Criminal Procedure (Bail)
(Jersey) Law 2017
PART 1
INTERPRETATION
AND APPLICATION
1 Interpretation
(1) In this Law, unless the
context otherwise requires –
“Criminal Procedure Law” means the Criminal Procedure (Jersey)
Law 2018;
“Criminal Procedure
Rules” shall be construed in accordance with Articles 111(1) and 112
of the Criminal Procedure Law;
“criminal proceedings” shall be construed in accordance
with Article 2;
“court” means –
(a) the
Magistrate’s Court and, where the context so indicates, the Magistrate;
(b) the
Royal Court; and
(c) the
Youth Court;
“defendant” shall be construed in accordance with
Article 3;
“Mental Health Law” means the Mental Health (Jersey)
Law 2016;
“police officer” includes an officer of the Impôts
within the meaning of the Customs and Excise (Jersey)
Law 1999;
“prescribed” means prescribed by Criminal Procedure Rules;
“prosecutor” in criminal proceedings –
(a) before
the Magistrate’s Court, Royal Court and Youth Court, has the meaning
given in Article 1(2)(b) of the Criminal Procedure Law;
(b) before
the Magistrate’s Court and Youth Court, includes a Centenier, and
the expression “prosecution” shall be construed
accordingly;
“security” shall
be construed in accordance with Article 12(1)(a);
“surrender to custody” means, in relation to a defendant
granted bail, surrendering himself or herself into the custody of the court
(according to the requirements of the grant of bail) at the time and place
appointed for the defendant to do so;
“surety” means a person who, under Article 12(4),
is approved by the court to secure a defendant’s surrender to custody;
“vary” means, in relation to bail, imposing further
conditions after bail is granted, varying existing conditions or lifting any or
all existing conditions. [1]
(2) References in this Law
to –
(a) the
“grant of bail” shall be construed as bail –
(i) subject to Article 5,
grantable under any enactment,
(ii) taken
to be grantable in the proceedings referred to in Article 2(d), or
(iii) grantable
under any rule of customary law;
(b) a
defendant having previously been granted bail includes bail granted before the
coming into force of this Law.
2 Meaning
of “criminal proceedings”
For the purposes of this Law, “criminal proceedings” in
relation to a defendant means –
(a) proceedings before a
court in respect of an offence;
(b) proceedings under Part 8
or 9 of the Mental Health Law;
(c) proceedings under
Article 4(2)(a) of the Criminal Justice (Suspension
of Prison Sentences) (Jersey) Law 2003; or
(d) proceedings in relation
to a person who, having been convicted of an offence –
(i) is
awaiting sentence,
(ii) is
to be committed to the Royal Court under Article 1 of the Criminal Justice (Probation
Orders) (Jersey) Law 1986, or
(iii) appears
or is brought before a court, or is to be committed to the Royal Court, under
Article 7 or 8 of the Criminal Justice (Community
Service Orders) (Jersey) Law 2001.
3 Meaning
of “defendant”[2]
For the purposes of this Law, “defendant” means a person –
(a) charged with an
offence;
(b) convicted of an offence
and awaiting sentence;
(c) in relation to whom a
finding is made under Article 59 or 72 of the Mental Health Law; or
(d) who is the subject of
proceedings referred to in paragraphs (c) and (d) of the definition
“criminal proceedings”.
(e)
(f)
4 References
to period of 48 hours
(1) This Article applies
where any provision of this Law requires something to be done or to occur
within 48 hours.
(2) In determining when the
period of 48 hours expires, there shall be disregarded Christmas Day, Good
Friday and any Sunday.
5 Application
(1) Subject to paragraphs (2)
and (3), this Law applies to bail grantable in, or in connection with criminal
proceedings.
(2) This Law does not apply
to bail grantable under the Court of Appeal (Jersey)
Law 1961.[3]
(3) Except
as provided in Article 98A of the Extradition (Jersey)
Law 2004, and Article 14(2) of the International Criminal Court
(Jersey) Law 2014, this Law does not apply to bail grantable in,
or in connection with proceedings under those Laws.
6 Power
to amend Part 1 by Regulations
The States may by
Regulations –
(a) amend this Part; and
(b) make such
supplementary, incidental, consequential, transitional, transitory or savings
provision as appears to the States to be necessary or expedient for the
purposes of that amendment.
PART 2
BAIL
7 Duty of
court to consider bail and defendant’s general right to bail
(1) On each occasion upon
which a defendant appears before the court in criminal proceedings, it shall be
the duty of the court to consider whether the defendant should be granted bail
pending the determination of those proceedings, including any occasion where
the defendant applies to the court for a variation of his or her conditions of
bail.
(2) Except as provided in
Schedule 1, a defendant has the right to be granted bail whenever he or
she is brought before the court in the course of, or
in connection with criminal proceedings.
(3) A defendant granted
bail is under a duty to surrender to custody, and must
not absent himself or herself from the court without the court’s permission.
(4) If the court denies the
defendant bail on the first occasion he or she appears before it, the defendant
may, on the next occasion he or she appears before that court, or any other
court in the proceedings, support an application for bail with any argument as
to fact or law that the defendant wishes to put forward.
(5) On any subsequent
occasion that the defendant applies for bail, the court need not hear arguments
as to fact or law which that court, or any other court, has heard previously.
8 Exceptions
to right to bail
Schedule 1 sets out the exceptions to the right to be granted
bail.
9 Application
for bail or variation of conditions of bail
(1) Any application for
bail or for a variation of the conditions of bail may be conducted in open court,
and any application for a variation of the conditions of bail may be conducted
without a hearing if the defendant, the prosecution and any surety so agree.
(2) If the court grants
bail subject to conditions, it may subsequently vary any such conditions –
(a) of
its own motion;
(b) on
the application of the defendant or the prosecution; or
(c) on
the application of a surety.
(3) An application for bail
or for a variation of the conditions of bail may be made orally or in such form
as may be prescribed or, in the absence of a prescribed form, in such written
form as the court requires.
10 Decisions and
reasons
(1) Where the court –
(a) grants
a defendant bail;
(b) denies
a defendant bail;
(c) imposes,
or varies any of the conditions of bail; or
(d) appoints
a time or place or a different time or place for a defendant to surrender to
custody,
the court shall make a record of the decision in such form as may be
prescribed or, in the absence of a prescribed form, in such written form as the
court determines.
(2) Subject to paragraph (6),
the court shall provide the defendant with a copy of the record of the decision
as soon as practicable after the record is made.
(3) Where paragraph (1)(b)
or (c) applies, the record of the decision shall include the reasons for
denying bail or imposing or varying any condition of bail.
(4) In a case where the
court grants a defendant bail after hearing representations from the prosecutor
in favour of denying bail, then the court shall also give reasons for granting
bail.
(5) Where paragraph (4)
applies –
(a) the
record of the decision shall include the reasons for granting bail; and
(b) if
requested to do so by the prosecutor, the court shall provide the prosecutor
with a copy of the record of the decision as soon as practicable after the
record is made.
(6) The court need not
provide a copy of the record of the decision to the defendant where he or she
has legal representation unless that defendant’s legal representative
requests the court to do so.
11 The grant of bail
subject to conditions
(1) Except as provided
under paragraph (2), the court shall not impose conditions on the grant of
bail to a defendant.
(2) A defendant may be
required to comply, before he or she is released on bail or later, with such
conditions as appear to the court to be necessary –
(a) to
secure that the defendant surrenders to custody;
(b) to
secure that the defendant attends a parish hall inquiry;
(c) to
secure that the defendant does not commit an offence while on bail;
(d) to
secure that the defendant does not interfere with witnesses or otherwise
obstruct the course of justice, whether in relation to himself or herself, or
any other person;
(e) for
the purpose of enabling inquiries or a report to be made; or
(f) for
the defendant’s own protection or, if the defendant is under the age of 18,
for the defendant’s own welfare or in the defendant’s own
interests.
12 The grant of bail
subject to a security or surety
(1) Before a defendant is
released on bail the court may, as a condition of bail, require the defendant
to do either or both of the following –
(a) provide
a security for the defendant’s surrender to custody which shall be –
(i) of such an amount
as the court may order, and
(ii) deposited
with the Viscount before the defendant is released from the custody of the
court;
(b) propose
a person who agrees to stand as surety to secure the defendant’s
surrender to custody.
(2) The security referred
to in paragraph (1)(a) may be provided by the defendant or on his or her
behalf.
(3) In considering the suitability
of a proposed surety, the court may have regard (amongst other things) to the
surety’s –
(a) financial
resources;
(b) character
and any previous convictions; and
(c) proximity
(whether as an associated person, in place of residence or otherwise) to the
defendant.
(4) If the court is
satisfied as to the suitability of the proposed surety, it shall approve that
person to stand as the defendant’s surety.
(5) Upon approving the
surety, the court shall fix the amount in which the surety is to be bound and
Article 14 shall apply in respect of that surety if the defendant fails to
surrender to custody.
(6) Where bail is granted
subject to a surety, it is also a condition of that bail that if the surety
believes at any time that the defendant is unlikely to surrender to custody –
(a) the
surety must inform a police officer forthwith; and
(b) the
surety must as soon as practicable deliver to a police officer a statement in
writing by the surety confirming the information.
(7) If a parent or guardian
of a defendant under the age of 18 agrees to stand as surety for the
defendant, for the purposes of this Article, the parent or guardian may be
required to secure that the defendant complies with any other conditions
imposed on him or her under Article 11.
(8) However –
(a) a
requirement cannot be imposed on a parent or guardian under paragraph (7)
where it appears that the defendant will attain the age of 18 before the
time appointed for the defendant to surrender to custody;
(b) the
parent or guardian –
(i) cannot be
required to secure compliance with any condition to which his or her agreement
does not extend, and
(ii) cannot
in respect of those conditions to which his or her agreement does extend, be
bound in a sum greater than a sum equivalent to level 1 on the standard
scale.
(9) Article 14 also
applies in respect of a surety who, under paragraph (7), is required to
secure that the defendant complies with any other conditions imposed on him or
her under Article 11 and the defendant fails to comply with any such
conditions.
(10) If, at any time, the court
orders a reduction in the amount of security previously ordered to be deposited
under paragraph (1)(a), the Viscount shall, as soon as is reasonably
practicable, repay the excess amount of security to the defendant or the person
who provided it on the defendant’s behalf.
(11) The amount of security
deposited with the Viscount under paragraph (1)(a) shall, unless ordered
as forfeited under Article 13, be repaid to the defendant or the person
who provided it on the defendant’s behalf –
(a) when
the condition of bail to provide a security is lifted; or
(b) at
the conclusion of the proceedings,
whichever occurs first.
13 Forfeiture of
security
(1) Where a defendant has
provided a security under Article 12(1)(a), or a security is provided on his
or her behalf under Article 12(2) and the court is satisfied that the
defendant has failed to surrender to custody then, unless it appears that the
defendant had a reasonable excuse for that failure, the court may order the
forfeiture of the security.
(2) If the court orders the
forfeiture of a security under paragraph (1), the court may order that the
forfeiture extends to such amount less than the full value of the security as
it thinks fit.
(3) An order under paragraph (1)
shall, unless previously revoked, take effect at the end of 21 days
beginning with the day on which it is made.
(4) An application may be
made to the court to show that the defendant had a reasonable excuse for his or
her failure to surrender to custody.
(5) An application under paragraph (4)
shall be made in the prescribed form, and may be made –
(a) by or
on behalf of the defendant; or
(b) by
the person who provided the security.
(6) If, on application
under paragraph (4), the court is satisfied that the defendant did, after
all, have a reasonable excuse for his or her failure to surrender to custody, the
court may order –
(a) remission
of the full value of the forfeited security; or
(b) that
the forfeiture extends to such amount less than the full value of the security
as it thinks fit.
(7) An application under paragraph (4)
may be made before or after the order for forfeiture has taken effect, but shall not be entertained unless the court is
satisfied that the prosecutor was given reasonable notice of the applicant's
intention to make it.
(8) A security which is
forfeited under paragraph (1) shall be administered by the Viscount as if
it were a fine imposed by the court.
(9) Where an order is made
under paragraph (6), any money which would have fallen to be repaid to the
defendant or other person who provided the security, shall remain deposited
with the Viscount to be repaid to the defendant or other person, in accordance
with Article 12(11).
14 Surety’s
liability where defendant fails to surrender to custody or breaches conditions
(1) This paragraph applies
where –
(a) a
defendant is granted bail subject to a surety and that defendant fails to
surrender to custody; or
(b) in a
case in respect of which Article 12(9) applies, a defendant fails to comply
with any other conditions imposed on him or her.
(2) Where paragraph (1)(a)
applies, the court shall summons the surety to appear before the court at the
time, and on the date specified in the summons to show cause as to why he or
she should not be required to pay the amount in which he or she is bound.
(3) Where paragraph (1)(b)
applies, the court may, if it is satisfied that the surety has failed to secure
the defendant’s compliance with his or her conditions of bail, summons
the surety to appear before the court at the time, and on the date specified in
the summons to show cause as to why he or she should not be required to pay the
amount in which he or she is bound.
(4) The court may proceed
in the absence of any surety if it is satisfied that he or she has been served
with the summons.
(5) The form, content and
service of a summons under this Article shall be prescribed.
(6) The court may order
that the whole or part only of the amount in which the surety is bound shall be
forfeited, or may discharge the surety from any
liability to pay that amount.
(7) Payment of any amount
ordered to be forfeited under this Article, including any costs awarded against
the defendant, shall be paid to the Viscount and that amount –
(a) shall
be administered as if it were a fine imposed by the court; and
(b) if
required, shall be recoverable in such manner as shall be prescribed.
15 Right of prosecutor
to appeal against Magistrate’s decision to grant bail
(1) This Article applies
where the Magistrate, having heard representations from the prosecutor that
bail should not be granted to a defendant who is charged with or convicted of
an offence punishable with imprisonment, grants bail to the defendant.
(2) The prosecutor may,
subject to paragraph (3) and in accordance with paragraph (4), appeal
to the Royal Court against the granting of bail.
(3) An appeal under this
Article may only be made on the ground that the Magistrate’s decision was
unreasonable in all the circumstances of the case.
(4) The prosecutor must –
(a) give
oral notice of appeal to the Magistrate at the conclusion of the proceedings in
which bail has been granted, and before the defendant is released from custody;
and
(b) serve
written notice of appeal on the Magistrate and on the defendant, within
2 hours of the conclusion of the proceedings.
(5) Upon oral notice of
appeal being given, the Magistrate shall remand the defendant in custody until
the appeal is determined or otherwise disposed of.
(6) The appeal shall be
deemed to have been disposed of if the prosecutor fails to serve either or both of the notices required by paragraph (4)(b),
within the time required by that provision.
(7) The hearing of an
appeal under this Article shall commence as soon as is reasonably practicable
after oral notice is given under paragraph (4)(a).
(8) The Royal Court, when
hearing an appeal under this Article, may remand the defendant in custody or
grant bail subject to such conditions as it thinks fit.
(9) In the case of a
defendant under the age of 18, the reference in paragraph (1) to an
offence punishable with imprisonment is to be read as a reference to an offence
which would be so punishable in the case of a defendant aged 18 or over.
(10) There shall be no right of
appeal against a decision of the Royal Court under this Article.
16 Right of
defendant to appeal against Magistrate’s decision to deny bail
(1) If the Magistrate
denies a defendant bail in criminal proceedings, the defendant may appeal to
the Royal Court against that decision.
(2) An appeal under this
Article may only be made on the ground that the Magistrate’s decision was
unreasonable in all the circumstances of the case.
(3) There shall be no right
of appeal against a decision of the Royal Court under this Article.
17 Court order for
arrest
(1) The court may order the
arrest of a defendant granted bail –
(a) if
the defendant fails to surrender to custody at the time appointed for him or
her to do so; or
(b) if it
appears to the court that the defendant has broken any of the conditions of his
or her bail.
(2) The court may order the
arrest of a defendant granted bail if the defendant, having surrendered to
custody, absents himself or herself from that court –
(a) before
the court is ready to commence or resume the hearing of the proceedings in the
defendant’s case; and
(b) without,
or otherwise than in accordance with any, permission given to the defendant by
or on behalf of the court.
(3) An order under
paragraph (1) or (2) authorizes every police officer or the Viscount to
arrest and detain the defendant to whom the order relates and to bring the
defendant before the court.
(4) A defendant arrested
and detained under this Article shall be brought before the court within
48 hours of his or her arrest.
18 Police power of
arrest
(1) A police officer may
arrest a defendant granted bail –
(a) if
the officer has reasonable grounds for believing that the defendant is not
likely to surrender to custody;
(b) if
the officer has substantial grounds for believing that the defendant is likely
to break any of the conditions of his or her bail or has reasonable grounds for
suspecting that the defendant has broken any of those conditions; or
(c) where
a defendant was granted bail subject to a surety, if that surety notifies a
police officer, in writing, that the defendant is unlikely to surrender to
custody and, for that reason, the surety wishes to be relieved of his or her
obligations as a surety.
(2) A defendant arrested
under this Article shall be brought before the court within 48 hours of
his or her arrest.
PART 3
OFFENCES AND FINAL PROVISIONS
19 Offence of
agreeing to indemnify a surety
(1) If a person agrees with
another to indemnify that other against any liability which that other may
incur as a surety to secure the surrender to custody of a defendant, he or she
and that other person shall be guilty of an offence.
(2) An offence under this
Article is committed whether the agreement is made before or after the person
to be indemnified becomes a surety and whether or not he or she becomes a
surety and whether the agreement contemplates compensation in money or in
money's worth.
(3) A person guilty of an
offence under this Article shall be liable to imprisonment for a term not
exceeding 12 months and to a fine.
20 Offence of
failing to surrender to custody
(1) A defendant granted
bail who, without reasonable excuse, fails to surrender to custody shall be
guilty of an offence.
(2) A defendant granted
bail who, with reasonable excuse, fails to surrender to custody shall be guilty
of an offence if he or she fails to surrender to custody, as soon as is
reasonably practicable.
(3) It shall be for the
defendant to prove that he or she had a reasonable excuse for his or her
failure to surrender to custody.
(4) The fact that a
defendant has not been given a copy of the record of the decision to grant him
or her bail, shall not constitute a reasonable excuse for his or her failure to
surrender to custody.
(5) A defendant guilty of
an offence under paragraph (1) or (2) shall be liable to imprisonment for
a term not exceeding 12 months and to a fine.
(6) In any proceedings for
an offence under paragraph (1) or (2), a document purporting to be a
certified copy of the part of the decision to grant the defendant bail which
relates to the time and place appointed for the defendant to surrender to
custody shall be evidence of the time and place appointed for the
defendant’s surrender to custody.
(7) Criminal Procedure
Rules shall specify how and by whom copies may be certified for the purposes of
paragraph (6).[4]
21 Regulations and Criminal
Procedure Rules[5]
(1) The States may, by
Regulations make such transitional provision as appears to the States to be
necessary or expedient for the purposes of bringing this Law into force.
(2) The States may, by
Regulations amend any enactment including this Law for the purpose of making
such transitional, transitory, consequential, incidental, supplementary or
saving provision as they consider necessary or expedient in respect of any
provision made by or under this Law.
(3) The power to make
Regulations under paragraph (1) includes the power to make any
supplementary, incidental, consequential, transitory or saving provision which
appear to the States to be necessary or expedient for the purposes of the
Regulations.
(4) The power to make
Criminal Procedure Rules under Article 112 of the Criminal Procedure Law
includes the power to make rules for the purposes of this Law.[6]
22 [7]
23 [8]
24 Citation and
commencement
This Law may be cited as the Criminal Procedure (Bail) (Jersey)
Law 2017 and shall come into force on such day or days as the States may
by Act appoint.