Bail v gaol

The Criminal Justice and Immigration Act 2008 (CJIA) contains important new provisions on electronic monitoring of accused persons. The most important of these changes is that those who are subject to a nine-hour curfew, which is electronically monitored, may be entitled to receive credit for the period of time spent on remand on bail, namely the equivalent of half a day in custody.

Electronic monitoring ('tagging') of accused persons and offenders is playing an increasingly important part of the criminal justice system in terms of bail and sentencing. The further significance and prevalence of this is entrenched within the provisions in sched.11 of the CJIA, which was brought into force on 3 November 2008 (Commencement No.3 and Transitional Provisions) Order 2008 (SI 2008 No.2712).

Under the new Act, s.3AA (in the case of a child or young person), s.3AB (in the case of other persons) and s.3AC (in all cases) substitute s.3 (6ZAA) of the Bail Act 1976. The latter originally made provision for electronic tagging only for juveniles on bail. The amendment to this provision in the CJIA (set out in sched.11 which adds s.3AB to the Bail Act 1976), governs the imposition of electronic monitoring requirements in the case of persons who have attained the age of 17.

Such a requirement may be imposed only if the court is satisfied that, without the electronic monitoring requirement, the person would not be granted bail (s.3AB(2)). Where the accused is aged 17, a youth offending team must have informed the court that the imposition of electronic monitoring requirements will be suitable in his or her case (s.3AB(4)).

The fundamental conditions for the imposition of electronic monitoring requirements in the case of children and young persons and other persons are discussed further in more detail below.

Children and young persons

Section 3AA of the Bail Act 1976 provides that a child or young person shall not be subject to a requirement for electronic monitoring unless each of the following four (summarised) conditions are satisfied:

1. the child or young person has attained the age of 12 years;

2. the child or young person is charged with or has been convicted of a violent or sexual offence, or an offence punishable in the case of an adult with imprisonment for a term of 14 years or more; or he is charged with or has been convicted of one or more imprisonable offences which, together with any other imprisonable offences of which he has been convicted in any proceedings, amount, or would if he were convicted of the offences with which he is charged amount to a recent history of repeatedly committing imprisonable offences while remanded on bail or to local authority accommodation;

3. the court has been notified by the Secretary of State that electronic monitoring arrangements are available in each local justice area which is a relevant area; and is satisfied that the necessary provision can be made under those arrangements;

4. a youth offending team has informed the court that in its opinion the imposition of such a requirement will be suitable in the case of the child or young person.

Other persons

Section 3AB of the Bail Act 1976 provides that in respect of 'other persons', there are three conditions which must be satisfied before a person who has attained the age of 17 can be subject to electronic monitoring.

These are summarised below:

1. the court is satisfied that without the electronic monitoring requirements the person would not be granted bail;

2. the court is satisfied that the necessary provision for dealing with the person concerned can be made under arrangements for the electronic monitoring of persons released on bail that are currently available in each local justice area which is a relevant area;

3. if the person is aged 17, a youth offending team has informed the court that in its opinion the imposition of electronic monitoring requirements will be suitable in his case.

Credit for time spent on remand on bail 'tagged'

Certainly from a practitioner's point of view the provisions contained in ss 21-23 and sched.6 of the CJIA along with the The Remand on Bail (Disapplication of Credit Period) Rules 2008, which came into force on 3 November 2008, are critical when now dealing with bail. This is because ss 21-23 enable courts to take into consideration the time an offender has spent on bail with a 'tagged' curfew when passing a custodial sentence.

Sections 21-23 amend the Criminal Justice Act 2003 by inserting a new s.240A. In terms of practical application of the additional scheme for awarding credit, in addition to time spent in custody, credit may be awarded for time spent on bail while subject to tagging, provided the offence was committed on or after 5 April 2005 and the defendant was remanded on bail on or after 3 November 2008, i.e. when the sections came into force.

The Act therefore does not carry a retrospective element, although sched.6 sets out the same conditions for cases where the offence was committed before 5 April 2005 (under the Criminal Justice 1967) where the defendant was remanded on bail on or after 3 November 2008, thereby benefiting defendants charged with either-way or indictable only offences who may have only recently been apprehended regarding 'historic' charges.

Credit will be given if:

1. the defendant was remanded on bail on or after 3 November 2008;

2. the defendant was subject to a curfew of not less than nine hours in any day;

3. the curfew was electronically monitored under s.3(6ZAA) of the Bail Act 1976.

The period of credit will equal half the number of days spent subject to the relevant conditions of bail as defined above and, where applicable, rounding up to the nearest whole number.

The number of days spent subject to those conditions is calculated by including the first day the defendant is subject to the conditions (even if that is not a full day and for that reason does not have the full nine hour curfew that day), but excluding the last day he is subject to the conditions. Should the court give credit for the whole of the credit period or a shorter period of time, it must state the number of days the defendant was subject to the relevant conditions and the number of days it will give credit for in open court.

Where credit is not given

The court, when passing a custodial sentence (which includes a suspended sentence), will give credit which will be the length of the credit period, unless:

1. rules made by the Secretary of State prohibit this (s.4A CJIA) (thus far the Remand on Bail Rules are the only rules made under this section), or

2. the court feels it just in the circumstances not to give the credit (s.4B CJIA).

In deciding whether it is just, the court should consider whether the defendant has broken the relevant bail conditions during the period of remand (s.7 CJIA).

Should the court feel either s.4A or s.4B apply, the court can either give no credit or credit for a period less than the credit period (s.5 CJIA). The court must give its reasons for the decision.

The Remand on Bail Rules state that credit will not be given in the following circumstances:

1. where two or more periods of imprisonment have been passed either consecutively or concurrently and the time spent on bail was taken into consideration in relation to one of those other periods of imprisonment (Rule 2);

2. where on any day while the defendant was subject to the relevant bail conditions he was also subject to another 'tagged' curfew as part of early release from prison or a young offender's institution, or as part of a licence condition having been released from custody, or as part of a community order or suspended sentence, or as part of any other order imposed by a court or the Secretary of State resulting from a conviction (Rule 3);

3. where on any day where the defendant was subject to the relevant bail conditions, the defendant was also subject to temporary release under Rule 9 of the Prison Rules 1999, Rule 5 of the Young Offender Institution Rules, or Rule 5 of the Secure Centre Rules 1990.

The upshot

The sentencing credit available to 'tagged' persons is an important addition to the criminal justice system.

First, by allowing bail, it saves public expenditure by reducing the number of persons in prison awaiting trial or sentence, while restricting a suspect's liberty.

Secondly, if convicted a person who has been 'tagged' may, in certain circumstances, qualify for a reduced term of imprisonment or detention.

Therefore, practitioners should be encouraged wherever possible to utilise the provisions introduced under the Criminal Justice and Immigration Act 2008.