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Legal Aid, Sentencing and Punishment of Offenders Act 2012

Schedule 11: Amendment of enactments relating to bail

494.Schedule 11 amends the 1976 Act so that certain of the exceptions to the presumption that bail should be granted to a defendant will not apply where there is no real prospect that the defendant will be sentenced to a custodial sentence if convicted (“the no real prospect test”). This new test (which increases the availability of bail) is limited to non-extradition proceedings and to adult defendants who have not been convicted.

495.Those aged under 18 will continue to be subject to the existing exceptions in Schedule 1 to the 1976 Act restricting the grant of bail. This is to ensure that those offenders aged under 18 who would otherwise be granted bail under the new test can continue to be given “looked after” status by the local authority (see Chapter 3 of Part 3 of the Act). This means that the young person is assessed by the local authority and receives appropriate assistance and supervision.

496.Although the new restriction on the exceptions to bail does not apply to under-18s by virtue of this Schedule, a similar restriction on remand to youth detention accommodation is imposed by the youth remand provisions in Chapter 3 of Part 3 of the Act.

497.Paragraph 5 inserts a new section 3AAA into the 1976 Act which sets out conditions for the imposition of electronic monitoring requirements in respect of children and young people released on bail whilst subject to extradition proceedings. The conditions specified are broadly equivalent to those set out for domestic cases in section 3AA of the same Act.

498.Paragraph 8 amends section 7 of the 1976 Act which applies to a person who has been released on bail and fails to surrender to custody. In such circumstances the power to remand the person in custody will be subject to the “no real prospect” test, i.e. that there must be a real prospect that the person would be sentenced to a custodial sentence if convicted of the offence. This new test is limited to non-extradition proceedings and to adult defendants who have not been convicted.

499.Paragraphs 13 and 25 amend Parts 1 and 1A of Schedule 1 to the 1976 Act. These Parts deal with those cases in which the person is accused or convicted of an indictable or a summary offence which is punishable with imprisonment. The effect of the amendments is that certain exceptions to the right to bail do not apply where there is no real prospect of a custodial sentence and the matter relates to non-extradition proceedings and to adult defendants who have not been convicted.

500.Paragraph 15 amends Part 1 of Schedule 1 to the 1976 Act by inserting a new exception to the right to bail which is not subject to the new ‘no real prospect test’. This new exception to bail relates to a person who, if released on bail, might commit an offence involving domestic violence. Paragraph 26 makes equivalent provision for Part 1A of Schedule 1.

501.Paragraphs 27 to 30 amend Part 2 of Schedule 1 to the 1976 Act, which deals with cases in which a person is accused or convicted of a non-imprisonable offence. The effect of the amendments is to make certain existing exceptions to the right to bail applicable only where the defendant is under the age of 18 or has been convicted of the offence. This has the same effect as the “no real prospect” test in Parts 1 and 1A of Schedule 1 which disapplies certain exceptions to the right to bail.

502.Schedule 11 also amends the 1993 Act to extend the existing power of appeal so that the prosecution may appeal to the High Court against the decision of a judge of the Crown Court to grant bail to a person charged with or convicted of an imprisonable offence. This new route of appeal is restricted to a decision of a judge of the Crown Court that was not, itself, made on appeal from the magistrates’ court under the existing provisions in the 1993 Act.

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