9/20/24, 9:50 Crime W4 - Criminal litigation, workshop 4 notes.
AM Prepare/Apply/Collaborate…
Criminal Li 琀椀 ga 琀椀 on: Workshop 4
Prepare: BPP Adapt
Pre-trial
1. Bail: Presumptions and objections
2. Bail: Conditions and breach
3. Bail: Procedure
Bail: Presumptions and objections
Key terminology:
• Adjournment: where court can’t conclude case in one hearing, case
will be adjourned.
• Remand: when D sent away and told to come back another day. D
on remand is obliged to come back to court to continue with the
case. Remand may be either served in custody or served in
community on bail.
Remanded into custody
• P must apply to have D remanded into custody if desired.
• In order to have D remanded into custody, P presents objections to
bail due to the presumption in favour of bail.
• The objections to bail are finite and defined by law.
• Serious offences have broader and trivial offences have fewer or
more qualified objections – the reason for different objections is
that if D is refused bail and kept in custody for a trivial offence, the
worry is that d will be in custody for longer whilst awaiting trial
than D would ever be in custody as part of sentence.
Bail
• Bail is “the release of a person subject to a duty to surrender to
custody at an appointed time and place”.
Who applies for bail and when?
• Once P raises objection to bail, defence must apply for bail. All cases
commence in Mags’ so first decision re bail is made by them
(except murder where only CC Judge can grant bail).
• Defence and P can appeal decisions on bail from Mags’.
Conditional bail
• Bail can be granted subject to conditions; defence advocate must
consider what sort of conditions might alleviate court’s concerns re
D’s behaviour on bail
The right to bail
• Principle of right to bail means that P needs to apply for remand
into custody
o S.4 Bail Act 1976 - court must presume D is entitled to bail,
and it is only if an objection is properly made out that bail
can be refused.
about:blan 1/14
k
, 9/20/24, 9:50 Crime W4 - Criminal litigation, workshop 4 notes.
AM Prepare/Apply/Collaborate…
Criminal Li 琀椀 ga 琀椀 on: Workshop 4
• Purpose of right to bail - P has to apply to remove bail as matter of
normal practice. P has to make the first move and apply for D to be
remanded into custody (by rebutting the right on a legally specified
objection)
• The presumption in favour of bail is complicated by offences like
murder (where statute wording appears to remove the
presumption)
• Right to bail still applies on conviction whilst D awaits sentencing
• There are time limits for getting a D through the criminal justice
system and so right to bail usually becomes absolute if case hasn’t
progressed according to time limits
The right to bail does not apply to those:
a) Appealing their conviction
• Because court has already concluded D is guilty so are less anxious
about putting a person alr determined guilty into custody than
those awaiting trial
b) D’s being committed for sentence from Mags’ to the CC
• It is the view of Mags’ that D is deserving of a sentence more than
6 months so is low risk that D put into custody at this point will
receive a lesser sentence than the time served in custody waiting
for case to be moved from Mags’ to CC
Bail can be granted in both these cases but the presumption does not apply.
Grounds on which Prosecution can object
• Driven by the seriousness of the offence(s) charged
• Objections follow the classification of offence:
• Indictable cases:
o Objections for these are most important to learn.
• Summary cases, imprisonable:
o Not all of these carry custody as an available sentence.
o Common assault – summary only but can attract a custodial
sentence.
• Summary non-imprisonable cases:
o Many of these relate to road traffic
o Presents a problem – what do you do if D won’t attend court and
it’s a minor offence that can’t be punished with custody (e.g.
defective fog light on car)
o Should courts remove bail for trivial offences?
Grounds of objection
The objections you can take to bail being granted are called ‘grounds’ of
objection. P can take as many/few as it wishes within those permitted
grounds and only needs to succeed in showing that one of the grounds is
made out in order to have bail denied.
If court considers that the ground would be made out if D were to be
simply released but considers that conditions put upon release of D
would alleviate concerns about
about:blan 2/14
k
AM Prepare/Apply/Collaborate…
Criminal Li 琀椀 ga 琀椀 on: Workshop 4
Prepare: BPP Adapt
Pre-trial
1. Bail: Presumptions and objections
2. Bail: Conditions and breach
3. Bail: Procedure
Bail: Presumptions and objections
Key terminology:
• Adjournment: where court can’t conclude case in one hearing, case
will be adjourned.
• Remand: when D sent away and told to come back another day. D
on remand is obliged to come back to court to continue with the
case. Remand may be either served in custody or served in
community on bail.
Remanded into custody
• P must apply to have D remanded into custody if desired.
• In order to have D remanded into custody, P presents objections to
bail due to the presumption in favour of bail.
• The objections to bail are finite and defined by law.
• Serious offences have broader and trivial offences have fewer or
more qualified objections – the reason for different objections is
that if D is refused bail and kept in custody for a trivial offence, the
worry is that d will be in custody for longer whilst awaiting trial
than D would ever be in custody as part of sentence.
Bail
• Bail is “the release of a person subject to a duty to surrender to
custody at an appointed time and place”.
Who applies for bail and when?
• Once P raises objection to bail, defence must apply for bail. All cases
commence in Mags’ so first decision re bail is made by them
(except murder where only CC Judge can grant bail).
• Defence and P can appeal decisions on bail from Mags’.
Conditional bail
• Bail can be granted subject to conditions; defence advocate must
consider what sort of conditions might alleviate court’s concerns re
D’s behaviour on bail
The right to bail
• Principle of right to bail means that P needs to apply for remand
into custody
o S.4 Bail Act 1976 - court must presume D is entitled to bail,
and it is only if an objection is properly made out that bail
can be refused.
about:blan 1/14
k
, 9/20/24, 9:50 Crime W4 - Criminal litigation, workshop 4 notes.
AM Prepare/Apply/Collaborate…
Criminal Li 琀椀 ga 琀椀 on: Workshop 4
• Purpose of right to bail - P has to apply to remove bail as matter of
normal practice. P has to make the first move and apply for D to be
remanded into custody (by rebutting the right on a legally specified
objection)
• The presumption in favour of bail is complicated by offences like
murder (where statute wording appears to remove the
presumption)
• Right to bail still applies on conviction whilst D awaits sentencing
• There are time limits for getting a D through the criminal justice
system and so right to bail usually becomes absolute if case hasn’t
progressed according to time limits
The right to bail does not apply to those:
a) Appealing their conviction
• Because court has already concluded D is guilty so are less anxious
about putting a person alr determined guilty into custody than
those awaiting trial
b) D’s being committed for sentence from Mags’ to the CC
• It is the view of Mags’ that D is deserving of a sentence more than
6 months so is low risk that D put into custody at this point will
receive a lesser sentence than the time served in custody waiting
for case to be moved from Mags’ to CC
Bail can be granted in both these cases but the presumption does not apply.
Grounds on which Prosecution can object
• Driven by the seriousness of the offence(s) charged
• Objections follow the classification of offence:
• Indictable cases:
o Objections for these are most important to learn.
• Summary cases, imprisonable:
o Not all of these carry custody as an available sentence.
o Common assault – summary only but can attract a custodial
sentence.
• Summary non-imprisonable cases:
o Many of these relate to road traffic
o Presents a problem – what do you do if D won’t attend court and
it’s a minor offence that can’t be punished with custody (e.g.
defective fog light on car)
o Should courts remove bail for trivial offences?
Grounds of objection
The objections you can take to bail being granted are called ‘grounds’ of
objection. P can take as many/few as it wishes within those permitted
grounds and only needs to succeed in showing that one of the grounds is
made out in order to have bail denied.
If court considers that the ground would be made out if D were to be
simply released but considers that conditions put upon release of D
would alleviate concerns about
about:blan 2/14
k
