the application.

It is vital that Heads of Criminal Justice and Trial Units ensure that a system is in place that provides for the thorough review and preparation of files which are to be the subject of a Crown Court bail application.

The use of fax facilities may assist the transmission of bail documents to the appropriate office but Prosecutors and Caseworkers need to bear in mind that fax is only viable where a relatively small amount of material has to be transmitted. The date and time of receipt of the notice must be recorded on the notice itself.

Conduct of the Crown Court Application

Wherever practicable the conduct of the application should be handled by a CPS Prosecutor rather than by an outside agent.

The Head of Trial Unit must ensure that where a particularly serious, sensitive or complex case appears in the list, the application is conducted by a Prosecutor of suitable experience.

Prosecutors and Caseworkers who are preparing cases should ensure that the files are thoroughly prepared for the Prosecutor who will appear in the Crown Court.

You should ensure that the Police are informed of the application and that consideration is given as to whether the officer in the case needs to attend the application. (This is in addition to any local practice whereby Crown Court judges require an officer to attend, as at present with the Central Criminal Court).

The Prosecutor must bring all relevant information to the attention of the judge whose responsibility it is to decide whether or not bail should be granted.

You should keep under review the grounds for opposing bail. It may be appropriate to put forward grounds and relevant considerations which were either not advanced or advanced unsuccessfully in the Magistrates Court.

Where a defendant has previous convictions, a full record of them must always be available for the judge.

Crown Court: Post Committal Applications

Where practicable, a CPS Prosecutor should conduct the application. If an agent is to be instructed, it is important that the file is thoroughly prepared and that a Prosecutor or Caseworker is in a position to brief him or her on any relevant matters on the morning of the application.

Applications to the High Court

The High Court no longer has jurisdiction to entertain an application in relation to bail:

where a Magistrates Court has granted or withheld bail or has varied the conditions of bail; nor
where the Crown Court has determined either:
- an application under section 3(8) (an application by the police, prosecutor or accused to vary conditions or to impose them where none were imposed); or
- an application under section 81(a), (b), (c) or (g) of the Supreme Court Act 1981.

The High Court has no jurisdiction to entertain a bail application where the Crown Court has heard an appeal by the accused against the imposition of certain bail conditions by magistrates under section 16 Criminal Justice Act 2003, nor where the Crown Court has granted or withheld bail in the case of retrials following a quashed acquittal (sections 88 and 89 of the CJA 2003).

The High Court jurisdiction in respect of habeas corpus is unaffected.

The High Court has considered whether defendants who are now deprived of a right to apply for High Court bail, should properly apply for habeas corpus. In Rupert Jason Sumpter v Director of Public Prosecutions (6th July 2004, unreported), Treacy J. stated:

The preservation of the Habeas Corpus remedy in these circumstances is not to be regarded as a substitute route for the now abolished inherent right of the High Court to grant bail after a decision by the crown court.

The intention of Parliament plainly was to achieve a degree of finality in relation to Bail Act applications and decision making and the route which has been adopted today is not one which the court wishes to encourage.

Bail Applications Involving the Official Solicitor

The Official Solicitor to the Supreme Court acts for defendants in custody who wish to apply for bail but are unable to do so through lack of means to instruct a solicitor. (RSC, Ord 79 r 9).

The procedure is that the defendant completes the appropriate Home Office form and the Prison or Remand Centre should send the form to the Official Solicitor and a copy, for information, to the local Crown Court Centre. At the same time the Prison or Remand Centre sends a request for a report in the form of a standard letter and questionnaire direct to the Police Station dealing with the defendants case. The questionnaire requests details of any objections to bail.

In the light of Section 15(3) Prosecution of Offences Act 1985, it has been decided (with the concurrence of the Official Solicitor) that responsibility for the content of the completed form should rest with the Crown Prosecution Service rather than the Police.

It is important, therefore, that Heads of Units ensure that there is a system for the passing of a questionnaire received from the police to the relevant Unit Office. The system should allow for the provision of any information from the Police which will assist the CPS in responding to the questionnaire.

The questionnaire should be properly completed by a Prosecutor and returned to the office of the Official Solicitor. Thereafter the Official Solicitor will deal with the CPS Unit Office.

The Official Solicitors address is 81 Chancery Lane, London, WC2A 1DD. (Telephone: General Enquiries 020 7911 7127; Fax: 020 7911 7105; DX 0012 London Chancery Lane WC2; Email enquiries@offsol.gsi.gov.uk;

Failing to Surrender to Bail: Charging Practice

Section 6 Bail Act 1976 creates two offences:

Failing without reasonable cause to surrender to custody (s 6(1)); and
Having reasonable cause for failing to surrender, failing to surrender to custody as soon after the appointed time as was reasonably practicable (s 6(2)). (Archbold 3 27).

It is punishable as a summary only offence (maximum penalty 3 months and/or level 5 fine) or as a contempt of court. If sentenced in the Crown Court (whether dealt with as a contempt of court or committed to the Crown Court for sentencing) the maximum penalty is 12 months imprisonment and/or fine.

The offences are often charged, and dealt with, in the alternative. The offence under Section 6(2) will cover situations where a defendant had a reasonable excuse for failing to surrender, but failed to surrender as soon as practicable after the excuse had ceased to apply.

Section 6 applies where:

The Police grant bail to a suspect to appear at the Police Station;
The Police grant bail to a defendant to appear at Court on the first appearance;
The Court grants bail to the defendant to return to Court at a later date and time.

When a defendant fails to appear at Court you should generally apply to the Court for a warrant without bail. In exceptional circumstances you may use your discretion as to whether a warrant backed for bail may be appropriate.

Where a person has been bailed and fails to surrender as required, you should follow the guidance set out in the <Consolidated Criminal Practice Direction amended and reissued 18 May 2004 paragraph I.13>.

The Consolidated Practice Direction sets out two principals for courts when dealing with failure to surrender offences, namely:

1. These offences should be dealt with as soon as possible (even if the offence that led to the grant of bail is adjourned); and

2. The Bail Act offence should result in a separate sentence from that imposed for other offences.

Accordingly, prosecutors must remind courts of the following:

To deal with Bail Act offence as soon as reasonably practicable;
Not to defer the Bail Act offence until the proceedings for the substantive offences have been concluded;
To consider whether bail should continue in the light of failure to surrender; and
To give reasons in open court if it is considered not practicable to deal with the Bail Act offence there and then, but rather to defer the matter until the end of proceedings. If this occurs, and the person is sentenced for the Bail Act offence at the same time as for the substantive offences, then the prosecutor must remind the court that any term of imprisonment for failure to surrender should run consecutively to any other term of custody.

Prosecutors should specifically endorse the file as to whether the Practice Direction was followed by the court, as well as any representations that were made. If prosecutors are faced with continuing court resistance to application of the Practice Direction, then the matter should be escalated by line management to the Chief Clerk in the relevant court centre.

Prosecutors should be aware that when section 15 (1) of the Criminal Justice Act 2003 is enacted, a defendant who fails to surrender, may not be granted bail unless the court is satisfied that there is no significant risk that, if released on bail, he would fail to surrender to custody again.

If the defendant gives a reasonable excuse for failing to surrender to bail, a prosecution under section 6(2) of the Act may still be appropriate.

At Committal Proceedings

If at committal proceedings the defendant also faces a charge of failing to surrender to bail you should consider the following:

Other than in exceptional circumstances the Court should be asked to deal with that charge in some way;
The hearing of the summary charge should not usually be adjourned sine die pending the outcome of Crown Court proceedings, since there is no reason why the summary trial cannot be held at short notice.

You should keep the provisions of Section 6(6)(b) Bail Act 1976 in mind as they enable a Magistrates Court which has convicted a defendant of a Bail Act offence to commit the defendant to the Crown Court for sentence on that offence. There is no power to commit without a conviction in the Magistrates Court.

Failing to Surrender to Bail: Public Interest Considerations

These considerations apply to both limbs of Section 6 Bail Act 1976.

A prosecution will normally be appropriate if a person has deliberately failed to attend with no reasonable cause unless he or she is able to put forward substantial mitigating circumstances.

Where a defendant has surrendered to bail at Court late, you should consider the following in deciding whether or not it is in the public interest to proceed with an offence of failing to surrender:

Has the defendant breached his bail before, in this case or in the past?
Has there been any inconvenience to the Court generally?
If late on the date for trial, whether any witnesses have been inconvenienced;
Any reason offered by the defendant for his late appearance; and
Has the defendant arrived at Court at a time after a warrant for his arrest has been issued?

In all cases you should usually proceed if the only excuses given fall within the following:

The defendant forgot the date;
The defendant confused his Court date with another Court date he had: or
The defendant lost his bail form.

Failing to Surrender to Bail: Breach of Court Granted Bail

A breach of Court granted bail is seen as a contempt of Court, therefore the Court should initiate proceedings itself after an express invitation to do so by the Prosecutor.

The six month time limit for laying an information does not apply to a breach of Court granted bail. Any proceedings should be initiated at the first hearing date at which the defendant appears following his arrest.

Where the Court accepts the invitation, the CPS will conduct the proceedings. You should then decide which of the two offences under Section 6 is the more appropriate upon which to proceed.

Failing to Surrender to Bail: Breach of Police Granted Bail

The Police may either:

Grant a person bail under section 30A PACE to attend a police station;
Grant a person pre-charge bail under section 37 PACE for a charging decision to be made;
Grant a person bail under Section 34(5) PACE for further investigations; or
Grant a person bail post-charge under section 38(1) PACE; or

Failure to answer bail in any of these cases is not seen as a contempt of Court since the Court did not impose the original bail.

Proceedings must be begun by the laying of an information. This should be done by the Prosecutor who should lay an oral information for failing to surrender to Police bail.

Section 127 Magistrates Courts Act 1980 no longer applies to offences contrary to Section 6 Bail Act. Magistrates have jurisdiction to try a Bail Act offence if an information was laid within six months of the Bail Act offence or within three months of the person surrendering to custody or being arrested or brought before a court for the Bail Act offence or the offence for which he was granted bail. There is no reason to interpret the legislation as applying only to offences of absconding where the bail was granted after the amendments to the legislation came into effect (5 April 2004). To interpret the legislation in this way would defeat its purpose and give those who abscond for more than six months an advantage over those who answer their police bail.

Where a defendant is charged, bailed and fails to appear at the specified date and time you should lay an information on the date of the failure to surrender.

Where a person is arrested or surrenders to custody at the police station or court and it appears that a Bail Act offence may have been committed at an earlier stage in the proceedings but no information laid, you should lay an information for failing to surrender to police bail.

Where a defendant has been granted Section 47(3) bail and fails to answer if you should consider advising the Police to lay an information in appropriate circumstances.

Where a defendant contests an offence under Section 6 Bail Act 1976 there is no need to call formal evidence unless contesting the defence of reasonable cause; the Courts record of the grant of bail, or the charge sheet, if Police bail, giving details of the time and date the defendant was due to surrender will be enough.

Sentencing

The amended Consolidated Criminal Practice Direction states (at paragraph 13.5) that the sentence for the breach of bail should usually be custodial and consecutive to any other custodial sentence. (R (Evans) v Chester Magistrates Court [2004] EWHC 536 (Admin); Neve [1989] 8 Cr App R (S) 270; McMullen [1998] EWCA Crim 2221; White and McKinnon [2002] EWCA Crim 2952)

Breach of Conditions of Bail

Breach of conditions of bail is not a Bail Act offence. Nor is it a contempt of court unless there is some additional feature. (Ashley [2004] 1 Cr App R 23)

A person so arrested must be brought as soon as practicable, and in any event within 24 hours of his arrest, before a Justice of the Peace of the Petty Sessions for the area in which he was arrested.

Culley v The Crown Court sitting at Dorchester [2007] EWHC 109 concludes that the defendant should not only be brought before the court within 24 hours but that the case should be dealt with within that 24 hours. Prosecutors must be vigilant in this respect and ensure proceedings are completed within 24 hours.

If a Justice of the Peace before whom he is brought is of the opinion that:

He is not likely to surrender to custody; or
Has broken or is likely to break any condition of bail,

he may remand him in custody or grant bail subject to the same or to different conditions. (Archbold 3 37), (Archbold 3 38).

The effect of Section 7(5) of the Bail Act 1976 was considered in R v Liverpool City Justices ex p DPP (1993) QB 233 which established five propositions:

The section contemplates the Constable who has arrested the person bailed bringing him before the Justice and stating his, namely the Constables, grounds for believing the defendant had broken or is likely to breach a condition of his bail. This may well involve the giving of hearsay evidence.
In the proceedings before the Justice, even where the defendant disputes the ground on which he was arrested, there is no necessity for the giving of evidence on oath or providing an opportunity to the person arrested, or his legal representatives, to cross-examine, or to give evidence himself. Nevertheless, the Justice should give the defendant an opportunity to respond to what the Constable alleges.
The Justice has no power to adjourn the proceedings and must consider, on the material before him, whether he is able to form one of the opinions set out in section 7(5) and if he does so, go on to decide whether to remand the defendant in custody or on bail on the same or more stringent conditions.
If the Justice feels unable to form one of the opinions set out in section 7(5) he must order the person concerned to be released on bail on the same terms as were originally imposed.
A proceeding under section 7(5) does not preclude a defendant who is remanded in custody from making an application for bail to the Justices, or to a Crown Court or to a Judge, as appropriate.

These authorities were considered in R (Vickers) v West London Magistrates Court [2003] EWHC 1809 (Admin), where it was held that the words reasonable excuse should not be imported into section 7(5), and the breach of conditions was just one factor for the court to take into account when deciding whether to grant bail again.

In practice Prosecutors should not ask Courts to deny a defendant bail simply because he or she was arrested in pursuance of section 7 and Courts should not withhold bail simply on that ground alone.

Procedure

Recording Bail Recommendations, Applications and Decisions

You should fully record the progress of bail applications and decisions. Proper recording of decisions by Prosecutors and Caseworkers throughout the bail process is crucial.

Prosecutors, whether reviewing a case or appearing as advocates, should ensure that the following information is recorded:

The bail or custody representations, including any proposed conditions;
The results of any discussions with the Police concerning bail;
Full reasons for the bail or custody representations referring to the relevant provisions of the Act where conditional bail or a remand in custody is suggested;
Recommendations, applications and decisions resulting from considering the provisions of the Bail (Amendment) Act 1993 (the BAA);
A full note of the Courts decision and the grounds for the decision.

Where appropriate, the oral notice and the time it was given in relation to an appeal under the BAA; and

Any relevant information which would not be readily apparent from the papers on the file.

Communication of Bail Results

Whilst it is not the responsibility of the CPS to provide results of hearings, there is a need to tell the Police the results of bail decisions in sensitive cases (for example rape, serious assaults, domestic violence), so that the Police can keep vulnerable witnesses informed of the position.

Heads of Units should ensure that there is an effective system in their unit of communicating such decisions.

Bail (Amendment) Act 1993 (The BAA)

The Magistrates Court and Bail (Amendment) Act 1993 (The BAA)

Where a person is charged with, or convicted of, offences punishable by imprisonment (see <section 18 Criminal Justice Act 2003>, in force 4/04/2005), the BAA gives the Prosecution a right of appeal to a Crown Court Judge against the granting of bail by Magistrates. The right is exercisable by a Crown Prosecutor or CPS agent (Archbold 3 86; Archbold 3 87).

The right of appeal may only be exercised if you have made representations that bail should not be granted, ie you have unequivocally opposed bail on the grounds contained in paragraph 2, Part 1, of Schedule 1 to the Act (Archbold 3 48).

The BAA confers considerable powers on the Prosecutor and it is absolutely essential that they are exercised judiciously and responsibly. A decision to appeal will be announced in open Court to the Magistrates who have just decided to grant the defendant bail. The decision to appeal may well be the focus of much public attention.

Level of decision making

In cases to which the BAA applies, decisions to appeal against the grant of bail should be made or approved in advance wherever possible by a lawyer of not less than 4 years service in the CPS. Any appeal against the grant of bail must be approved by a lawyer of Level E or above, within 24 hours of the service of the written notice of appeal.

Considerations re Appeal

The right of appeal under BAA should only be used in cases of grave concern where there are substantial grounds under Bail Act 1976 which would allow the Court to refuse bail. The Prosecutor considering whether an appeal is appropriate should apply an overarching test of whether there is a serious risk of harm to any member of the public or any other significant risk of harm to any member of the public or any other significant public interest ground.

Right of Appeal

Where a Prosecutor has decided to recommend to a Magistrates Court a remand in custody in a case to which the BAA applies, he or she must then go on to consider whether an appeal would be appropriate in the event that the Court decides to grant bail. The recommendation must be clearly endorsed on the file.

In considering whether an appeal is appropriate, the seriousness of the offence is a factor to be considered. The public interest ground should not be used to justify appeals in less serious cases. The nature of the offence which the defendant faces is relevant if it illustrates the risk created by granting bail. Examples might be extreme cases of personal violence such as murder, rape, robbery or aggravated burglary, particularly if it is alleged that weapons have been used in offences of violence or during the commission of sexual offences.

A serious risk of harm to public safety and property may give grounds to justify an appeal. Examples might be arson with intent to endanger life or being reckless as to whether life is endangered, terrorist offences or riot.

The risk to the individual victim or victims will be a factor. The following situations may justify the exercise of the right of appeal:

A record which discloses previous convictions, particularly of a similar kind against the same victim or victims with similar characteristics;
Evidence of violence or threats of violence to the victim or his or her family; or
Evidence of undue influence over the victim, for example where there are alleged sexual offences against young people or children.

A strong indication that the defendant may abscond may be relevant, particularly if he or she has no right to remain in Britain or has substantial assets or interests abroad. On the other hand the right of appeal should not be used simply because the defendant has no fixed address or settled way of life, particularly where this may be coupled with mental health problems (unless of course there are genuine indications of danger to the public).

This guidance is not intended to be exhaustive and each case will need to be decided on its merits after consideration of any representations made to the Court and any other information which may become available.

Bail information schemes where available are one source of additional information with the potential to improve the quality of decisions over bail.

Bail Information Schemes are operated in Courts by the Probation Service and in Prisons or Remand Centres by Prison service and probation service staff. They provide verified factual information on a Bail Information Report which is supplied to both the CPS and the Defence. Information must be verified from at least one source which will be indicated on the Bail Information Report.

In the event of a successful appeal to the Crown Court, the Judge should be invited to remand the defendant, where he or she is subject to the Magistrates Courts jurisdiction, to appear before the Justices on a date which must be no more than eight clear days from the date of his last appearance before them.

Time limits

Very strict time scales are imposed by the BAA. See the following:

Bail (Amendment) Act 1993 S 1 (Archbold 3 86; 3 87);
The Magistrates Courts Rules 1981 Rule 93A (Archbold 3 88; 3 89) (Stones 2003 16036A); and
The Crown Court Rules 1982 Rule 11A (Archbold 3 90; 3 91) (Stones 2003 16082A).

The oral notice must be given prior to the end of the proceedings in which bail is granted, ie before the Court proceeds to other business and before the defendant is released from custody. Oral notice must be entered immediately after the grant of bail with or without the conditions announced. If the defendant has left the Court prior to the oral notice of appeal being given, then it is too late;

Note:

The requirement that oral notice of appeal is given to the Magistrates Court at the conclusion of the proceedings was satisfied where notice was given five minutes after the Justices had withdrawn. <R v Warwick Crown Court, ex parte Jeffrey (2002)>

The oral notice must be followed by a written notice of appeal to be served on the Magistrates Court (i.e. the clerk) and on the defendant personally within two hours of the conclusion of the proceedings.

If the Prosecution fails to serve the notice on either the Court or the defendant within the two hour period, the defendant will be released from custody and the appeal treated as abandoned.

The hearing of the appeal at the Crown Court must be commenced within 48 hours from the date on which oral notice was given. The time limit runs from midnight of the date on which notice was given but does not include Saturdays, Sundays or Bank Holidays.

Procedure

Heads of Units should nominate suitable SCPs with at least four years service or more senior lawyers. Nominations should not be made on the basis of length of service alone.

Heads of Units should ensure that a list of nominated Prosecutors with telephone contact points is available to Prosecutors and Agents at all Court Centres.

Wherever possible, Prosecutors who are not nominated should seek prior approval to proceed to enter both oral and written notices of appeal from a nominated Crown Prosecutor, Head of Unit or Level E Lawyer.

If having heard the Defence representations in Court and having considered any other information not previously available you still consider that the right should be used, you may do so.

If for any reason it is not possible to obtain prior approval from a nominated Crown Prosecutor and you consider it essential to give an oral notice of appeal, you should do so. If at all possible you should obtain approval from a nominated Crown Prosecutor before entering the written notice.

In any event, the decision to appeal must be approved by a Level E lawyer or above, the same day or within 24 hours. Agents must, if at all possible, obtain prior authority from a nominated Crown Prosecutor before exercising the right of appeal.

Once an oral notice of appeal has been given, the defendant is remanded in custody until the first of the following events:

A failure to serve the written notice on both the Court and the defendant within two hours.
A formal abandonment of the appeal following the service of a written notice of appeal; or
The determination of the appeal.

Where service of the notice cannot be made in Court immediately following the giving of oral notice to the Court, every effort should be made by the Prosecutors to ensure the production of the defendant to the Court within the two hour time limit in order to effect personal service of the written notice.

Where this is not possible, there should be liaison with the Police at local level in order to guarantee personal service of the written notice within the required period. The service of the prosecution notice should be suitably endorsed by the person who effects service.

In busy Courts, Prosecutors must, wherever possible, seek an adjournment for a sufficient period of time to allow for approval from a nominated Prosecutor to continue the appeal and to prepare the written notices.

It is the responsibility of the Magistrates Clerk to advise the Crown Court of the appeal.

Given the need for the approval of the appeal by a Level E Lawyer, Areas will need to ensure the availability of a lawyer at that level, on call at weekends and Bank Holidays. The approval of the lawyer concerned must be endorsed on the CPS file jacket.

After the written notice of appeal has been given, you should ensure that the file is reviewed again and finally prepared for the hearing of the appeal.

Once the case has the approval of a nominated Prosecutor and a Level E Lawyer or above, it should be passed to the advocate who will deal with it in the Crown Court. Given that the advocate will be expected to rehearse the full arguments for and against the grant of bail to the Judge, it is important that the requirements for full endorsements have been followed.

Where appeals are heard in Chambers, CPS should be represented by a Prosecutor of suitable experience and ability. If the Judge insists that the hearing should be in open Court, Counsel may have to be instructed at very short notice.

If the prosecution appeal is successful, the defendant will be remanded in custody to appear at the Magistrates Court on a date not more than eight clear days from the original Magistrates Court hearing. The Crown Court has no power to remand for a longer period.

This Act does not circumvent Custody Time Limit Rules.

The power to abandon an appeal exists to enable the defendant to be released as soon as possible. This will occur where the Prosecution has decided upon reflection that the appeal should not have been made or where further information is received which suggests that the appeal need not be pursued.

Abandonment should always be by way of written notice, whichever stage the appeal has reached. Schedule 10 to Crown Court (Amendment) Rules 1994 sets out the form of notice to be used. The notice must be served on the defendant or his or her legal representative, the Magistrates Clerk and the Crown Court forthwith.

Whenever possible the notice of abandonment should be sent by fax. The Magistrates Clerk is responsible for arranging the release of the defendant on bail, subject to the conditions, if any, originally imposed by the Magistrates.

Monitoring

A log should be kept in Branches of all appeals, recording the following information:

Name of the defendant;

Unique reference number/file number;

Nature of the offences charged;

Date the appeal was entered;

Any failure to give the written notice within two hours and why;

Date the appeal was abandoned;

Date the appeal was heard; and

Result of the appeal.

How to use this Legal Guidance

CPS Public Consultations

Bail

Principle

Guidance

Relevant Legislation

Statutory charging

Conditional bail

Offence of absconding

Breach of conditions:

Revised Practice and Procedure

Pre Charge

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Magistrates Courts: The Role of the Prosecutor

Imprisonable Offences

Imprisonable Summary Offences

Section 52 and Schedule 12 Criminal Justice and Immigration Act 2008

Exceptions for drug users in certain areas

Criminal Damage offences

Police bail

Court Conditional Bail

Electronic tagging for Adults

The Criminal Justice and Immigration Act 2008

Sections 21, 22, 23, 51 and Schedules 6 and 11 (in force 3 November 2008).

Sections 21 to 23 and Schedule 6: Credit for period of remand on bail

Section 51 and Schedule 11

A Remand in Custody

Bail Information Scheme

Provision of New Bail Accommodation and Support Service for Defendants

Bail Accommodation and Support Service

How will the service work

Exception to the Right of Bail: Defendant on Bail at time of alleged offence

Non-Imprisonable Offences

Lack of Information

The Application in Court

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Police bail

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Defence right of appeal against imposition of conditions by magistrates

Prosecution Application to Reconsider Bail: Section 5B Bail Act 1976

Sureties

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Section 19 Criminal Justice Act 2003 Drug Users: Restriction on Bail

Magistrates Courts: Post Conviction Application

Committal for Trial

Absconding

Youths and Youth Courts

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Youth Offender: Remands

Youth Offender : Bail

Youth Offender: Remands to Local Authority Accommodation

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Youth Offender: Secure Accommodation Orders

Youth Offender: Local Remands

Bail Applications In The Crown Court

Crown Court Applications: Pre-Committal or Transfer

Conduct of the Crown Court Application

Crown Court: Post Committal Applications

Applications to the High Court

Bail Applications Involving the Official Solicitor

Failing to Surrender to Bail: Charging Practice

At Committal Proceedings

Failing to Surrender to Bail: Public Interest Considerations

Failing to Surrender to Bail: Breach of Court Granted Bail

Failing to Surrender to Bail: Breach of Police Granted Bail

Sentencing

Breach of Conditions of Bail

Procedure

Recording Bail Recommendations, Applications and Decisions

Communication of Bail Results

Bail (Amendment) Act 1993 (The BAA)

The Magistrates Court and Bail (Amendment) Act 1993 (The BAA)

Level of decision making

Considerations re Appeal

Right of Appeal

Time limits

Procedure

Monitoring