What Do You Know About....Bail

Explanation
EXPLANATORY NOTE: The starting point for most bail decisions for summary offences is that the defendant has a right to unconditional bail.
This means that no conditions are placed on the defendant, other than a compulsion to answer to bail at the prescribed time and place. Failure to do so would usually mean that a Bail Act charge could be laid. The defendant is also reminded that the commission of any offence while on Bail will automatically aggravate that offence, probably leading to a higher sentence.

Explanation
EXPLANATORY NOTE: The most important investigation is that of risk and there are three elements to this :-

• Previous failure to appear in criminal proceedings and as a result of that failure court believes he will fail to attend
• Defenedant on bail at time of offence and substantial grounds to believe would commit offences if released
• Subtantial grounds to believe that if released defendant would offend by engaging in conduct like to cause physical or mental injury or fear therof

(The potential sentence also needs consideration as this may affect the defendant’s likelihood to return to court, particularly if there is a possibility of a custodial sentence.)

It is basically the defendant’s past history that will give an indication of the level of risk. Does the record show any history that would indicate an increased level of risk of the first two ? Has he ever offended while on bail, has he ever failed to attend Court? If he has and particularly if this has happened recently, then there is clearly an enhanced risk which must be reduced when bail is concerned. Interference with witnesses is handled slightly differently and is often based on the nature of the offence. If the offence is one of violence and particularly domestic violence, then is important to ensure that the defendant and the aggrieved party do not come into contact with each other. Both prosecution and defence are likely to address the Bench on these issues, and they may have worked out a potential set of conditions, but it is the Bench who will decide on the level of risk and how it should be handled.

Explanation
Breach of bail conditions is not an offence as such, but the responsibility of the court is to reach a decision on whether the bail conditions have been breached, and then to re-consider bail as a whole and decide whether to grant bail again on the same or different conditions or to remand into custody. There is no power to impose a penalty. The test is 'are you of the opinion that the defendant has breached bail.' If there is a breach you review the bail decision taking into account their attitude to bail.

Explanation
The Structured Decision Making Bail Form is available to magistrates in The Retiring Room. Please note there are two different forms containing different criteria for summary offences and indictable offences

Explanation
Conditions can include residence, geographical, reporting, curfew, non-contact and surety. Any conditions that are placed on a defendant should be designed to reduce the risk and reasons must be given for not granting unconditional bail.
It is normally the Prosecution that will ask for either a remand in custody or at least conditions to reduce the risk. The Defence are likely to be seen to minimise the potential risk that their client poses. There may have been some discussions between the parties as to suitable conditions, but the decision lies with the Bench.
Typical of these is a reporting condition, to continually remind the defendant to turn up at court. Often there may be a suggested condition, particularly for those accused of and with a history of shoplifting, not to go to a particular store or shopping mall.
With violent offences there may be the suggestion that the defendant moves out of his usual place of residence. There may also be a suggestion of a curfew, particularly for night-time offenders.
In some circumstances a security (where the defendant stands the risk of losing an amount set by the court if bail is not answered) or surety (where another person stands the financial risk)
All of these are considered by the Bench who arrive at their decision and give reasons for their decision. However, it must be stressed that any condition must be seen to be placed on the defendant to reduce a particular element of risk.

Explanation
Any conditions that are placed on a defendant must be proportionate and must be seen to address the risks identified. Conditions must not be seen as punishment, as the defendant at this stage has not been found guilty of any offence. Conditions should also be able to be policed. If there are real concerns that the risks cannot be met by conditions, then a remand in custody is almost inevitable

Explanation
Review the structured decision making forms for bail and note the different criteria for summary offences and indictable offences.