Leading solicitor who secures bail for clients in criminal proceedings

The Secretary of State for the Home Department had power to place a person on immigration bail under the Immigration Act 2016 Sch.10 Pt 1 para.1(2) in circumstances where it would be unlawful to detain them. The concept of immigration bail had not been introduced by Parliament to effect any radical change, but had been intended, at least in part, to include cases where previously there had been temporary admission or a restriction order.

The court allowed the United States' appeal against the grant of bail to a 21 year old man who was wanted to stand trial in the USA for offences related to wire fraud aiding and abetting, conspiracy to commit money laundering and aggravated identity theft involving the theft of cryptocurrency valued at over $50 million. The presumption of bail for a person who had not been convicted was displaced by the seriousness of the offences and the likely length of a sentence, and because the alleged conduct involved a high level of sophistication and access to both cryptocurrency and international criminal contacts that could provide the means to abscond even without a passport.

The court gave guidance on the procedural requirements for an application for a "No Bill" entry under the Grand Jury (Abolition) Act (Northern Ireland) 1969 s.2(3). It outlined the principles relevant to the lawful exercise of judicial discretion at the second stage of the s.2(3) process, and gave illustrations of the kinds of cases in which a judge might exercise their discretion to permit a prosecution to continue.

The continued detention of a person held on suspicion of having committed an offence was in principle capable of being justified under ECHR art.5(1)(c) and (3) on the basis that it was necessary for his own protection. Accordingly, the Police and Criminal Evidence Act 1984 s.38(1)(b)(ii) was not incompatible with art.5.

A Practice Direction was issued amending Practice Direction (CA (Crim Div): Criminal Proceedings: General Matters) [2015] EWCA Crim 1567. New sections were inserted or amendments were made to paragraphs concerning: failure to comply with the requirement to give name, date of birth and nationality; hearings to inform the court of sensitive material; first court attendance after charge and detention; penalties for failure to surrender; and listing of hearings other than trials. The amendments came into force on 13 May 2020.

There were clear and demonstrable grounds to believe that an individual whose extradition had been sought by the United States for allegedly kidnapping his daughter during a custody visit and threatening and harassing his ex-partner would fail to surrender to bail. His claims that as an asthmatic the prison conditions where he was being held were inadequate in view of the corona virus pandemic were rejected. The prison service owed him a duty of care in accordance with existing guidance and he could take up those issues with the prison authorities.

The applicant, who was appealing against his sentence after being committed to prison for contempt of court for 21 months, had not made out his case, which was based partly on alleged threats from other prisoners, for the grant of bail.

When the court was considering whether to revoke bail for an alleged breach of bail conditions, it should evaluate all the material in the light of the serious potential consequences to the defendant in the context of the presumption of innocence and form an honest and rational opinion on the balance of probabilities.

The court revoked the grant of bail to a 26-year old man who had been charged with murdering his grandfather on the basis that it was impossible to say that there was no significant risk of him committing, whilst on bail, an offence likely to cause physical or mental injury to another person.

A 78-year-old man whose extradition to the Falkland Islands was sought in order to prosecute him for 12 alleged historic sexual abuse offences from the mid-1980s was bailed. The unusual features of the case, including the individual's ill-health and his caring responsibilities, and the fact that he had not offended since completing a sex offenders' treatment programme in 2002, meant that the risks of him absconding or committing further offences were minimal.

The court refused to grant bail to a Romanian national pending the determination of her extradition proceedings; she did not have sufficient community ties in the UK and there were substantial grounds to believe that she would fail to surrender.

The court allowed Romania's appeal against the grant of bail to a requested person who had been convicted and sentenced to seven years' imprisonment for sexual offences against an 11-year-old girl whilst working as her dance teacher. The court was satisfied that there were substantial grounds to believe that the requested person would fail to surrender at the extradition hearing.

It was not appropriate for the court to adjust a sentence to make allowance for a period of time which an offender had spent on remand in relation to a European arrest warrant which was subsequently withdrawn, when he would otherwise have been on qualifying bail in relation to the offence for which he was sentenced. Although the court had a residual power to adjust a sentence in order to correct an injustice, the case did not meet the test of exceptionality and there had been no conspicuous injustice.

A decision ordering the forfeiture in full of bail security money which a claimant had deposited as security for the release of her son-in-law, where he had since absconded, was procedurally unfair. The judge had failed to invite the claimant to address any possible distinction in the treatment of sureties and securities when an individual absconded. Furthermore, he had relied upon first instance decisions that were never made available to her.

As a Crown Court decision to remand a defendant in custody pending a sentence hearing was a matter relating to trial on indictment, the High Court's jurisdiction to consider an application for permission to apply for judicial review of the decision was excluded by the Senior Courts Act 1981 s.29(3).

A bail application pending extradition to France pursuant to a European arrest warrant to face charges for offences of being the head of a criminal gang that had been trafficking migrants in France was refused. Although the court accepted that the presumption was in favour of bail and that the seriousness of the offences was not a sufficient reason to refuse bail, the combination of factors in the circumstances lead to the conclusion that bail ought to be refused.

The court criticised counsel for failing to take advantage of the slip rule provisions in the Powers of Criminal Courts (Sentencing) Act 2000 s.155. The instant appeal was heard within the 56-day period within which the slip rule could have been invoked and, whilst the need for an appeal might not have been obviated, the sentencing judge would have had the chance to reconsider the appropriate sentence.

Where a prisoner's licence had been revoked and he had been recalled to prison, it would not be appropriate to hear an application for bail. Instead, the Parole Commissioners should be left to consider whether the prisoner should be re-released.

A sentence of four months' imprisonment was appropriate in the case of an offender who had pleaded guilty to failing to answer bail and being at large for a day. The offender had a history of failing to surrender to custody, and the instant failure was a deliberate act of defiance in contumelious disobedience of a court order.

A Turkish national was refused bail pending his extradition to face charges of conspiracy to import a substantial amount of Class A drugs from Turkey to the UK.

Two individuals accused of attempting to escape the UK to join a terrorist group or commit acts of terrorism were refused bail and remanded in custody to await trial. The nature of the alleged offences meant that there was a clear risk of reoffending and of failure to surrender at trial.

A district judge who had discharged a requested person on the ground that his extradition would be disproportionate had been mistaken in approaching the likely sentence in the requesting state by assuming that the time he had spent on a qualifying and monitored curfew, were the Criminal Justice Act 2003 s.240A to have applied, should be credited against any custodial sentence eventually passed.

Properly construed, the Judicature (Northern Ireland) Act 1978 s.41 gave a person a right of appeal to the Supreme Court against a decision of the High Court exercising its inherent jurisdiction to grant or refuse bail.

A conviction for failing to surrender to bail by non-attendance at a trial was quashed because the defendant had not been informed that he had a defence if he could show a reasonable cause for the failure to surrender. He had informed his solicitors of his change of address but they had failed to contact him at his new address to inform him of the trial date.

A decision not to grant bail to a 17-year-old with no previous convictions, following his charge for grievous bodily harm, was Wednesbury unreasonable as the judge had relied on speculative and highly improbable matters that had been neither raised by the prosecution nor put to the defence.

The Supreme Court determined that the Northern Ireland High Court had an inherent jurisdiction to grant bail provided certain conditions were met.

A district judge had been wrong to grant conditional bail to a fugitive offender whose extradition was sought by the Italian government so that he could serve a seven-year sentence for an offence of being involved with the Mafia. The offender was a resourceful man who had lived undetected in the United Kingdom for a number of years and presented a flight risk.

A Crown Court judge had erred in treating a recall to prison as a material factor leading to the withdrawal of bail.

An eight-month detention and training order imposed on a young offender following his guilty plea to an offence of domestic burglary was fully justified subject to one point: the judge had failed to take account of an 86-day period the offender had spent on bail under an electronic curfew, pursuant to the Criminal Justice Act 2003 s.240A. The sentence was accordingly set aside and replaced by a six-month detention and training order.

Pre- and post-trial decisions in the Crown Court concerning bail were amenable to challenge by judicial review. However, decisions concerning bail during a criminal trial could not be challenged by judicial review as such decisions fell within the prohibition in the Senior Courts Act 1981 s.29(3).

The Court of Appeal Criminal Division gave guidance on the operation of the provisions of the Criminal Justice Act 2003 s.240A, as amended, for calculating the number of days spent on bail subject to qualifying curfew and electronic monitoring conditions which counted as time served by an offender as part of the sentence.

A sentence of 12-months' imprisonment for failure to surrender to bail without reasonable excuse was not manifestly excessive. The case was an extreme one of its kind: the offender had been at large for 13 years, had disrupted the administration of justice and undermined the course of justice, all of which were aggravating features justifying a sentence outside of the range laid down in the sentencing guidelines.

The Special Immigration Appeals Commission had jurisdiction to determine the question of the lawfulness of immigration detention pending deportation. The power to determine that question was implicit in the statutory power to grant or refuse bail. If that was wrong, the commission was undoubtedly entitled to consider the issue when deciding whether or not to grant bail.

A Polish national's application to the High Court for bail in respect of extradition proceedings was misconceived, as there was explicit provision in the Extradition Act 2003 for the granting of bail and reconsideration of refusals to grant bail at all stages of the extradition process. Recourse to the High Court should be a measure of last resort and was plainly unnecessary in circumstances where another court had jurisdiction.

A decision refusing to grant bail to a defendant who had been charged with murder was quashed where a judge had failed to give adequate reasons for his decision and refer to the correct legal test.

A judge had been justified in imposing an 18-month detention and training order on an offender who had pleaded guilty to possessing heroin and cocaine with intent to supply. She had taken a two-year starting point and had taken into account eight months spent by the offender on bail subject to an electronically monitored curfew.

A police bail condition that a woman should not continue to reside at her own home, imposed following her arrest on suspicion of the racially aggravated harassment of her next-door neighbours, was disproportionate where she had not been charged with any offence and the bail conditions would remain for several months, there was no allegation of violence or criminal damage and it was a very serious matter to exclude someone from their own home.

A judge's decision to withdraw bail was quashed where he had given no reasons for his decision and had not given the defendant an opportunity to persuade him not to withdraw bail. In the circumstances it was appropriate for the court to take the exceptional step not to remit the question of bail and to substitute its own decision for that of the trial judge.

An extension of time granted under a warrant for further detention of a suspect which was issued to run "from the time of issue of the warrant" was not suspended during the suspect's release on bail.

A district judge had not erred in granting conditional bail to an individual facing extradition to Belgium for sentencing for drugs offences. The judge had been sufficiently concerned by the danger of absconding to impose a security way above that suggested by the offender.

A defendant's convictions were unsafe where, shortly before he gave his evidence, the trial judge had addressed him about allegations of contempt of court in an inappropriate manner and tone and had informed him that his bail was to be revoked without allowing him to make representations. It was not possible to safely exclude the possibility that he might not have given his evidence as credibly as he would have done if the judge had dealt with the matter appropriately.

The court quashed an extradited person's conviction under the Bail Act 1976 s.6 where the offence in question was not one for which he had been extradited.

It was appropriate to grant an individual facing extradition conditional bail where there were no substantial grounds for believing that he would abscond because he faced extradition and it was apparent that he had an incentive to clear his name.

The words "non-compliance with the lawful order of a court" in the European Convention on Human Rights 1950 art.5(1)(b) referred to breach of an obligation or prohibition imposed by a lawful order of a court. A failure or refusal to comply with bail conditions in civil proceedings was not non-compliance with an order of the court for the purposes of that article.

On the facts and evidence, a district judge had been correct to find that there were no substantial grounds for believing that an individual who was awaiting extradition to the requesting state to face a charge of conspiracy to murder would fail to attend hearings. The conditions attaching to the grant of bail were sufficient to procure attendance at hearings as and when necessary.

The Crown Court had jurisdiction to hear the bail application of a defendant where the Court of Appeal had quashed his convictions, and had directed a retrial and that any bail application be made to the Crown Court, even though no specific Crown Court had been allocated to hear the retrial at the time the bail application was made.

The decision of an appellant court to refuse to grant bail to the subject of an extradition request was a decision that was not, as a matter of general principle, reviewable by a court of first instance subsequently apprised of a further application for bail.

The court considered the powers of the court to reduce a sentence where there had been a failure to give credit for time spent on qualifying curfew under the Criminal Justice Act 2003 s.240A.

A special advocate ought to have been appointed where an application for bail was considered partly on the basis of closed material.

The factual material described by the Special Immigration Appeals Commission in its decision to revoke the appellant's bail pending his deportation reflected what it had said in earlier related proceedings, was based entirely on open material and, on any reasonable analysis, amply justified its decision. It was clear that the decision was unaffected by closed material adduced at an earlier hearing.

The former president of Bosnia, who had been arrested and detained following a request from Serbia for his extradition to face allegations that he had acted in breach of international humanitarian law, was granted bail subject to stringent conditions.

The Court of Appeal urged Parliament to consider changing the law so that the appropriate credit was to be given to an offender who had been on bail subject to qualifying curfew conditions unless the sentencing judge directed otherwise. Directions were given as to the approach to be taken in the meantime by courts imposing curfews, sentencing judges, legal advisers, and by the appellate court.

The detention for breach of bail of an individual pending an appeal against her conviction for theft was not unlawful despite the fact that there had been procedural lapses involved in the issuing of the arrest warrant. The sentence subsequently imposed had not been unlawful despite the sentencing court being improperly constituted.

An indication by the CPS that it would not oppose the grant of bail to a defendant did not give rise to any legitimate expectation that bail would be granted, as bail was a matter for the court, not the CPS.

Under the Criminal Justice Act 2003 s.240A, where an offender had spent time on bail subject to a curfew of nine hours or more in any given day coupled with an electronic monitoring condition, he was generally entitled to an order to the effect that half the number of days spent on bail subject to those conditions should count as time served by the prisoner as part of his sentence. However, in passing sentence a trial judge should take no account of an electronically monitored curfew that fell short of those qualifying conditions.

In terms of any entitlement to credit for time spent on bail, the position of an offender on bail and subject to a curfew was not analogous to that of an offender on bail, subject to a curfew and electronically tagged within the meaning of the Criminal Justice Act 2003 s.240A. In sentencing an offender in the former category a judge was entitled to refuse to give credit for time spent on bail subject to a curfew.

In deciding to vary bail conditions, a magistrates' court had been entitled to rely on a police officer's evidence whilst allowing him to withhold specific information.

The court expressed some doubt about the correctness of the decision in R. (on the application of Culley) v Dorchester Crown Court [2007] EWHC 109 (Admin), (2007) 171 J.P. 373, in which it was held that a decision as to whether a defendant had breached his bail had to be reached by a justice within 24 hours of the arrest: the statutory requirement was that the defendant merely had to be brought before a justice as soon as practicable and in any event within 24 hours after his arrest.

A judge had applied the wrong test when refusing to grant pre-sentence bail. It was not a question of whether the judge was sure that the offender would turn up or stay out of trouble but whether there were substantial grounds for believing that he would abscond or commit further offences.

A magistrates' court was entitled to rely on written hearsay evidence in deciding whether an individual had breached his bail conditions, and it had properly evaluated that evidence in making its decision.

A conviction for failing to answer to bail was quashed, as the offender had been surrendered to the United Kingdom on a European arrest warrant that had not included the offence of failing to surrender to bail, and the wording of the Extradition Act 2003 s.146(3)(b) did not extend to the inclusion of that offence without specific mention.

A decision to withdraw bail granted four months before to a defendant awaiting trial for possession of a Class A drug with intent to supply was quashed where he had complied with his bail conditions and surrendered when required, and the judge had given no good reason establishing one of the statutory grounds for refusing bail.

A sentence of 12 weeks' imprisonment imposed for breach of bail was appropriate when the accused had left the country and failed to surrender for over two years. The fact that he was acquitted of the primary offence did not automatically reduce the seriousness of his conduct.

The power contained in the Terrorism Act 2000 s.41 to detain without warrant was not incompatible with the European Convention on Human Rights 1950 art.5. The terrorism legislation did contain the necessary protection of the individual, without there being a question of power to release on bail. The protection of the individual lay in the judicial control over whether there should be further detention.

A defendant who failed to appear in court in response to a summons ought not to be convicted of an offence under the Bail Act 1974 and nor was he in contempt of court if he was neither on bail nor had received notice of the summons.

A Crown Court was entitled to exercise its powers under the Courts Act 2003 s.66 so as to constitute itself as a magistrates' court in order to determine whether an individual unlawfully detained overnight ought to be granted bail.

In the circumstances, the offender's voluntary absence from her trial was not absence of such a proportion so as to deprive her of the opportunity to fully participate in the trial. Accordingly, the offender's conviction for conspiracy to facilitate the commission of a breach of United Kingdom immigration law was safe.

It was both possible and lawful for a recognisance in Crown Court proceedings to be expressed as continuous until the conclusion of proceedings in the Crown Court. An order varying the conditions of bail, unconnected with the sureties in question, did not give rise to the need for sureties to be taken afresh.

Consideration should be given by those in the Crown Court hearing appeals against the grant of bail to the application of the Magistrates' Courts Act 1980 s.128A when remanding defendants.

The claimant's claim that the police had unlawfully detained him for three hours in a police station was dismissed, as a custody officer was entitled to detain a suspect for a reasonable period whilst seeking advice from the Crown Prosecution Service on the appropriate charge.

The Criminal Justice and Public Order Act 1994 s.25 was compatible with the European Convention on Human Rights 1950 Art.5(3).

There was a fundamental presumption in favour of open justice, such that if an accused applied for his bail application to be heard in public that application should be acceded to unless there was a sound reason for excluding the public.

Given that removal directions had been issued in respect of the applicant, an immigration officer had been entitled to serve a notice on him bringing forward the "appearance date" specified by the Asylum and Immigration Tribunal when making an order for his temporary release on bail.

Although the Criminal Justice Act 2003 s.240 contained no explicit requirement that a judge, who was considering departing from the usual practice of making a direction under s.240(3) that time spent on remand would count towards the sentence, had to state that intention in advance, it was good practice to inform defence counsel to give them the opportunity of addressing the court on that issue.

When considering the principles that should guide the courts of Mauritius in exercising their discretion to grant or withhold bail, the court determined that the intent of the Bail Act 1999 (Mauritius) and the rationale of the Act as expounded in Maloupe v District Magistrate of Grand Port (2000) MR 264 was for magistrates to take a broad approach, rather than to view in isolation the factors specified in s.4(2) of the Act.

A claim for judicial review of a refusal of bail for a defendant facing trial in the Crown Court could be made to the High Court at any stage before the defendant's trial.

The Court of Appeal of the Bahamas had no jurisdiction to interfere with the grant of bail by the Supreme Court under any Acts of Parliament or under the Constitution of the Bahamas.

In extradition proceedings expert evidence was necessary for determining whether or not there was a reversal of the legal burden of proof in certain Australian criminal legislation that was likely to lead to a flagrant breach of the right of a detainee to a fair trial in Australia contrary to the Extradition Act 2003 s.87 .

A district judge was not disqualified under the Magistrates Court Act 1980, s.42 from trying an accused in respect of a violent offence where there was no evidence that a previous conviction had been aired in the context of a hearing to determine whether or not a warrant backed for bail should be issued.

The ordinary consequence of a failure to surrender to bail was a custodial sentence. Therefore, a defendant was entitled to a representation order.

This case is reported at Times, March 15, 2004. A full Lawtel Case Report will be published shortly and the official transcript may be ordered from Transcripts Express on 020 7025 2775.

In all the circumstances a sentence of nine months' imprisonment for failing to surrender to bail was manifestly excessive, whilst the defendant blatantly lied about his failure to surrender to gain the judge's sympathy it was not an attempt to escape the jurisdiction.

In all the circumstances the total sentence of five years imprisonment was unduly lenient and a sentence of 12 years would be substituted made up of eight years imprisonment with an extended period of four years.

The defendant's sentence of three years and four months' imprisonment for nine offences of burglary of dwelling houses, and two offences of violence was not excessive.

Where a person had breached bail conditions by travelling abroad but had returned for his trial the judge had no power to deal with him by way of contempt of court.

Where a defendant breached bail by failing to appear in court it was incumbent on the judge to decide if the offence under s.6(1) Bail Act 1976 had been committed by seeking to ascertain whether there was "reasonable cause" for the breach, it was also questionable whether it was appropriate to impose a sentence of only two days' imprisonment.

A sentence of four and half years for robbery would be quashed and a sentence of three years nine months substituted, as, despite the fact further offences were committed whilst the first defendant was on bail, a sentence that fell within the short sentence band was appropriate. A sentence of two years was appropriate for the second defendant even though he was of low intelligence.

The requirement for a court to be satisfied that "exceptional circumstances" existed before granting bail to an alleged offender, to whom s.25 Criminal Justice and Public Order Act 1994 applied, did not violate the right to liberty enshrined in Art.5(3) European Convention on Human Rights.

Case relating to the assessor's approach in assessing compensation under s.133 of the Criminal Justice Act 1988. An assessor was to apply relevant common law principles wherever they were clear and analogous. Analogous meaning 'similar or corresponding in some respect'

Where a defendant surrendered to bail he was in lawful custody and under the court's control there was no need for any direct physical control by another.

A police officer had acted within the execution of his duty when using reasonable force to remove the appellant's mother from a custody suite to ensure the operational effectiveness of the police station.

Breach of the peace was not an offence for the purposes of the Police and Criminal Evidence Act 1984.

There was no rule of statute or practice that prevented a judge from ordering a separate preparatory hearing in respect of one defendant jointly charged with other defendants in the same indictment if he considered that it was in the interests of justice to do so.

The Crown Court had exceeded its jurisdiction by refusing to hear an appeal against conviction on the basis of non-attendance by the appellant where counsel was present, and was obliged in those circumstances to hear any such appeal even where there was a legal duty on the appellant to attend.

A delay of three minutes in serving a written notice of appeal against a grant of bail on the defendant in criminal proceedings was not fatal and s.1(7) Bail (Amendment) Act 1993 did not apply.

Where an accused in criminal proceedings was remanded on bail subject to a curfew condition, the court could impose a further condition requiring the defendant to present himself at the door of his home during the hours of the curfew when required to do so by a police officer.

Where magistrates' courts proceedings were not continuing other than for the purpose of bringing about the return of a fugitive offender, the only provision under which the forfeiture of a recognisance could be ordered was that contained in s.120(1)(b) Magistrates' Court Act 1980.

Although a third party could lodge security for a defendant's release, the security was given to the court by the defendant himself,with the result that the court was not obliged to notify the third party of the forfeiture of the security.

A sentence of three years' imprisonment for an attempted robbery imposed consecutively to a previous sentence, which rendered the appellant a long-term prisoner, took account of totality and was not too long.

Magistrates had the power under s.7(4) Bail Act 1976 to stand an application out of their list after being seised of it and having made a preliminary ruling, with the effect that a different magistrate or magistrates would embark on the hearing afresh and determine it on the same day. * Leave to appeal to the House of Lords refused.

Bail Act considerations could not properly be taken into account as a factor capable of giving rise to a good and reasonable cause for extending custody time limits.

A sentence of six years two months' imprisonment for three offences of burglary and one offence of failure to answer bail, although severe, was not manifestly excessive or wrong in principle.

To be considered as serving a sentence for the purpose of determining a release date under s.33 Criminal Justice Act 1991 a prisoner had to be under the control of the prison authorities or on licence; time spent on bail did not count.

Magistrates faced with a defendant who had breached a bail condition imposed by a Crown Court should remand him in custody and commit him to the Crown Court until his trial or further order.

In a successful appeal by the Secretary of State for the Home Department against a dismissal of an application for summary judgment against a claimant who sought damages for false imprisonment, it was held that the time spent by the claimant on bail in court custody, while the court was not sitting, did not count towards his sentence.

The Crown Court had the jurisdiction to hear a prosecutor's appeal against the grant of bail to the applicant, notwithstanding that the hearing of the appeal had not commenced within the 48-hour period prescribed by s.1(8) Bail (Amendment) Act 1993.

In an appeal against a total sentence of five years' imprisonment for offences of theft, breach of bail and burglary, whilst the individual sentences for each offence were not, in themselves, manifestly excessive the totality of the sentence was and would accordingly be substituted with a term of four years' imprisonment.

Successful appeal against sentence because credit was not given for the appellant's 11 months' spent inside a bail hostel. The appellant's sentence of two years' imprisonment for each of two counts of causing a public nuisance was reduced to two terms of 18 months.

A solicitor's mistake as to the date of a remand could, depending on the circumstances, provide a defendant with a reasonable excuse for his failure to surrender to bail.