PART 19BAIL AND CUSTODY TIME LIMITS
SECTION 3: CUSTODY TIME LIMITS
Appeal against custody time limit decision19.17
1
This rule applies where—
a
a defendant wants to appeal to the Crown Court against a decision by a magistrates’ court to extend a custody time limit;
b
a prosecutor wants to appeal to the Crown Court against a decision by a magistrates’ court to refuse to extend a custody time limit.
2
The appellant must serve an appeal notice—
a
on—
i
the other party to the decision,
ii
the Crown Court officer, and
iii
the magistrates’ court officer;
b
in a defendant’s appeal, as soon as practicable after the decision under appeal;
c
in a prosecutor’s appeal—
i
as soon as practicable after the decision under appeal, and
ii
before the relevant custody time limit expires.
3
The appeal notice must specify—
a
each offence with which the defendant is charged;
b
the decision under appeal;
c
the date on which the relevant custody time limit will expire;
d
on a defendant’s appeal, the date on which the relevant custody time limit would have expired but for the decision under appeal; and
e
the grounds of appeal.
4
The Crown Court officer must arrange for the Crown Court to hear the appeal as soon as practicable and in any event no later than the second business day after the appeal notice was served.
5
The appellant—
a
may abandon an appeal without the Crown Court’s permission, by serving a notice of abandonment, signed by or on behalf of the appellant, on—
i
the other party,
ii
the Crown Court officer, and
iii
the magistrates’ court officer
before the hearing of the appeal begins; but
b
after the hearing of the appeal begins, may only abandon the appeal with the Crown Court’s permission.
[Note. See section 22(7), (8), (9) of the Prosecution of Offences Act 1985371.]
Summary of the general entitlement to bail and of the exceptions
The court must consider bail whenever it can order the defendant’s detention pending trial or sentencing, or in an extradition case, and whether an application is made or not. Under section 4 of the Bail Act 1976372, the general rule, subject to exceptions, is that a defendant must be granted bail. Under Part IIA of Schedule 1 to the Act373, if the court decides not to grant the defendant bail then at each subsequent hearing the court must consider whether to grant bail.
Section 3 of the Bail Act 1976374allows the court, before granting bail, to require a surety or security to secure the defendant’s surrender to custody; and allows the court, on granting bail, to impose such requirements as appear to the court to be necessary—
a
to secure that the defendant surrenders to custody;
b
to secure that the defendant does not commit an offence while on bail;
c
to secure that the defendant does not interfere with witnesses or otherwise obstruct the course of justice whether in relation to the defendant or any other person;
d
for the defendant’s own protection or, if a child or young person, for the defendant’s welfare or in the defendant’s own interests;
e
to secure the defendant’s availability for the purpose of enabling enquiries or a report to be made to assist the court in dealing with the defendant for the offence;
f
to secure that before the time appointed for surrender to custody the defendant attends an interview with a legal representative.
Under section 3 of the Bail Act 1976, a person granted bail in criminal proceedings is under a duty to surrender to custody as required by that bail. Under section 6 of the Act, such a person who fails without reasonable cause so to surrender commits an offence and, under section 7, may be arrested.
Exceptions to the general right to bail are listed in Schedule 1 to the Bail Act 1976375. They differ according to the category of offence concerned. Under section 4(2B) of the 1976 Act376, in an extradition case there is no general right to bail where the defendant is alleged to have been convicted in the territory requesting extradition.
Under Part I of Schedule 1 to the 1976 Act, where the offence is punishable with imprisonment, and is not one that can be tried only in a magistrates’ court, or in an extradition case—
a
the defendant need not be granted bail if the court is satisfied that—
i
there are substantial grounds for believing that, if released on bail (with or without conditions), the defendant would fail to surrender to custody, would commit an offence, or would interfere with witnesses or otherwise obstruct the course of justice,
ii
there are substantial grounds for believing that, if released on bail (with or without conditions), the defendant would commit an offence by engaging in conduct that would, or would be likely to, cause physical or mental injury to an associated person (within the meaning of section 33 of the Family Law Act 1996), or cause that person to fear injury,
iii
the defendant should be kept in custody for his or her own protection or welfare, or
iv
it has not been practicable, for want of time since the institution of the proceedings, to obtain sufficient information for the court to take the decisions required;
b
the defendant need not be granted bail if it appears to the court that the defendant was on bail at the time of the offence (this exception does not apply in an extradition case);
c
the defendant need not be granted bail if, having been released on bail in the case on a previous occasion, the defendant since has been arrested for breach of bail;
d
the defendant need not be granted bail if in custody pursuant to a sentence;
e
the defendant need not be granted bail if it appears to the court that it would be impracticable to complete enquiries or a report for which the case is to be adjourned without keeping the defendant in custody;
f
the defendant may not be granted bail if charged with murder, unless the court is of the opinion that there is no significant risk of the defendant committing an offence while on bail that would, or would be likely to, cause physical or mental injury to some other person;
g
the defendant in an extradition case need not be granted bail if he or she was on bail on the date of the alleged offence and that offence is not one that could be tried only in a magistrates’ court if it were committed in England or Wales.
Exceptions (a)(i), (b) and (c) do not apply where—
a
the defendant is 18 or over;
b
the defendant has not been convicted of an offence in those proceedings; and
c
it appears to the court that there is no real prospect that the defendant will be sentenced to a custodial sentence in those proceedings.
In deciding whether an exception to the right to bail applies the court must have regard to any relevant consideration, including—
a
the nature and seriousness of the offence, and the probable method of dealing with the defendant for it;
b
the character, antecedents, associations and community ties of the defendant;
c
the defendant’s record of fulfilling obligations imposed under previous grants of bail; and
d
except where the case is adjourned for enquires or a report, the strength of the evidence of the defendant having committed the offence.
Under Part IA of Schedule 1 to the 1976 Act, where the offence is punishable with imprisonment, and is one that can be tried only in a magistrates’ court—
a
the defendant need not be granted bail if it appears to the court that—
i
having previously been granted bail in criminal proceedings, the defendant has failed to surrender as required and, in view of that failure, the court believes that, if released on bail (with or without conditions), the defendant would fail to surrender to custody, or
ii
the defendant was on bail on the date of the offence and the court is satisfied that there are substantial grounds for believing that, if released on bail (with or without conditions), the defendant would commit an offence while on bail;
b
the defendant need not be granted bail if the court is satisfied that—
i
there are substantial grounds for believing that, if released on bail (with or without conditions), the defendant would commit an offence while on bail by engaging in conduct that would, or would be likely to, cause physical or mental injury to some other person, or cause some other person to fear such injury,
ii
the defendant should be kept in custody for his or her own protection or welfare, or
iii
it has not been practicable, for want of time since the institution of the proceedings, to obtain sufficient information for the court to take the decisions required;
c
the defendant need not be granted bail if in custody pursuant to a sentence;
d
the defendant need not be granted bail if, having been released on bail in the case on a previous occasion, the defendant since has been arrested for breach of bail, and the court is satisfied that there are substantial grounds for believing that, if released on bail (with or without conditions), the defendant would fail to surrender to custody, would commit an offence, or would interfere with witnesses or otherwise obstruct the course of justice.
Exceptions (a) and (d) do not apply where—
a
the defendant is 18 or over;
b
the defendant has not been convicted of an offence in those proceedings; and
c
it appears to the court that there is no real prospect that the defendant will be sentenced to a custodial sentence in those proceedings.
Under Part II of Schedule 1 to the 1976 Act, where the offence is not punishable with imprisonment—
a
the defendant need not be granted bail if it appears to the court that having previously been granted bail in criminal proceedings, the defendant has failed to surrender as required and, in view of that failure, the court believes that, if released on bail (with or without conditions), the defendant would fail to surrender to custody;
b
the defendant need not be granted bail if the court is satisfied that the defendant should be kept in custody for his or her own protection or welfare;
c
the defendant need not be granted bail if in custody pursuant to a sentence;
d
the defendant need not be granted bail if, having been released on bail in the case on a previous occasion, the defendant since has been arrested for breach of bail, and the court is satisfied that there are substantial grounds for believing that, if released on bail (with or without conditions), the defendant would fail to surrender to custody, would commit an offence, or would interfere with witnesses or otherwise obstruct the course of justice;
e
the defendant need not be granted bail if, having been released on bail in the case on a previous occasion, the defendant since has been arrested for breach of bail, and the court is satisfied that there are substantial grounds for believing that, if released on bail (with or without conditions), the defendant would commit an offence while on bail by engaging in conduct that would, or would be likely to, cause physical or mental injury to an associated person (within the meaning of section 33 of the Family Law Act 1996), or to cause that person to fear such injury.
Exceptions (a) and (d) apply only where—
a
the defendant is under 18; and
b
the defendant has been convicted in those proceedings.
Further exceptions to the general right to bail are set out in section 25 of the Criminal Justice and Public Order Act 1994377, under which a defendant charged with murder, attempted murder, manslaughter, rape or another sexual offence specified in that section, and who has been previously convicted of such an offence, may be granted bail only if there are exceptional circumstances which justify it.