The Bail Act of 1976 - Essay Example

Case one Scenario one Mr. Jones wishes to make an application for bail under section of the Bail Act of 1976. In making, this bail application I will refer to: i) The defendants proof of evidence (Document 2) ii) Antecedents of Nicholas jones (Document 5) The case against the defendant is wounding with intent contrary to section 18 of the Offences Against the person act 1861. The alleged crime was committed on April 2 where it is alleged that the defendant unlawfully and maliciously wounded Oliver Davies with intent to cause him grievous bodily harm. The defendant was initially granted pre-charge bail but this was subsequently denied. From his statement of proof, document 2, it is evident that the defendant did not deliberately injure the plaintiff. The nature of the crime that is alleged is not serious to warrant refusal of bail. In his statement, the defendant states that he is married and operates a business that employs two individuals. According to the witness statements document 3 and 4 the defendant did not resist arrest and complied with the arresting officers when he was arrested. When the defendant was granted the pre-charge bail, he did not abscond and willingly returned to the police station to be interviewed on the second occasion. From his antecedents it is also evident that the defendant was born in Lymeshire and has a permanent address. The defendant does not have any outstanding bail commitment and has not made attempt to return to The Void. The Bail Act 1976 provides that the court should presume that the defendant should be granted bail unless there are circumstances to justify refusal of bail. Part II of the act provides circumstances when the defendant need not be granted bail. These circumstances include where it is apparent to the court that the defendant failed to surrender to custody in accordance to bail conditions in a previous bail commitment. The court can also refuse to grant bail if it believes that the defendant was on bail when the offence was committed. Additionally, the court need not grant bail if it is satisfied that there are reasons to believe that the defendant would commit a crime while on bail, refuse to commit to custody, interfere with witness or obstruct justice. Furthermore, the court should not grant bail to the defendant if it is satisfied that the defendant should remain in custody for his own protection (Loveless, 2008). From the defendants statement of proof it is apparent that the defendant did not fail to surrender to custody in accordance to the conditions of the pre-charge bail. The defendant was not on bail when the alleged crime was committed. There is no evidence on record or reason to believe that the defendant would commit a crime while on bail. The defendant does not intend to refuse to commit to custody after being granted bail nor does he intend to interfere with the witnesses or obstruct justice while on bail. There are also no reasons to hold the defendant in custody for his own protection. From the defendants statement of proof as well as is antecedents and the witness statement s it is evident that the defendant is not a danger to the community. The defendant is an employer in the community and is a family man who runs a legitimate business. The defendant is not at flight risk as he has a family, a business and a permanent residence in the community. Given the circumstances of the case, it would serve the interest of justice if the defendants request for bail were granted. Scenario two Mr. Jones made an application for bail under section 1 of the Bail Act of 1976. The Crown wishes to oppose the grant of bail to Mr. Jones. In opposing the grant of bail, the Crown will refer to i) The defendants charge sheet (Document 1) ii) The defendants proof of evidence (Document 2) iii) The defendants antecedents (Document 5) The defendant is charged with wounding with intent contrary to Offences Against the Person Act 1861 section 8. The defendant on 2 April unlawfully and maliciously wounded Oliver Davies with the intent to do him grievous bodily harm. The defendant was previously granted police bail but this was denied after the second interview. Bail was refused because the defendant is likely to seek retribution against his accusers and may fail to surrender to custody if he is released on bail. From the defendant’s statement of proof and his antecedents, it is clear that the defendant has a previous record of convictions. The defendant has for previous convictions of common assault contrary to section 39 of the Offences Against the Person Act 1861, assault occasioning actual bodily harm contrary to section 47 of the Offences Against the Person Act 1861, fraud contrary to section 1 of the Fraud Act 2006 and threatening behavior contrary to section 5 of Public Order Act 1986. With respect to the third conviction, the defendant has a 15-month conditional discharge. With regard to the defendant’s second conviction of assault occasioning actual bodily harm, the defendant demonstrated his tendency to be violent. The defendant’s previous convictions indicate the he is likely to be violent and may return to The Void to seek retribution against his accusers. Part II of the Bail Act 1976 stipulates the circumstances where the defendant can be refused bail. Bail need not be granted if the court believes that if the defendant is released on bail he will fail to surrender to custody. The act also provides that the court can refuse to grant bail to the defendant if there is reason to believe that the defendant would commit a crime if he were to be released on bail. Additionally, the court may refuse to grant bail to the defendant if it is satisfied that the defendant would interfere with witnesses or obstruct justice if he is released on bail. Furthermore, the court should consider the seriousness of the crime and the likely penalty if the defendant is convicted. It is clear from the circumstances of the case and the defendant’s previous convictions that he is likely to commit a crime if he is released on bail. From his statement of proof, it is evident that the defendant has a history of confrontation and violence and this may cause him to return to The Void to seek retribution against his accusers. The likelihood that he may return to confront his accusers may also occasion interference with witnesses and obstruction of justice. The outstanding conditional discharge from his previous conviction provides sufficient reason to believe that the defendant may refuse to surrender to custody if he is released on bail. The outstanding conditional discharge also adds to the weight of the penalty if he is convicted in this case, therefore, the defendant is likely to fail to surrender to custody. From the defendant’s statement of proof as well as his antecedents, it is evident that the defendant has a previous record of convictions including violent convictions. Additionally, the defendant has an outstanding conditional discharge and may return to confront his accusers and interfere with witnesses. Based on these circumstances, the Crown opposes the grant of bail to the defendant because he is at flight risk and may be a danger to the community. Case 2 Scenario 3 Plea in mitigation Introduction James Smith has pleaded guilty to burglary, contrary to section 9(1) (b) of the Theft Act 1968. Smith has instructed me to make a plea in mitigation on his behalf and has co-operated during the preparation of this plea. The defendant takes a guilty plea for a lenient sentence of 50 hours unpaid work. Offence analysis The charges against Smith arise out of an incident on 17 March he trespassed into a building, which was a dwelling place and stole £500. Smith and an accomplice went into Lyme Street to look for a potential victim to steal from. The two identified Ken Brown as the potential victim because her had disabilities. They followed the victim home to ascertain his address. The accomplice knocked on the victim’s front door and borrowed a phone. While the accomplice was on the phone, Smith entered the building through the back door and made away with the victim’s wallet. The two shared the money in the wallet. Subsequently, the two were arrested. Smith is a young adult who has made a mistake and will not make another. He was not under the influence of drugs or alcohol at the time the offence was committed. He co-operated fully with the police when he was arrested and did not try to run away. None of the aggravating factors in section 10 of the Act applies to Smith’s case. When the offence was committed, neither of the offenders had a firearm or an offensive weapon. The crime was committed out of financial necessity and he is willing to make voluntary reparation of the money stolen. He has expressed remorse to the victim and has promised not to stay away from crime. Personal mitigation Smith is a young adult who has had a turbulent past. He was orphaned at an early age after his whole family perished in a car accident. He spent most of his time in foster homes. His schoolwork was affected and was later diagnosed with clinical depression, which resulted from his traumatic childhood. He takes his medication regularly. Smith is a laborer and although he enjoys his work and has good relationship with his workers and managers, the job does not pay well. Smith lives with his girlfriend and their six moth old son. His girlfriend is not employed and Smith is the only one who provides for the family. Smith is now an apprentice mechanic and hopes this will solve his financial difficulties. Previous convictions Smith has previous convictions and these include three counts of shop theft in April 2012 where he was given a formal caution. In February of 2013, he also admitted to two charges of shop theft and he was also cautioned. In July 2013, he was charged with possession of a class A substance and was handed a rehabilitation order. In August 2014, he pleaded guilty to burglary of a commercial property and was fined £700 and ordered to undertake 50 hours of community service. Smith’s previous offences were motivated by financial needs and not greed. This is evident as all the goods were basic foodstuffs and there were no luxury items. Conclusion The most suitable sentence for Smith would be a community service order with 50 hours of community service. Smith is concerned about the prospect of a custodial sentence as this would adversely affect him. He has a lengthy employment record and depends largely on himself. He is the only provider for a young family and the family would suffer if he is given a custodial sentenced. A custodial sentence will also affect his job and he would have nothing to go back to when he is released which will increase the chances of re offending. Is mental health will also be affected by a custodial sentence because he would be able to continue with his medication. Smith has expressed his willingness to comply with the suggested sentence of community service order and unpaid work (Herring, 2004). Scenario 4 Smith was charged with burglary, contrary to section 9(1) (b) of the Theft Act 1968. He pleaded guilty and was convicted at a trial in the Magistrates Court. Smith is a repeat offender and in the particular crime, he targeted a disabled man. The Crown objects to the defendant’s plea in mitigation and is of the view that the defendant should get the full punishment for the offence. Offence analysis Smith and his accomplice deliberately went into Lyme Street with the intention of finding a victim. They identified ken Brown as the most appropriate victim because he was disabled and, therefore, vulnerable. They followed the victim to this house with the intention of ascertaining his address. Smith’s accomplice occupied the victim while Smith entered the house from the back door and stole the victim’s wallet. Section 9 (1) (b) of the Theft Act 1968 provides that an individual is guilty of burglary if having entered a building as a trespasser, he steals or attempts from the house. Section 9 (3) further provides that an individual who is guilty of burglary of part of a building, which is a dwelling place, is liable for imprisonment for a term not exceeding 14 years (Heaton and De Than, 2011). Smith trespassed into the victim’s dwelling house and stole from the house. The offenders prior plan of the crime shows that the crime was pre meditated and satisfies the provision of section 9 (1) (b) of the Theft Act 1968. The prescribed sentence for the offence is a custodial sentence not exceeding 14 years. Aggravating factors The victim in this current case is a disabled man who is vulnerable due to his disability. The offenders because of this vulnerability primarily targeted the victim. The offence was deliberate and planned where the victim was targeted due to his extreme physical disabilities. The defendant also has a previous criminal record with offences related to theft and drugs. . Previous convictions In April 20002 Smith admitted to three counts of shop theft and was issued a formal caution by the police. In February, the following year he also admitted to two charges of shop theft and was also issued a formal caution. In July 2013, he was convicted of possession of a class A substance and was handed a rehabilitation order. In August 20114 he pled guilty to burglary of a commercial property and was fined £700 and ordered to undertake 50 hours of community service by Sunderland Magistrates. The offender has a criminal history of similar offences, which appear to be escalating in nature and gravity. Assessment and conclusion Smith trespassed into a dwelling place and stole property from the house. The crime meets the threshold of burglary provided for by section 9 (1) (b) of the Theft Act 1968. The prescribed sentence of such a crime is custodial sentence of not more than 14 years. Moreover, the crime was premeditated and planned by the two individuals. The victim of the crime was a man with extreme physical disabilities. Smith has a history of similar crimes and this seems to be escalating. Smith poses a risk of reoffending because his motivation for offending, which is financial circumstances, has not been addressed. Additionally his mental wellbeing may contribute to reoffend as this has not been resolved. Due to the repeat nature of the offender and the circumstances surrounding the current case, especially the physical disability of the victim of the crime, the Crown is of the view that the offender should be handed a custodial sentence of 5 years. Bibliography Heaton, R. and De Than, C. (2011). Criminal law. Oxford: Oxford University Press. Herring, J. (2004). Criminal law. Oxford: Oxford University Press. Loveless, J. (2008). Criminal law. Oxford: Oxford University Press. Read More