Monday, 18 August 2014

"Real prospect of a custodial sentence" ~ Controversy over remands

Battle has been joined between the Magistrates Association and the Howard League ... allow me to explain.

The Bail Act 1976 determines whether or not a defendant will be granted bail (with or without conditions).  Refusal of bail has to be justified on the basis of one of the grounds set out in the Act.  Unfortunately, this Act has been so extensively amended over the years that it is exceptionally difficult to read.  Perhaps one day, Parliament will see its way to enacting a complete update!

One of the recent amendments relates to the so-called "real prospect" test - that is, whether there is a "real prospect" of the individual receiving a custodial sentence should he be convicted.  I will illustrate this by considering a defendant (James) who is charged with assault occasioning actual bodily harm (section 47 of the Offences against the Person Act 1861).  The alleged offence was not in domestic setting.

James need not be granted bail if the court is satisfied that there are substantial grounds for believing that he would:

a) fail to surrender to custody;
b) commit an offence when on bail;
c) interfere with witnesses or otherwise obstruct the course of justice.

It must also appear to the court, if James is over 18, that there is a real prospect of a custodial sentence if he is found guilty.

In making the bail decision, the court must have regard to criteria such as the nature and seriousness of the offence and the likely means of dealing with it; the character, antecedents, associations and community ties of the defendant; the defendant's record of fulfilling bail conditions; the strength of the evidence of the defendant's having committed the offence and any other criteria which appear to be relevant.

Whether there is a real prospect of a custodial sentence would clearly depend on the alleged prosecution facts being established.  Assuming that they are eventually established, the Sentencing Guidelines indicate whether there is a real prospect of a custodial sentence (see page 210 of the guidelines).  On the basis of those guidelines, bail could only be refused if the offence were to be either Category 1 or at the serious end of Category 2.  Category 3 would not suffice since, at most, a community sentence applies to this category..

The real prospect test was enacted in an effort to reduce the use of remands in custody.  The Howard League has expressed the view that there are still too many remands in custody of defendants who do not ultimately received a custodial sentence - Revealed: the millions spent on needless remands.  The Magistrates' Association takes issue with this - Magistrates Association response to Howard League remand figures

Where a Magistrates Court refuses bail, the defendant may appeal to the Crown Court.  Obviousdly, on such an appeal the defendant could argue that the real prospect test would not apply.

The Prosecution can now appeal to High Court against the decision of a Crown Court Judge to grant bail to a Defendant charged with or convicted of an imprisonable offence.  This provision is not available where the decision of Crown Court Judge was itself made on appeal from a decision of the Magistrates Court.

It MUST be noted that the Bail Act contains exceptions where the real prospect test does NOT apply.   These are not discussed in this post but see the links below.

One Paper Buildings issued a commentary on the changes to bail procedure made by LASPO

See also the summary issued by Number 6 of the LASPO changes 

1 comment:

  1. We should not forget that defendants can also be remanded in custody if they breached bail already granted in the matter. How many of the 71% of offenders who subsequently do not receive a custodial sentence this represents would be an interesting statistic.