Criminal Process: Bail

Objectives:

• To identify the difference between bail and remand in custody - bail = not in custody, remand = held in custody pending trial
• Explain the police powers to grant bail - Police and Criminal Evidence Act 1984 - P.A.C.E)
• Explain the powers of the court to grant bail - The Bail Act (1976)
• Evaluate the arguments for and against bail

Reasons for Bail	Reasons against Bail
European Convention on Human Rights - innocent until proven guilty It gives the police time to gather evidence/witnesses Bail record Address/details = traceable	Could offend whilst on bail Could interfere with witnesses They could be a flight risk

Bail is the release of a person until the next stage of the case, in line with Article 5 ECHR - right to liberty and in order to uphold the fundamental principle that every person is 'innocent until proven guilty'

A person can be released on bail at any point after being arrested by the police

Bail can be granted by:

• The police:
• Police and Criminal Evidence Act 1984
• Criminal Justice and Public Order Act 1944
• Criminal Justice Act 2003
• The courts
• Bail Act 1976
• Legal Aid, Sentencing and Punishment of Offenders Act 2012

Police Bail:

The police can grant bail in three situations:

• To a suspect released without charge on the condition that they return to the police station on a specific date in the future
• s37 Police and Criminal Evidence Act 1984
• To a defendant who has been charged with an offence until their EAH at the Magistrates' Court
• s38 Police and Criminal Evidence Act 1984
• The custody officer can refuse bail if the suspect's name and address cannot be discovered, or if there is doubt as to whether the name and address given are genuine
• Police can grant street bail for minor offences, without the need to take them to the police station
• s4 Criminal Justice Act 2003

Conditional Bail:

Conditions can be imposed on bail by the police and the courts - Criminal Justice and Public Order Act 1994

Examples of conditions include:

• Curfew
• Electronic tag
• Sureties
• Surrendering passport
• Reporting regularly to the police station
• Residence at a bail hostel

Case Study: R v Hookway (2011)

The Police and Criminal Evidence Act 1984 states that police officers cannot detain a suspect for more than 96 hours before they must release or charge them. The ruling in R v Hookway (2011) means that the clock is 'ticking' regardless of whether the police are actually questioning the suspect or not. Therefore, after 96 hours, officers can no longer question suspects and can only re-arrest them if they have new evidence

However...

The subsequent emergency legislation, the Police (Detention and Bail) Act 2011 reversed the effect of R v Hookway (2011) which means that periods on bail do not count towards the total detention period.

Case Study: 28 day limit on police bail:

The Police and Criminal Justice Bill 2015 has proposed that where a suspect has been released on police bail without charge, that the maximum time they can be on bail is 28 days.

Court Bail:

s4 Bail Act 1976 - there is a presumption that everyone should be granted bail

Bail need not be granted if there are substantial grounds for believing that the defendant, if released, would:

• Fail to surrender to custody
• Commit an offence while on bail
• Interfere with witnesses or otherwise obstruct the course of justice
• Legal Aid, Sentencing and Punishment of Offenders Act 2012 introduced a new exception: commit an offence against an "associated person" in a domestic violence case

Schedule 9 Bail Act 1976 - factors taken into consideration by the courts when making the decision to grant bail

• The nature and seriousness of the offence
• The character, past record, associations and community ties of the defendant
• The defendant's record on surrendering to bail on previous occasions
• The strength of the evidence against them

S90 Legal Aid, Sentencing and Punishment of Offenders Act 2012

"No Real Prospect Test" - The courts' power to refuse bail is restricted where it appears that there is no real prospect that the defendant would receive a custodial sentence if convicted

Restrictions on Bail

Bail can be restricted in the following circumstances:

• Where a suspect has tested positive for Class A drugs and the offence is one connected with Class A drugs:
• s19 Criminal Justice Act 2003
• Where the offence has been committed by someone who is already on bail at the time of the offence
• s14 Criminal Justice Act 2003
• Where a person has previously served a custodial sentence for murder, manslaughter or rape and the current offence is murder, manslaughter or rape, the judge can only grant bail if it is of the opinion that there are no exceptional circumstances
• Legal Aid, Sentencing and Punishment of Offenders Act 2012
• Where the offence is murder, bail may only be granted by a Crown Court Judge:
• s115 Coroners and Justice Act 2009

Advantages and Disadvantages of Bail
Advantages:

• There is a reduction in the number of defendants on remand, which means less cost to the government
• The defendant can maintain employment and spend time with family during his/her bail period
• The defendant can use the time to prepare for his/her trial by not being restricted in terms of being able to meet their legal representatives

Disadvantages:

• There seems to be disparity in the interpretation of the Bail Act 1976 in different courts
• There is a risk that the defendant will interfere with witnesses or otherwise obstruct the course of justice
• 12% of bailed offenders fail to appear at their trial; so there is a risk of them absconding or not surrendering to bail
• There are startling statistics on the number of offences committed by people who are on bail

Criminal Process: Appellate Functions

Objectives:

• Explain the routes of appeal available from the Magistrates' Court
• Explain the routes of appeal available from the Crown Court

Key terminology:

• Case stated appeal - a procedure by which a court or tribunal can ask another court for its opinion on a point of law of general public importance (legal clarification)
• Leapfrog appeal - when an appeal skips one or more court and appeals directly to the Supreme Court (skipping the Court of Appeal) - e.g R(Millar) v The Government (The Prime Minister) - what does prorogation mean?
• Leave to appeal - the permission to appeal against a decision

Appeals from the Magistrates Court:

To the Crown Court by the Defence:

• Made by the defence only 
• Defendant has an automatic right of appeal against conviction or sentence, where the defendant originally pleaded not guilty
• Against conviction - Crown Court judge rehears the whole case with two Magistrates. They can:
• come to the same decision
• reverse the decision
• Against sentence - Crown Court judge can impose a harsher sentence, but only to the maximum sentence available to Magistrates
• Appeal must be made within 21 days of the conclusion of the case

To the Queen's Bench Divisional Court:

• Can be made by the prosecution or defence
• Can be made directly from the Magistrates Court or as an appeal from the Crown Court
• The basis for the appeal is a claim that the Magistrates made an error of law or acted outside their jurisdiction
• Appeal is heard by a panel of 2-3 High Court judges from the Queen's Bench Division
• The Queen's Bench Division Court can:
• reverse or vary the decision
• make an alternative decision
• give the Magistrates their opinion on the area of law involved
• If the appeal is successful, the case will be sent back to the Magistrates for reconsideration

To the Supreme Court

•  A further appeal can be made to the Supreme Court if:
• there is a point of law of general public importance
• leave to appeal is granted by the Queen's Bench Division or the Supreme Court
• Case study: C v DPP (1994)

Appeals from the Crown Court:

To the Court of Appeal (Criminal Division) by the DEFENCE:

• Can be against convictions or sentence
• The defendant must state, verbally, or in writing, that they want to appeal within 14 days of the conclusion of the trial
• The full appeal must be filed with the Court within 28 days of conviction
• The defendant must get the leave to appeal from the trial judge or from the Court of Appeal
• The Criminal Appeal Act 1995 states that the Court of Appeal:
• Shall allow an appeal against conviction if they think that the conviction is unsafe and shall dismiss such an appeal in any other case
• The Court of Appeal can:
• Quash the conviction
• Vary the conviction to a lesser charge
• Decrease the sentence (not increase it)
• Order a retrial in the Crown Court with a new jury

To the Court of Appeal (Criminal Division) by the PROSECUTION

• Can appeal against acquittal where the jury has been 'nobbled':
• The Criminal Procedure and Investigations Act 1996 allows a retrial to be ordered where the jury has been bribed or threatened by the defendant
• There is a further provision under s44 Criminal Justice Act 2003 for a judge only trial where there is a risk of jury tampering or bribery

Quiz:

• What is a case stated appeal?
• a procedure by which a court or tribunal can ask another court for its opinion on a point of law of general public importance (legal clarification)
• From which court and to which court can one make a case stated appeal?
• Magistrates' to the Queen's Bench Divisional Court
  
• Does the defendant need permission to appeal from a Magistrates' Court if they originally pleaded not guilty?
• No, there is an automatic right to appeal
• What can the defendant appeal against if they are found guilty at trial in the Magistrates' Court?
• Conviction and sentence
• When does the defendant need to lodge papers for this appeal?
• 21 days
• How many judges hear an appeal at Crown Court from a Magistrates' Court?
• Three judges
• Who are they?
• 2 Magistrates and a Crown Court Judge
• Who can make an appeal from the Magistrates' Court to the Queen's Bench Divisional Court?
• Prosecution and Defence

Civil Courts: Tribunals

• Tribunals are specialist courts that operate alongside the court system - they handle over a million cases every year
• Tribunals were created after WWII as part of the development of the 'welfare state' to enforce people's social rights
• Tribunals are used instead of going to court, people cannot go to court as well unless they have exhausted the tribunal procedure
• Individuals are encouraged to bring their own case without legal representation
• The case of Peach Grey v Sommers (1995) confirmed that tribunals are inferior to the ordinary courts

The Composition of Tribunals:

• Most tribunals have a legally qualified chairperson and two lay members, who are usually subject experts
• No formal rules of evidence apply but rules of natural justice must be followed

Types of Tribunal:

• Administrative - this type of Tribunal deals with disputes between individuals and the
• Domestic - these are internal Tribunals used for disputes within private bodies, such as the Law Society and the General Medical Council
• Employment - these are the biggest use of Tribunals, and deal with disputes between employees and employers over rights under employment legislation

Tribunals can involve sex discrimination, immigration appeals, disability, employment appeals and more.

History of Tribunals:

• 1957 - Franks Committee recommended that tribunal procedures should be an example of "openness, fairness and impartiality". The recommendations were implemented in the Tribunals and Inquiries Act 1958
• 1958 - Council on Tribunals was set up to supervise and review tribunal procedures. The Council was a body that would deal with complaints and submit recommendations for improvement. However, it was regarded as a "watchdog with no teeth" meaning that it had very little power to make changes
• 2000 - Sir Andrew Leggatt "Tribunals for Users - One System, One Service" - this report marked a radical reform of the Tribunal system, since Leggatt reported that Tribunals lacked independence, coherence and were not user friendly
• 2007 - Tribunals, Courts and Enforcement Act - this was the Act that formalised and implemented most of Leggatt's Reforms and contributed to the most radical shake up of the Tribunal system seen for many years

Leggatt's Criticisms:

• Tribunals not user friendly
• No uniformity of procedure
• Lack of accessibility to the public
• Lack of independence

Tribunals, Courts and Enforcement Act 2007

Recommendation	Details
A Single Tribunal Service to be responsible for the administration of all tribunals	This makes the Tribunal Service independent of its relevant government department The support that the Service gives to Tribunals is unified both in procedure and administration
Tribunals should be organised into divisions grouping together similar tribunals	The Divisions that were created are: Education, Financial, Health and Social Services, Immigration, Land and Valuation, Social Security and Pensions, Transport, Regulatory and Employment Each Division is headed by a Registrar who takes on case management duties in line with the Civil Procedure Rules
The system should be user friendly	Users are encouraged to bring their own cases without legal representation Written judgements should be given in Plain English Information about procedures, venues etc. should be made freely available
Single route of appeal	There is a single route of appeal; with each Division having a corresponding Appeal Tribunal, and only then will there be a redress to the Court of Appeal

• The Administrative Justice and Tribunals Council replaced the Council on Tribunals which had operated since 1957 - its duties include:
• Keeping the workings of tribunals under review
• Reporting on the constitution and working of tribunals
• Considering and reporting on any other matter relating to tribunals
• The whole system is headed by the Senior President of Tribunals who is responsible for assigning judges to chambers
• Tribunal judges are appointed by the Judicial Appointments Commission
• The Tribunal Service was merged with HM Court Service to become HM Courts and Tribunal Service in 2010

Evaluation:

• Advantages:
• Cost - parties are encouraged to take their own cases without the need for representation. This has been made even easier with the availability of application forms online and a more transparent Tribunal Service since the reforms
• Expertise - at least one member of the Tribunal will be an expert in the relevant field, so this will save time explaining complex technicalities to a judge in coury
• Speed - There is a duty on the Tribunal Judges to take on case management duties, so they are able to impose strict timetables to ensure that most cases can be heard within one day
• Informality - Tribunals are much less formal than a court hearing, though they are more formal than other methods of ADR. The parties benefit from a private hearing and have the chance to maintain a relationship after the case is over
• Independence - Because of the involvement of the Judicial Appointments Commission in appointing Tribunal Judges, the Tribunal system is much more transparent, independent and thus fair. Further, the unified set of procedures and rules minimises the risk of inconsistencies between tribunals
• Disadvantages:
• Lack of funding - Legal Funding is available for some disputes, for example, if you are a member of a union, you may get your case paid for by them, but it is not always available, which can be detrimental to a person taking on a big company who has the benefit of the most expensive representation
• Delay - If the case is one of a complex nature, then there can be a delay in getting the case heard
• Intimidated parties - There is still the problem of parties feeling intimidated and daunted at the prospect of taking a case to "court", particularly without the comfort of having a legal representative
• Lack of precedent - Tribunals do not operate a strict system of precedent, so there is sometimes an element of unpredictability to the outcomes of cases

Structure of Tribunals

Civil Courts: Civil Appeals

The Civil justice system is used to settle disputes between private individuals or organisations. The person bringing the action is called the claimant and the person defending the action is called the defendant. The case has to be proved on the balance of probabilities (the standard of proof [50% or better chance of winning the case]) and the burden to prove the case is on the claimant. The claimant is normally seeking some form of remedy which could be the payment of compensation or an injunction

The remedy could be:

• Damages - General including physical injuries and Special involving the replacement of belongings
• Injunctions - an order of court that prevents/stops someone from doing something (e.g a restraining order in the context of criminal law)

Criminal	Civil
Guilty	Liable
Beyond Reasonable Doubt	On Balance of Probability
Victim	Claimant
Defendant	Defendant
Punishment	Damages
Magistrates Court/Crown Court	County/Magistrates/Tribunals

The Hierarchy of the Civil Courts

Civil Court Appeals:

Appeal from County Court or High Court to Court of Appeal

These appeals require leave (permission) from the lower court or the Court of Appeal

Permission to appeal will only be given where:

• The court considers that the appeal would have a real prospect of success (50% or better)
• There is some other compelling reason why the appeal should be heard (fairness or legal point)

The Court of Appeal will allow an appeal where the decision of the lower court was:

• Wrong, or per incuriam
• Unjust because of a serious procedural or other irregularity in the proceedings of the lower court - e.g a procedural mistake in CPR interpretation

The Court of Appeal will have the powers of the lower court in relation to an appeal - e.g if an appeal is made from the Divisional Court to the Court of Appeal, the Court of Appeal can award a remedy that the Divisional Court would have made

Appealing from different courts:

Appeal from the Court of Appeal to the Supreme Court:

• This appeal is only allowed where the Court of Appeal or Supreme Court grants leave to appeal.

Appeal from the High Court to the Supreme Court:

This is a 'leapfrog' appeal direct from the High Court, provided:

• All parties consent, and 
• A point of law of general public importance is involved relating to the construction of legislation or on a point on which the trial judge was bound by precedent
• A certificate of the trial judge and leave from the Supreme Court is required

Appeal from Small Claims Court (Tribunals etc) to the County Court:

This appeal can be made if there's a serious irregularity in the proceedings, or the District Judge at the Small Claims Court made a mistake of law

High Court Structure:

	Head of Division	Types of cases heard	When is a jury used?
Queen's Bench Division	President	Criminal, Judicial Review	Libel/defamation
Chancery Division	Chancellor of the High Court	Property, trust, business	Very rarely
Family Division	President	Divorce, financial, wordship	Never

The jury decides the liability and quantum (are they guilty and how much do they have to pay)

How did Woolf change things?

1. Access to Justice - A report written by Lord Woolf - access to justice is about making it easier for the average person to access the courts
2. Appropriateness of Procedures - the track system helps to make each procedure appropriate for the particular case 
3. Proportionality - both sides having equal legal representation
4. Speed and Efficiency - Pre Action protocols to make court quicker and easier
5. Cost - introducing other methods to help people avoid the expense of court (ADR etc)
6. Certainty - judicial case management/precedent
7. Effectiveness, adequate resources and organisation - agreement on witnesses/evidence and single joint expert (part 35) and part 36 offer
8. Simplifying the language - making the court process easier to understand by replacing some legal jargon with simple English (e.g plaintiff became claimant)
9. Use of ADR - people tend to be more cooperative outside of court, it lowers the expense, saves time and is a good alternative to court (which also frees up the court for more pressing matters)
10. Active case management by judges - more inquisitorial and less daunting as well as more organised

Did he change things for the better or for the worse?

Better?	Worse?
Fairer system overall Track system makes things easier and allows people to settle cases on their own - small claims - lawyers not compulsory Single joint experts have worked Part 36 offers to settle have worked Adverse costs penalties do work to encourage people to settle	Case management tends to increase costs New rules encourage inconsistent decision making No real impact on saving time Pre action protocols are not mandatory

Civil Courts: The Civil Procedure Rules 1998

Simplification of procedures:

	Small Claims	Fast Track	Multi Track
Value	Up to £10,000	Up to £25,000	Over £25,000
Personal Injury Claims	Up to £1,000	£1,000 - £15,000	Over £15,000
Court	District Judge - County Court	Circuit Judge - County Court	County Court or High Court
Legal Representation	Not Recommended	Optional	Recommended

The simplification of procedures includes:

• Simplification of language - for example plaintiff became claimant, writ became claim form and a minor became a child. This is because claimants are encouraged to bring their case without legal representation
• Simpler forms - the N1 claim form is now the standard form used for all claims and is easily accessible online. It also passed the Plain English Campaign for simplicity and accessibility for claimants not familiar with legal jargon

Judicial Case Management:

• Active Case Management
• Judges are now known as "case managers", which means they adopts a much more "hands on" approach to the case and are responsible for much more than just deciding the outcome of the case, for example:
• Encouraging the parties to cooperate with each other
• Identifying issues at an early stage
• Encouraging the parties to use methods of alternative dispute resolution
• Helping the parties to settle
• Fixing timetables and controlling the progress of the case
• Making use of technology
• This encourages a much more inquisitorial system and should make the system a lot less daunting and intimidating for claimants as well as reducing the need for legal representation
• Limitations on Evidence

Expert evidence is being reduced significantly because it is expensive and it often contributes to delay. In most cases, the court will encourage a single joint expert to act for both sides. This is set out in Part 35 CPR

Encouragement to settle:

• Where possible, the courts will encourage people to settle at any time before the case gets to court, because often the costs will outweigh the compensation. 
• Part 36 CPR offers are designed to settle disputes without going to court. Both sides can make a Part 36 offer and if accepted by the other side, the claimant is entitled to their costs up to that date. If the offer is refused and the refusing party is subsequently awarded less by the court, sanctions (penalties) can be made by the court against them. This means that any Part 36 offer must be considered carefully

Pre Action Protocols:

• Protocol - guidelines that are not compulsory, but you are expected to follow by the court
• Pre Action protocols aim to get parties to settle outside of court, thus reducing costs and delay
• Each category of case has its own set of Pre Action Protocols. Each category of case has its own protocol that has to be followed; for example, personal injury, clinical negligence, defamation etc. Both clinical disputes and personal injury pre-action protocols recommend:
• Detailed letters of claim
• That the reply should be issued within 21 days of the date of posting (sometimes 7)
• Within three months, both sides should organise full disclosure of key documents
• An agreement on the number of expert witnesses (Part 35 CPR)
• Use of alternative dispute resolution
• Agree single joint expert
• These are the documents that have to be disclosed in a Personal Injury Claim (Annexe C)
• The point of protocol
• Preparation for the trial
• Attempts to settle
• Keep costs down

Encouragement of ADR:

• One of the ways that judges can actively manage cases fulfil their obligation under the Part 1 overriding objective is by encouraging parties to use ADR when this is appropriate
• Parties can postpone proceedings for one month to attempt to settle the case using ADR. Courts should also actively promote its use. However, in Halsey v Milton Keynes General NHS Trust (2004), the Court of Appeal said the courts cannot force parties to ADR as it might be against Article 6 of the European Convention on Human Rights - the right to a fair trial
• However, in the previous case of Dunnett v Railtrack (2002), the judge had ruled that an adverse costs order could be made against a successful party if that party refused to mediate
• The benefits of this are that there is a likelihood that the parties will maintain a working relationship and save themselves the expense of court costs, which can often outweigh the compensation. Forms of alternative dispute resolution include:
• Negotiation
• Mediation
• Arbitration
• Conciliation
• Tribunals

Key Terminology:

• Overriding Objective - the overriding objective of the Civil Procedure Rules is to enable the court to deal with cases 'justly' - Courts must seek to further this objective by managing cases 'actively'
• Alternative Dispute Resolution - alternative methods to court (negotiation, mediation, arbitration, conciliation, tribunals)
• Judicial case management - 
• 3 track system
• Single Joint Expert
• Simplification of Procedures
• N1 claim form
• Pre-action Protocols
• Aims of Woolf Reforms
• Litigation
• Allocation Questionnaires
• Adversarial
• Part 36 Offer to Settle
• LEARN THESE TERMS AND WRITE THE DEFINITIONS ABOVE

Analysis of Reforms

There are two key reports which have provided an analysis of the Woolf Reforms:

'Zander on Woolf' by Michael Zander , New Law Journal 13th March 2009

'A Few Home Truths' by Tony Allen, New Law Journal 3rd April 2009

Civil Courts: Civil Process

The Civil Procedure Act 1997 was passed to implement the Woolf Report and in April 1999, the new Civil Procedure Rules came into effect

These reforms were made on the basis of four major criticisms made by Lord Woolf of the old civil justice system:

• cost
• delay
• complexity
• too adversarial

Lord Woolf's philosophy was that the adversarial process is not suitable for civil law

Litigation should be a last resort and we must promote cooperation and settlement in an inquisitorial way

Lord Woolf's goal was a fundamental change of culture. He stated that a civil justice system should:

• be just in the results it delivers
• be fair in the way that it treats litigants
• deal with cases at a reasonable speed
• be understandable to those who use it
• be effective, adequately resourced and organised
• offer appropriate procedures at a reasonable cost

The Civil Procedure Rules 1998

Part one of the CPR emphasises their main purpose as having an overriding objective of enabling the court to deal with cases 'justly'. Courts must seek to further this objective by managing cases 'actively'

How was this achieved?:

Lord Woolf's reforms can be split into four broad areas:

• Simplification of procedures
• Judicial case management
• Pre action protocols
• Encouragement of ADR