Applications to Rescind the Grant of Bail

One of the most difficult decisions the Magistrates' Court has to take is whether or not to grant bail to a defendant accused of a serious offence.

Bail, as we've discussed at length in an earlier article, is the process of releasing a defendant on the understanding that they will return to court at some future time.

Unconditional bail, where the defendant can go about their normal life without restriction, is appropriate in most cases. It is sometimes necessary to impose conditions on bail to mitigate the risk of a defendant somehow transgressing before their next appearance in court. There are also circumstances where the risk of transgression is too great that the defendant cannot be granted bail, so they are remanded in custody instead.

In the case of murder or conspiracy to murder the Magistrates' Court is legally required to remand the defendant in custody pending an appearance at the Crown Court. For other serious indictable only offences - attempted murder, rape, wounding with intent, robbery and the like - the Magistrates' Court can either grant bail or remand the defendant in custody.

Bail is a balancing act. On the one hand you have rights of the defendant - who at this stage has probably not been convicted of the offence with which they are accused - to go about their daily life unhindered; on the other hand you have the rights of the wider public, to go about their's without being somehow hindered by the defendant.

It is a judicial decision, based on legislation and the information available to the court. Occasionally the court has to take some very difficult bail decisions that the prosecution and public at large might not necessarily agree with.

In those situations the prosecution can appeal the court's decision to grant bail, in accordance with section 1 of the Bail (Amendment) Act 1993.

The procedure for appealing a Magistrates' Court's bail decision is:

• At the end of the bail hearing, but before the defendant is released, the prosecutor must give oral notice that the prosecution intends to appeal the decision;
• Once oral notice has been received the defendant must be remanded in custody pending the completion of a written notice of appeal;
• The prosecution has two hours to complete the written notice of appeal, which must be served on the clerk of the Magistrates' Court and defendant personally (unless the court directs that it can be served on their representative);
• If the written notice is not served within two hours, the defendant will be released on bail as previously determined by the Magistrates' Court;
• If the written notice is served within two hours, the defendant will be remanded in custody pending a hearing at the Crown Court. This Crown Court hearing must be within 48 hours of the end of the day on which the Magistrates' Court bail decision was made, not including weekends or public holidays.
• The bail application will be reconsidered by a Judge at the Crown Court. If the appeal is upheld, the Judge will remand the defendant in custody. If the appeal is dismissed, the Judge will grant the defendant bail with any conditions deemed appropriate.

I can understand why such an avenue of appeal is open to the prosecution, but in my view it should only be used in exceptional circumstances - not simply because the prosecutor finds the Magistrates' Court's subjective decision unpalatable.

It rests a bit uneasy with me that the prosecution, which views bail decisions objectively, can appeal in this manner and effectively overrule the court and secure a remand decision by default.