Imprisonment

Bail

[Please note that this article refers to post-charge bail provision for adults. The law for youths is different]. 

Do I have a right to bail?

The starting point is that you have a “right” to be granted bail (section 4 Bail Act 1976). This right can only be taken away in certain circumstances. These circumstances being that the court has substantial grounds to believe that if you were granted bail you would:

·         Fail to surrender;

·         Commit further offences on bail; or

·         Interfere with witnesses

In rare instances bail can be denied for your own protection/welfare.

What if I am already on bail?

If you are charged with an offence alleged to have been committed whilst on bail, then you do not have this automatic right to bail. In that case you do not have to be granted bail, but you can still be if you persuade the Court that you will not fail to surrender, commit further offences or interfere with witnesses. If you appear in court following a failure to surrender at an earlier hearing you also lose the automatic right to bail.

Does it matter if I am a drug user?

If you have tested positive for class A drugs, and refuse to co-operate with treatment, you may not be granted bail unless the court is satisfied that there is no significant risk of an offence being committed whilst on bail.

Will I have conditions on my bail?

The Court can grant bail unconditionally or they can impose bail conditions if they are satisfied that those conditions are necessary to address any risk that you would fail to surrender, commit further offences or interfere with witnesses.

Any conditions imposed have to be both necessary and proportionate. Examples of conditions are curfew, residence, not to contact named witnesses, not to go to a specific area, or reporting to the police station. You or a person on your behalf could also agree to pay money into the court which would be forfeited if you subsequently failed to attend court.

What if the offence isn’t serious?

You should be granted bail if there is no real likelihood of a prison sentence if you plead guilty or are convicted. As always, there are exceptions to the rule. You may still find yourself in custody if the Court is satisfied there are substantial grounds for believing that you would:

·         Commit an offence while on bail by engaging in conduct that would, or would be likely to cause-

·         physical or mental injury to an associated person; or

·         an associated person to fear physical or mental injury.

·         Commit further offences if the offence was committed whilst on bail;

·         Fail to surrender, if you have previous convictions for this;

·         If you have been arrested for breach of bail for this offence and there is a fear of failure to surrender, further offences or interference with witnesses.

If you are charged with a non-imprisonable offence you can only be denied bail if you have previously failed to surrender and there is a belief you would do so again or following a breach of bail.

Are there any other reasons I could be kept in custody?

You can also be kept in custody for your own protection or if you are already a serving prisoner. If there is insufficient information to decide about bail you can be kept in custody for the purposes of obtaining that information.

The Magistrates do not have the power to grant bail for anyone charged with murder or treason. For an offence of manslaughter, rape or a serious sexual offence where there is a previous conviction for one of these offences you can only be granted bail if there are exceptional reasons to justify it.

 

This is intended as an overview of the law, and does not cover all potential bail issues. To be able to put forward the best argument for bail you should be represented by an experienced solicitor. 

Revenge Porn

Revenge Porn

"Revenge porn", the criminal act of posting online intimate sexual pictures/video of a person without their consent, carries a potential prison sentence of up to 2 years. 

Celebrity vlogger Chrissy Chambers has taken the matter one step further in launching an action in the High Court designed to secure no further infringement of her rights, and substantial financial damages.

Her ex-partner allowed six sexual videos to be uploaded to the adult site redtube.com, with Ms Chambers being identified by name in 3 of those videos.

The videos were filmed in her home, but without her consent, and showed sexual activity between her and her partner.

She argued in Court that this had caused her 'serious distress', resulting in post-traumatic distress disorder (PTSD).

In the 19 months that the videos were online a large number of people had viewed them, including some people who wrote to her expressing their displeasure at the belief that she was 'intentionally involved in pornography', to such a degree that they did not wish to watch her offerings on YouTube.

In a settlement agreed by the High Court on 18 January 2018, her partner accepted that the posting of the videos was in breach of confidence, misuse of private information and a breach of her article 8 rights (the right to privacy).

To provide future protection, copyright in the videos was transferred to her.

While this is not the first action of its kind (singer Tulisa Contostavlos brought a similar case in 2012), it is notable that Ms Chambers has actively sought publicity about this case, when she could have chosen anonymity.

The legal action was funded by way of a crowd-funding campaign, itself designed to raise public awareness of this issue.

By doing so, she has put this issue into the public domain, and it may well act as a deterrent to those thinking of doing something similar in future, but also a reminder to victims that there could be an easy route to substantial damages, provided of course that the person committing this unlawful act has the means to pay them.

 

To discuss this, or any other matter, please contact me on +447766001774 or contact@crimelawyer.co.uk for prompt specialist advice.

 

Appeals Against Sentence

Appeals Against Sentence

In this article, we consider appeals against sentence from the Crown Court to the Court of Appeal. The appeal process can be complicated depending on the individual case, but the basics are outlined below. 

Early Indications

All Clients should be given an early indication of the likely sentence range, depending on whether there is a guilty plea or conviction after trial.

In some cases, I can be relatively precise as to what might be expected. In others, the range can be quite broad.

But, things do not always go to plan. The evidence may change during the case making it a lot more serious than originally thought (and it can go the other way as well), or the Judge may take a different view of the case, or, and this happens a lot, the Judge falls into error and makes a mistake when sentencing.

First Steps

In all cases, following sentence, there should be clear advice on appeal. This will normally be given verbally, but you can have it in writing if you request that. In more complex cases it is usual for the advocate to set out in writing why an appeal is or is not appropriate.

If an appeal is advised, we will discuss this with you and take the next steps. Likewise, if an appeal is not thought to be viable.

What are the grounds for appeal?

There is a margin of appreciation in sentencing, which means that the Court of Appeal will not interfere merely because it would have sentenced differently.

There are 13 distinct grounds for appeal, but they conveniently break down into two broad labels. For the court to intervene the sentence must be either

  • Wrong in principle, or
  • Manifestly excessive

All appeals are considered initially by a Single Judge, who decides whether the case has merit or not. If that Judge refuses leave to appeal, then we will discuss the next steps with you.

If I am told not to appeal, can I ignore that advice?

Yes, you can. However, this should be discussed with us in advance because there are risks in proceeding with a meritless appeal. A court can impose costs, and also in some cases make a 'loss of time' direction, which means that release from prison will be delayed (14-42 days normally).

How long does an appeal take?

This depends on the complexity of the case and the listing requirements of the court, but appeals are typically heard within six months of being lodged with the court. If a person has received a short prison sentence, there is a procedure to expedite an appeal, and in some cases, they can be heard within a few days.

Can I get bail pending an appeal?

Only in rare cases will the Court grant bail pending appeal, the usual remedy it to expedite the hearing in those cases where this approach is merited.

Where is the appeal heard?

Most appeals are held at the Court of Appeal in London, although occasionally the court sits at regional Crown Court centres. If you are in custody, you will typically be present via video-link, or if on bail you can attend the hearing in person.

Court of Appeal judges will hear the case, and you will be represented by an advocate at the hearing. In some cases, the prosecution is also present, but not always.

When will I find out the result?

In most cases, the result is announced at the end of the hearing. If complex issues are involved, then the decision might take a few weeks longer.

If you didn't represent me, can you advise on appeal?

Yes, I would be happy to discuss your case.

For all criminal law related advice please contact me on +44(0)7766001774 or email me: contact@crimelawyer.co.uk