‘Show us your cards’:
The bail changes introduced
by LASPO
1.
On 3rd December 2012 the Legal Aid, Sentencing and Punishment of Offenders
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Act 2012 brought into force Schedule 11 which consists of 35 paragraphs amending
the Bail Act 1976, and Parts 1, 1A and 2 of Schedule 1, Bail Act 1976, the Bail
(Amendment) Act 1993, PACE 1974 and the Extradition Act 2003.
2.
The changes are summarised below:
i)
No real prospect that the defendant will be sentenced to a custodial sentence
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Liability to arrest for absconding or breaking conditions of bail:
Magistrates may not remand or commit a person to custody if the person
has attained the age of 18, was released on bail in non-extradition
proceedings, has not been convicted of an offence in those proceedings
and it appears that there is no real prospect that the person will be
sentenced to a custodial sentence in the proceedings (section 7, new
subsection 5A BA 1976).
Bail for defendants accused or convicted of certain imprisonable offences
(Part 1 Schedule 1 BA 1976): Inserts new paragraph 1A which provides
that in relation to paragraph 2 (refusal of bail for failure to surrender to
custody), paragraph 2A (refusal of bail where defendant would commit
further offences on bail) and paragraph 6 (refusal of bail in certain
circumstances when arrested under section 7), those do not apply where
the defendant has reached the age of 18, the defendant has not been
convicted of an offence in those proceedings and it appears to the court
that there is no real prospect that the defendant will receive a custodial
sentence in those proceedings.
Section 90 LASPO
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Bail for defendants accused or convicted of imprisonable offences (Part
1A Schedule 1 BA 1976): Insert new paragraph 1A which provides that in
relation to paragraph 2 (refusal of bail for failure to surrender to custody),
paragraph 3 (refusal of bail where defendant would commit further
offences on bail) and paragraph 7 (refusal of bail in certain circumstances
when arrested under section 7) those paragraphs do not apply where the
defendant has reached the age of 18, the defendant has not been
convicted of an offence in those proceedings and it appears to the court
that there is no real prospect that the defendant will receive a custodial
sentence in those proceedings.
A custody officer is required to consider whether there is a real prospect
that the defendant will be sentenced to a custodial sentence when
ordering release from police bail (amended section 38(2A) PACE 1974).
ii) Would or would be likely to cause physical or mental injury or fear of the same:
A defendant need not be granted bail if there are substantial grounds for believing that
the defendant if released on bail (whether subject to conditions or not) would commit an
offence on bail by engaging in conduct that would or would be likely to cause physical or
mental injury or fear of the same to an associated person. ‘Associated person’ is defined
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in section 62 Family Law Act 1996 .
This provision is inserted in a new paragraph 2ZA Part 1 Schedule 1 BA 1976
(defendants accused or convicted of imprisonable offences) and paragraph 6 Part 2
Schedule 2 BA 1976 (defendants accused or convicted of non-imprisonable offences).
Paragraph 4 Part 1A Schedule is amended from providing that a defendant need not be
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granted bail if there is a fear of physical or mental injury to an associated person , as
defined by section 62 FLA 1996.
iii) Prosecution right of appeal
The prosecution now has a right of appeal in bail decisions from the Crown Court to the
High Court (new section 1B Bail (Amendment) Act 1993). This right does not exist when
the prosecution has used section 1B B (A) A 1993 to appeal from the Magistrates Court
to the Crown Court on a bail decision.
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Widely defined including: former or current persons who were married, civil partners, co-habitants, lived together in household
as employee, tenant, lodger or boarder, relative, agreed to marry (terminated or not), intimate personal relationship (is or was of
significant duration), have entered into a civil partnership agreement, in relation to a child they fall within this section or are
parties to the same family proceedings.
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The words ‘associated person’ were ‘a person other than the defendant’ prior to the amendment.
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iv) Definitions
A ‘young person’ is now aged 14 to under 18 (section 2(2) BA 1976). Previously it was
defined as a person who has attained the age of 14 and was under the age of 17.
v) Electronic monitoring requirements
A new section 3AAA BA 1976 provides conditions for the imposition of electronic
monitoring requirements to be met when granting a young person bail in extradition
proceedings. For the imposition of electronic monitoring for other persons, where a
person is aged 17, there is no longer a requirement that the youth offending team has
informed the court that the imposition of electronic monitoring requirements will be
suitable in his case.
vi) Change in standard of proof (?)
A defendant need not be granted bail if he was on bail at the time of the offence and the
offence is indictable or triable either way (paragraph 2A Part 1 Schedule 1 BA 1976).
Paragraph 2A previously stated that a defendant may not be granted bail if he is 18 or
over and committed an offence whilst on bail unless the court is satisfied that there is no
significant risk of his committing an offence while on bail.
Class A drug-use related offences: Defendants need not be granted bail unless the court
is of the opinion that there is no significant risk of his committing offences on bail
(paragraphs 6A-6C part 1 schedule 1 BA 1976).
No bail for defendants charged with offence of homicide or rape after previous conviction
for such offences: the court now has to be of the opinion that there are exceptional
circumstances which justify bail, where as previously they had to be satisfied that there
were (section 25 Criminal Justice and Public Order 1994).
Comments on changes
3.
The ‘no real prospect test’ requires the courts to consider granting bail to a defendant
where there is no real prospect that the defendant will receive a custodial sentence
when he is sentenced.
4.
This extends the scope of the court’s considerations when making decisions about
bail. Previously, the scope was limited to the defendant’s likely behaviour prior to trial
if he was granted bail, for example, would he commit further offences, interfere with
witnesses or fail to surrender. Now the court is required to consider the substantive
nature of the offence in more detail and the likely sentence after conclusion of the
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proceedings. It is a more holistic approach taking into account the whole trial
process and beyond, as even custody officers are now required to take into
consideration the likelihood of a custodial sentence when granting police bail.
5.
This test should reduce the number of defendants remanded in custody and the
related costs.
6.
The change in approach should shift the balance in favour of the defence, expanding
the nature and scope of the submissions that can be made by defendants that have
to be specifically considered by the court.
7.
Whilst defence counsel could previously advise a defendant about the likely sentence
he may receive in view of statute, case law and the sentencing guidelines (and
experience), there will now be an indication from the court during a bail application.
The impending doom of a custodial sentence (which could loom until the sentencing
hearing) may have previously caused defendants to enter guilty pleas as soon as
possible: it seems plausible that they may now hedge their bets until after receiving a
decision on bail. If they are granted bail, they may be less willing to plead throughout
the proceedings on the basis that they believe they are unlikely to get a custodial
sentence.
8.
On the other hand, whilst the bail decision may raise a legitimate expectation about
likely sentence, the sentencing court may still order a custodial sentence. Therefore
a defendant who has been granted bail under the new provisions may lose the
benefit of having spent time in remand and being sentenced to ‘time served’.
9.
The ‘no real prospect’ test has generally expanded the chances of getting bail, while
the ‘causing physical or mental injury or fear of it’ test has reduced it through
provisions that clearly target perpetrators of domestic violence. It even extends to
Part 2 of Schedule 1, which applies where defendants are accused or convicted of
non-imprisonable offences.
Nawraz Karbani (with assistance from Angela Rafferty)
Chambers of Michael Hubbard Q.C. and Karim Khalil Q.C.
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