Criminal Procedure
(Bail) (Jersey) Law 2017
A LAW to make provision for, or in
connection with the granting of bail by a court in criminal proceedings; to amend
the Police Procedures and Criminal Evidence (Jersey) Law 2003 in relation
to police bail and detention; and for connected purposes.
Adopted by the
States 19th July 2017
Sanctioned by
Order of Her Majesty in Council 11th October 2017
Registered by the
Royal Court 20th
October 2017
THE STATES, subject to the sanction of Her Most Excellent Majesty in Council, have
adopted the following Law –
PART 1
INTERPRETATION AND APPLICATION
1 Interpretation
(1) In
this Law, unless the context otherwise requires –
“1949 Law” means
Magistrate’s Court (Miscellaneous Provisions) (Jersey) Law 1949[1];
“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;
“offence” means any crime,
délit or contravention,
and any other act or omission involving breach of a duty to which by law a sanction
is attached, and includes any alleged offence;
“Mental Health Law”
means the Mental Health (Jersey) Law 2016[2];
“police officer”
includes an officer of the Impôts within the meaning of the Customs and
Excise (Jersey) Law 1999[3];
“prescribed” means
prescribed by rules of court referred to in Article 21(4);
“prosecutor” means –
(a) a
Centenier;
(b) a
Crown Advocate appointed under Article 1 of the Crown Advocates (Jersey)
Law 1987[4]; or
(c) a
person approved by the Attorney General, under Article 14 of the 1949 Law,
to undertake prosecutions on his or her behalf, 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.
(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[5]; 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[6], 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[7].
3 Meaning
of “defendant”
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;
(d) who
is the subject of proceedings referred to in paragraphs (c) and (d) of the
definition “criminal proceedings”;
(e) summoned
by a Centenier to appear before the Magistrate’s Court in respect of an
offence, pursuant to Article 9 of the 1949 Law; or
(f) against
whom criminal proceedings are directly initiated in the Royal Court by the
Attorney General.
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 –
(a) bail
grantable under Article 24 of the 1949 Law; or
(b) bail
grantable under the Court of Appeal (Jersey) Law 1961[8].
(3) Except
as provided in Article 98A of the Extradition (Jersey) Law 2004[9], and Article 14(2) of
the International Criminal Court (Jersey) Law 2014[10], 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) Rules
of court referred to in Article 21(4) shall specify how and by whom copies
may be certified for the purposes of paragraph (6).
21 Regulations
and rules of court
(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
powers to make rules of court under Article 29 of the 1949 Law and Article 13
of the Royal Court (Jersey) Law 1948[11] include the power to make
rules for the purposes of this Law.
22 Police
Procedures and Criminal Evidence (Jersey) Law 2003 amended
Schedule 2 has effect to amend the Police Procedures and
Criminal Evidence (Jersey) Law 2003[12].
23 Miscellaneous
enactments amended
Schedule 3 has effect to amend enactments consequentially upon
the enactment of this Law.
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.
l.-m. hart
Deputy Greffier of the States
SCHEDULE 1
(Article 8)
EXCEPTIONS TO GENERAL RIGHT TO BAIL
Exceptions to right to bail
1 Defendant
presents substantial risk
A defendant’s right to be granted bail may be denied if the
court is satisfied that there are substantial grounds for believing that the
defendant, if granted bail (whether subject to conditions or not)
would –
(a) fail
to surrender to custody;
(b) commit
an offence whilst on bail;
(c) interfere
with witnesses or otherwise obstruct the course of justice, whether in relation
to the defendant or any other person.
2 Defendant’s
own protection or welfare
A defendant’s right to be granted bail may be denied if the
court is satisfied that the defendant should be kept in custody for his or her
own protection or, if the defendant is under the age of 18, for his or her own
welfare.
3 To
facilitate the obtaining of information
A defendant’s right to be granted bail may be denied where the
court is satisfied that it has not been practicable to obtain sufficient
information for the purposes of taking decisions required under this Schedule
for want of time since the institution of proceedings against the defendant.
4 Defendant’s
case adjourned for inquiries
A defendant’s right to be granted bail may be denied where the
defendant’s case is adjourned for inquiries or a report and it appears to
the court that it would be impracticable to complete the inquiries or make the
report without keeping the defendant in custody.
5 Defendant
convicted of offence punishable with imprisonment
A defendant’s right to be granted bail may be denied if a
defendant has been convicted of an offence punishable with imprisonment and is
awaiting sentence.
6 Defendant
serving sentence of imprisonment
A defendant’s right to be granted bail may be denied if the
defendant is in custody serving a sentence of imprisonment.
Reasons for denying right to bail
7 Relevant
considerations under paragraph 1
In determining for the purposes of paragraph 1 whether the
court is satisfied that there are substantial grounds for believing that a
defendant, if granted bail (whether subject to conditions or not), would do
anything specified under that paragraph, the court shall have regard to such of
the following considerations as appear to it to be relevant –
(a) the
nature and seriousness of the offence or default (and the probable method of
dealing with the defendant for it);
(b) the
character, antecedents, associations and community ties of the defendant;
(c) the
defendant’s record as respects fulfilment of his or her obligations under
previous grants of bail;
(d) except
in the case of a defendant whose case is adjourned for inquiries or a report,
the strength of the evidence of the defendant having committed the offence or
having defaulted;
(e) the
risk that the defendant may engage in conduct that would, or would be likely
to, cause physical or mental harm to any person other than the defendant,
as well as any other considerations which also appear to the court
to be relevant.
SCHEDULE 2
(Article 22)
police procedures and Criminal Evidence
(Jersey) Law 2003 amended
1 Interpretation
In this Schedule, “principal Law” means the Police
Procedures and Criminal Evidence (Jersey) Law 2003[13].
2 Article 1
amended
In Article 1(1) of the principal Law –
(a) in paragraphs (a)
and (b) of the definition “appropriate consent” for the words
“17 years” there are substituted the words “18 years”;
(b) after
the definition “Chief Officer” there is inserted the following
definition –
“ ‘child’
means a person who has attained the age of 10 years and has not attained
the age of 15 years;”;
(c) after
the definition “offensive weapon” there is inserted the following
definition –
“ ‘officer
of the Force’ means a member of the States of Jersey Police
Force;”;
(d) the
definition “police officer” is deleted;
(e) after
the definition “relevant time” there is inserted the following
definition –
“ ‘secure
accommodation’ has the same meaning as in Article 1(1) of the
Children (Jersey) Law 2002[14];”;
(f) after
the definition “vessel” there is inserted the following
definition –
“ ‘young person’
means a person who has attained the age of 15 years and has not attained
the age of 18 years;”.
3 Article 29A
inserted
Immediately before Article 30 of the principal Law there is
inserted the following Article –
“29A Interpretation of Part 5
In this Part –
(a) any reference to the release of a person on,
or with bail, means the release of that person on bail either unconditionally
or with such requirement or conditions as may be imposed in accordance with Article 30
or 31B;
(b) ‘prescribed’ means prescribed by
rules of court referred to in Article 48A.”.
4 Article 30
substituted
For Article 30 of the principal Law there is substituted the
following Article –
“30 Police
grant of bail subject to conditions where person arrested for but not charged
with an offence
(1) This Article applies where, under this Part,
a Centenier or an officer of the Force (as the case may be) releases on bail a
person arrested for, but not charged with an offence.
(2) The Centenier or officer of the Force may
grant the person bail subject to a requirement for the person to attend a
parish hall inquiry or return to a police station, on a day and at a time
notified to the person.
(3) If before the day and time notified under paragraph (2)
the person is no longer required to attend a parish hall inquiry or return to a
police station, a police officer shall notify the person in writing that he or
she is released from bail and from any requirement to attend a parish hall
inquiry or return to a police station.
(4) Where it appears to the Centenier or an
officer of the Force that it is necessary to do so –
(a) for
the purpose of preventing the person from failing to attend a parish hall
inquiry or returning to a police station (as the case may be);
(b) for
the purpose of preventing the person from committing an offence while on bail;
(c) for
the purpose of preventing the person from interfering with witnesses or
otherwise obstructing the course of justice, whether in relation to himself or herself,
or any other person; or
(d) for
the protection of the person’s or, if he or she is under the age of 18,
for that person’s own welfare or in his or her own interests,
the Centenier or officer of
Force may impose such conditions of bail as appear to him or her to be
necessary for that purpose.
(5) A person granted bail subject to any
conditions imposed under paragraph (4) may request a Centenier or an
officer of the Force to vary the conditions of bail and, in doing so, that
Centenier or officer of the Force may remove those conditions or impose
different, including more onerous conditions.
(6) A request made under paragraph (5)
shall be determined not later than 96 hours after it is received, and in
default of any determination within that period, the person granted bail may
apply to the Magistrate to vary his or her conditions of bail.
(7) Where a Centenier or an officer of the
Force, pursuant to paragraph (4), imposes conditions of bail or, pursuant
to paragraph (5), varies any condition of bail, he or she shall give the
person granted bail a copy of the record of those conditions setting out the
reasons for imposing or varying such conditions.
(8) Where a Centenier or an officer of the Force
imposes conditions of bail under paragraph (4) or, upon a request under paragraph (5),
refuses to vary the conditions of bail, the person granted bail may apply to
the Magistrate to review the Centenier’s or officer of the Force’s
decision.
(9) An application under paragraph (6) or
(8) shall be made in the prescribed form, and shall be heard not later than the
first sitting of the Magistrate’s Court after the application is made.
(10) Where paragraph (6) or (8) applies the
Magistrate may –
(a) remove
any condition of bail or impose different conditions, including more onerous
conditions; or
(b) overturn
the Centenier’s or officer of Force’s decision to grant bail and
remand the person into custody.
(11) The Magistrate shall provide the person granted
bail with a copy of the record of his or her decision in the prescribed form,
or in the absence of such a form, in such written form as the Magistrate
determines, which shall include the reasons for denying bail or imposing or
varying any condition of bail, as soon as practicable after the record is made.
(12) There shall be no right of appeal against a
decision of the Magistrate under this Article.”.
5 Articles 31A
and 31B inserted
After Article 31 of the principal Law there are inserted the
following Articles –
“31A Limit
on duration of bail of person arrested for but not charged with offence
(1) This Article applies where a Centenier or an
officer of the Force (as the case may be), under Article 30(1) or 31, releases
on bail a person arrested for, but not charged with an offence.
(2) Except as authorized under paragraph (4),
a Centenier or an officer of the Force cannot keep the person on such bail for
the offence for a continuous period of more than 6 months.
(3) The continuous period of 6 months
includes any further period of bail for the offence that is granted –
(a) on the person’s return to a parish
hall or police station (as the case may be) to answer to bail for the offence; or
(b) following the person’s arrest under Article 44.
(4) On an application made by a Centenier or an
officer of the Force before the expiry of the continuous period of 6 months,
the Magistrate may authorize bail to be granted by a Centenier or an officer of
the Force in connection with the offence for a further period, specified by the
Magistrate, that would cause the continuous period to exceed 6 months.
(5) On an application made by a Centenier or an
officer of the Force before the expiry of the further period specified by the
Magistrate under paragraph (4), the Magistrate may authorize bail to be
granted by a Centenier or an officer of the Force in connection with the
offence for such further period as the Magistrate may specify.
(6) If the Magistrate gives an authorization
under paragraph (4) or (5), the Magistrate may direct the Centenier or officer
of the Force as to the conditions that must, may or must not be attached to the
grant of bail, and the Centenier or officer granting bail must have regard to
those directions.
(7) There shall be no right of appeal against a
decision of the Magistrate under this Article.
31B Grant
of bail by Centenier where person is charged with an offence
(1) This Article applies where a Centenier
releases on bail a person charged with an offence (the ‘person charged’).
(2) Where it appears to the Centenier that it is
necessary to do so –
(a) for
the purpose of preventing the person charged from failing to surrender to the custody
of the Magistrate’s Court or Youth Court (as the case may be);
(b) for
the purpose of preventing the person charged from committing an offence while on bail;
(c) for
the purpose of preventing the person charged from interfering with witnesses or otherwise obstructing the course of
justice, whether in relation to himself or herself, or any other person; or
(d) for the protection of the person charged or, if he or she is under the
age of 18, for that person’s own welfare or in his or her own
interests,
the Centenier may impose such
conditions of bail as appear to him or her to be necessary for that purpose.
(3) A person charged who has been granted bail
subject to conditions, may request a Centenier to vary the conditions of bail
and, in doing so, that Centenier may remove those conditions or impose
different, including more onerous conditions.
(4) A request made under paragraph (3)
shall be determined not later than 96 hours after it is received, and in
default of any determination within that period, the person charged may apply
to the Magistrate to vary his or her conditions of bail.
(5) Where a Centenier, pursuant to paragraph (2),
imposes conditions of bail or, pursuant to paragraph (3), varies any condition
of bail, he or she shall give the person charged a copy of the record of those
conditions setting out the reasons for imposing or varying such conditions.
(6) Where the record referred to in paragraph (5)
is prescribed, the record shall be made in that form.
(7) Where a Centenier imposes conditions of bail
under paragraph (2) or, upon a request under paragraph (3), refuses
to vary the conditions of bail, the person charged may apply to the Magistrate
to review the Centenier’s decision.
(8) An application under paragraph (4) or (7)
shall be made in the prescribed form and shall be heard not later than the
first sitting of the Magistrate’s Court after the application is made.
(9) Where paragraph (4) or (7) applies the
Magistrate may –
(a) remove any condition of bail or impose
different, including more onerous conditions; or
(b) overturn the Centenier’s decision to
grant bail and remand the person into custody.
(10) The Magistrate shall provide the person charged
with a copy of the record of his or her decision in the prescribed form, or in
the absence of such a form, in such written form as the Magistrate determines, including
the reasons for denying bail or imposing or varying any condition of bail, as
soon as practicable after the record is made.
(11) There shall be no right of appeal against a
decision of the Magistrate under this Article.”.
6 Article 35
amended
In Article 35(7)(b) of the principal Law the words “, to
return to the police station” are deleted.
7 Article 36
substituted
For Article 36 of the principal Law there is substituted the
following Article –
“36 Duties
of Centenier after charge
(1) This Article applies to a person in police
detention and for the purposes of this Article only, the expression ‘police
detention’ includes a person who attends voluntarily at, or accompanies a
police officer to a police station, but who is not arrested at the station.
(2) Where a Centenier charges a person in police
detention with an offence, the Centenier shall order the person’s release
from police detention, either on bail or without bail, unless –
(a) the
person’s name or address cannot be ascertained or
the Centenier has reasonable grounds for doubting whether a name or address
given by the person as his or her name or address is that person’s real
name or address;
(b) the Centenier has reasonable grounds for believing
that the person will, if granted bail, fail to surrender to the custody of the
Magistrate’s Court or Youth Court (as the case may be) at the time and
place appointed for the person to do so;
(c) the Centenier has reasonable grounds for
believing that the detention of the person is necessary to prevent him or her
from committing an offence;
(d) in the case of a person of full age, the
Centenier has reasonable grounds for believing that the detention of the person
is necessary to enable a sample to be taken from him under Article 59;
(e) the Centenier has reasonable grounds for
believing that the detention of the person is necessary to prevent him or her from
interfering with the administration of justice or with the investigation of
offences or of a particular offence; or
(f) the Centenier has reasonable grounds
for believing that the detention of the person is necessary for his or her own
protection.
(3) If the Centenier does not order the release
of a person charged with an offence (‘person charged’) from police
detention under paragraph (2), the Centenier shall authorize the keeping
of that person in police detention but may not authorize that he or she be kept
in police detention by virtue of sub-paragraph (d) after the end of the
period of 6 hours beginning from the time at which that person was charged
with the offence.
(4) If, under paragraph (3), the Centenier authorizes
that a person charged be kept in police detention, the Centenier shall, as soon
as practicable, make a written record of the grounds for the detention.
(5) Subject to paragraph (6), the written
record shall be made in the presence of the person charged who shall at that
time be informed by the Centenier of the grounds for his or her detention.
(6) Paragraph (5) shall not apply where the
person charged is, at the time when the written record is made –
(a) incapable
of understanding what is said to him or her;
(b) violent
or likely to become violent; or
(c) in
urgent need of medical attention.
(7) Subject to paragraph (8), where a
Centenier authorizes that a child or young person charged with an offence is to
be kept in police detention under paragraph (3), the Centenier shall,
pending the child’s or young person’s attendance before the Youth
Court or the Magistrate’s Court, as the case may be, secure that he or
she is transferred to secure accommodation as soon as is practicable.
(8) If –
(a) having regard to all of the circumstances, in
the Centenier’s opinion it is impracticable to transfer the child or
young person to secure accommodation; or
(b) there is no secure accommodation available pending
the child’s or young person’s attendance before the Youth Court,
the Centenier shall authorize
the child’s or young person’s continued police detention and shall,
upon that child’s or young person’s attendance at the Youth Court, produce
a certificate stating the grounds for that detention.
(9) For the purpose of securing the
child’s or young person’s transfer to secure accommodation under paragraph (7),
it shall be lawful for any person acting on behalf of the Minister for Health
and Social Services to effect the transfer of that child or young person to
secure accommodation, and to detain him or her for the purpose of effecting
that transfer.”.
8 Article 37
amended
In Article 37(4) of the principal Law, for the words “If
a juvenile is moved to publicly provided accommodation under Article 36(6)”,
there are substituted the words “If a child or young person is
transferred to secure accommodation under Article 36(7)”.
9 Article 38
amended
In Article 38 of the principal Law –
(a) in paragraph (1),
for sub-paragraph (a) there is substituted the following
sub-paragraph –
“(a) in the case of a person who has
been charged with an offence (regardless of whether or not he or she was
arrested before being charged), by the Centenier who preferred the charge or,
if that Centenier is not immediately available, another Centenier;”;
(b) for
paragraph (11) there is substituted the following paragraph –
“(11) Where the person whose detention is under
review has been charged before the time of the review, Article 36(1) to
(8) shall have effect in relation to him or her.”.
10 Article 40
amended
In Article 40(1), (2) and (9) of the principal Law, where the
words “36 hours” appear, there are substituted the words
“48 hours”.
11 Article 40A
inserted
After Article 40 of the principal Law there is inserted the
following Article –
“40A Applications under Article 41 or 42
In relation to any application
made under Article 41 or 42, nothing in those Articles shall be taken to
require the Magistrate to sit on a Sunday.”.
12 Article 41
amended
In Article 41 of the principal Law –
(a) for
paragraph (6) there are substituted the following paragraphs –
“(6) An application for a warrant
of further detention may be made at any time before the expiry of 48 hours
after the relevant time.
(6A) This paragraph applies in a case where it is a Sunday or
a day where it is not otherwise practicable for the court to sit at the expiry
of 48 hours after the relevant time.
(6B) Where paragraph (6A) applies –
(a) subject
to paragraph (8), an application for a warrant of further detention may be
made as soon as practicable after the expiry of 48 hours after the
relevant time but before the expiry of 72 hours after the relevant time;
(b) an
officer of the Force of at least the rank of superintendent must, before the
expiry of 48 hours after the relevant time, provide the custody officer
with written authorization to make an application under sub-paragraph (a);
and
(c) the
court must sit during the 24 hours following the expiry of the 48 hours
after the relevant time.”;
(b) in paragraph (7) –
(i) for
the words “In a case to which paragraph (6)(b) applies” there
are substituted the words “Where an application for a warrant of further
detention is made under paragraph (6B)”,
(ii) for
sub-paragraph (b) there is substituted the following sub-paragraph –
“(b) the custody officer
shall –
(i) make
a note in that person’s custody record of the fact that he or she was
kept in police detention for more than 48 hours after the relevant time,
and of the reason why he or she was so kept, and
(ii) as
soon as possible after the expiry of the 48 hours after the relevant time,
notify the Attorney General of the fact that the person has been kept in police
detention for more than 48 hours after the relevant time.”;
(c) in paragraphs (8)
and (9)(b), for the words “36 hours” there are substituted the
words “48 hours”;
(d) for
paragraph (13) there is substituted the following paragraph –
“(13) The period shall not be longer than 48
hours or end later than 96 hours after the relevant time.”.
13 Article 43
amended
In Article 43 of the principal Law –
(a) in paragraph (1)
for the words “Article 36(6)” there are substituted the words
“Article 36(7)”;
(b) in paragraph (2)
for the words “not later than the first sitting after he is charged with
the offence” there are substituted the words “within the period of
48 hours commencing with the time when he or she was charged with the
offence”;
(c) after
paragraph (2) there is inserted the following paragraph –
“(2A) In calculating the period of time specified in paragraph (2),
there shall be disregarded Christmas Day, Good Friday and any Sunday.”;
(d) in paragraph (3)
for the words “on the next day” there are substituted the words
“within the period of time specified in paragraph (2)”;
(e) in paragraph (4)
for the words “not later than the day next following the relevant
day” there are substituted the words “within the period of time
specified in paragraph (2)”;
(f) paragraphs (5)
and (7) are deleted.
14 Article 44
substituted
For Article 44 of the principal Law there is substituted the
following Article –
“44 Power
of arrest for breach of bail
(1) This Article applies to a person granted bail
under this Part.
(2) A police officer may arrest the person if
the person does not comply with a requirement, or breaches any condition of
bail imposed in accordance with Article 30 or 31B.
(3) A person arrested under paragraph (2)
shall be taken to a designated police station as soon as practicable after
arrest.”.
15 Article 48A
inserted
After Article 48 of the principal Law there is inserted the
following Article –
“48A Rules
of court for purposes of Part 5
The power to make rules of
court under Article 29 of the Magistrate’s Court (Miscellaneous
Provisions) (Jersey) Law 1949[15] includes the power to make
rules for the purposes of this Part.”.
16 Article 108
amended
In Article 108 of the principal Law, for the words “aged 17”
there are substituted the words “aged 18”.
SCHEDULE 3
(Article 23)
enactments consequentially amended
1 Loi
(1864) réglant la procédure criminelle amended
In the Loi (1864) réglant la procédure criminelle[16] –
(a) for
Article 20 there is substituted the following Article –
En tout état de la
cause, même lors du renvoi à la Cour Royale, le Juge pourra admettre
le prévenu en liberté provisoire conformément à la
Loi dite Criminal Procedure (Bail) (Jersey) Law 2017[17].”;
(b) in Article 24,
for the words “s’il y a lieu, être admis à caution, la
Cour fixant le montant du cautionnement” there are substituted the words
“être admis en liberté provisoire conformément
à la Loi dite Criminal Procedure (Bail) (Jersey) Law 2017”.
2 Criminal
Justice (Jersey) Law 1957 amended
In the Criminal Justice (Jersey) Law 1957[18] –
(a) in Article 4 –
(i) in
the heading, for the word “recognizances” there is substituted the
word “sureties”,
(ii) in
paragraph (1), for the words “, or a recognizance (caution) is forfeited before, any court” there
are substituted the words “any court, or an amount is forfeited by a
surety,”,
(iii) in
paragraph (1)(a), for the words “due under the recognizance”
there are substituted the words “forfeited by a surety”,
(iv) for
paragraph (1)(d), there is substituted the following
sub-paragraph –
“(d) in the case of a surety,
discharging the amount forfeited or reducing the amount so forfeited.”,
(v) in paragraph (2),
for the words “before which the recognizance is” there are substituted
the words “which orders the amount”,
(vi) in
paragraph (3), for the words “a sum due under a recognizance”
there are substituted the words “an amount forfeited”,
(vii) for paragraph (4),
there is substituted the following paragraph –
“(4) The power conferred by this
Article to discharge an amount forfeited by a surety or reduce such an amount
shall be in addition to any other powers relating to the discharge,
cancellation, mitigation or reduction of any such amount.”;
(b) in Article 5 –
(i) in
the heading, for the word “recognizances” there is substituted the
word “sureties”,
(ii) in
paragraphs (1) and (2), in each place where the words “due under the
recognizance” occur there are substituted the words “forfeited by a
surety”;
(c) in Article 6 –
(i) for
the heading and paragraphs (1) and (2), there are substituted the
following heading and paragraphs –
“6 Payment of fines, forfeited sureties or
securities
(1) Subject to paragraph (2), this
paragraph applies where a person is imprisoned or otherwise detained and –
(a) is
in default of the payment of –
(i) a
fine ordered by the court,
(ii) the
amount forfeited by a surety, or
(b) is
ordered to pay a security under Article 12(1)(a) of the Bail Law.
(1A) Where paragraph (1) applies –
(a) on payment to the Viscount or the governor
of the prison of any fine or amount mentioned in paragraph(1)(a);
(b) where the Viscount has otherwise succeeded
in recovering the full amount of, or an amount equivalent to a defaulted
payment mentioned in paragraph 1(a); or
(c) on depositing with the Viscount the security mentioned in paragraph (1)(b),
such person shall be released
unless the person is in custody for some other cause.
(2) Except between the hours of 8 a.m. and
9 p.m., nothing in paragraph (1) shall oblige the governor of the
prison –
(a) to
accept payment of any fine or amount mentioned in paragraph (1)(a) and
to release any person so detained in default of such payment; or
(b) to
release any person detained pending
the deposit of the security mentioned in paragraph (1)(b).”;
(ii) in
paragraph (3) –
(A) for the words “the
payment of a fine or the amount due under a recognizance” there are
substituted the words “a payment mentioned in paragraph (1)(a)”,
(B) for the words
“due under the recognizance” there are substituted the words
“forfeited by the surety”,
(iii) in
paragraph (5), for the words “paragraph (1)” there are
substituted the words “paragraph (1A)”;
(d) in Article 7,
for paragraph (1) there are substituted the following
paragraphs –
‘Bail Law’ means
the Criminal Procedure (Bail) (Jersey) Law 2017[19];
‘Borstal
institution’ has the meaning given in section 43 of the Prison Act 1952
(c.52) of the United Kingdom before the amendment of that section by the
Criminal Justice Act 1988 (c.33) of the United Kingdom;
‘surety’ has the
meaning given in Article 1(1) of the Bail Law; and
‘youth detention’
has the meaning given in Article 1(1) of the Criminal Justice (Young Offenders)
(Jersey) Law 2014[20].
(1A) References in this Law to ‘amount forfeited by a
surety’ mean the amount ordered as forfeited by a surety under Article 14(6)
of the Bail Law.”.
3 Extradition
(Jersey) Law 2004 amended
In the Extradition (Jersey) Law 2004[21] –
(a) Article 98(2)
to (4) is deleted;
(b) After
Article 98 there is inserted the following Article –
“98A Application of the Criminal Procedure (Bail) (Jersey) Law 2017
(1) Articles 12 to 14,
and 19 and 20 of the Criminal Procedure (Bail) (Jersey) Law 2017[22]
(the ‘Bail Law’) shall, subject to the modifications set out in paragraph (2),
apply for the purposes of this Part as if a person whose extradition is
requested were a defendant within the meaning of the Bail Law.
(2) In Article 12(7)
and (9) of the Bail Law, for the words ‘Article 11’ there are
substituted the words ‘Article 98(1) of the Extradition (Jersey) Law 2004[23]’.”;
(c) in
Article 101(2) and 102(3), for the words “as soon as is reasonably
practicable” there are substituted the words “within 48 hours
of his or her arrest”;
(d) after
Article 102 there is inserted the following Article –
“102A References
to period of 48 hours
In
determining for the purposes of Article 101(2) and 102(3) when the period
of 48 hours expires, there shall be disregarded Christmas Day, Good Friday
and any Sunday.”.
4 Prison
(Jersey) Rules 2007 amended
In Rule 50(1) of the Prison (Jersey) Rules 2007[24], for sub-paragraph (b),
there is substituted the following sub-paragraph –
“(b) providing a security or
proposing a surety as a condition of the prisoner’s bail in accordance
with Article 12 of the Criminal Procedure (Bail) (Jersey) Law 2017[25].”.
5 International
Criminal Court (Jersey) Law 2014 amended
In Article 14 of the International Criminal Court (Jersey) Law 2014[26], for paragraphs (2) to
(4), there are substituted the following paragraphs –
“(2) Articles 9,
11(2), 12(1) to (6), (10) and (11), 13 and 14, and Articles 17 to 20 of
the Criminal Procedure (Bail) (Jersey) Law 2017[27]
(the ‘Bail Law’) shall, subject to the modifications set out in
sub-paragraphs (a) and (b), apply for the purposes of this Article as if a
person to whom this Part applies were a defendant within the meaning of the
Bail Law –
(a) in Articles 9, 11(2),
12 to 14 and Articles 17 and 18 of the Bail Law, any reference to
‘court’ shall be construed as a reference to the ‘Magistrate’;
(b) For Article 12(1)
of the Bail Law there is substituted the following paragraph –
‘(1) Subject to Article 15(c)
of the International Criminal Court (Jersey) Law 2014[28],
before a defendant is granted bail the Magistrate may,
as a condition of bail, require the defendant to do either or both of the
following –
(a) provide
a security for that defendant’s surrender to custody which shall
be –
(i) of such an amount as the Magistrate
may order, and
(ii) deposited with the Viscount before the
defendant is released from the custody of the Magistrate;
(b) propose
a person who agrees to stand as surety to secure the defendant’s surrender
to custody.’.
(3) A person granted bail under this Law is
under a duty to surrender to the custody of the Magistrate, and must not absent
himself or herself from the Magistrate’s Court without the
Magistrate’s permission.
(4) If the Magistrate denies the person bail on
the first occasion he or she appears before the Magistrate, the person may, on
the next occasion he or she appears before the Magistrate, support an
application for bail with any argument as to fact or law that the person wishes
to put forward (whether or not he or she has advanced that argument on the
first occasion).
(5) On any subsequent occasion that the person
applies for bail, the Magistrate need not hear arguments as to fact or law
which he or she has heard previously.
(6) Where the Magistrate –
(a) grants or denies a person bail;
(b) appoints a time or place or a different time
or place for a person to surrender to custody; or
(c) imposes, or varies any of the conditions of
bail,
the Magistrate shall make a
record of the decision in accordance with Article 10(1) of the Bail Law
and, shall cause the person to be given a copy of the record of the decision
and reasons for denying bail or imposing or varying conditions of that bail, as
soon as practicable after the record is made.”.
6 Connétables
(Miscellaneous Provisions – Consequential Amendments) (Jersey) Regulations 2014
amended
In the Connétables (Miscellaneous Provisions –
Consequential Amendments) (Jersey) Regulations 2014[29] –
(a) Regulation 29(i)
to (l) is deleted;
(b) in Regulation 38(2),
in both places where the words “to (l)” occur there are substituted
the words “and (h)”.