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Immigration and Asylum Bill - continued        House of Lords

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  PART III
  BAIL
 
Routine bail hearings
Bail hearings for detained persons.     36. - (1) This section applies if a person is detained under any provision of the 1971 Act.
 
      (2) The Secretary of State must arrange a reference to the court for it to determine whether the detained person should be released on bail.
 
      (3) Subsection (2) does not apply if the detained person-
 
 
    (a) is also detained otherwise than under a provision mentioned in subsection (1); or
 
    (b) notifies the Secretary of State, in writing, that he does not wish his case to be referred to a court under this section.
      (4) The Secretary of State must secure that a first reference to the court is made-
 
 
    (a) in the case of a reference to the Commission, in accordance with rules; and
 
    (b) in any other case, no later than the eighth day following that on which the detained person was detained.
      (5) If the detained person remains in detention, the Secretary of State must secure that a second reference to the court is made-
 
 
    (a) in the case of a reference to the Commission, in accordance with rules; and
 
    (b) in any other case, no later than the thirty-sixth day following that on which the detained person was detained.
      (6) A reference under subsection (5) may not be heard by the court before the thirty-third day following that on which the detained person was detained.
 
      (7) The court hearing a case referred to it under this section must proceed as if the detained person had made an application to it for bail.
 
      (8) The court must determine the matter-
 
 
    (a) in the case of a reference to the Commission, in accordance with rules; and
 
    (b) in any other case-
 
      (i) on a first reference, before the tenth day following that on which the person concerned was detained; and
 
      (ii) on a second reference, before the thirty-eighth day following that on which he was detained.
      (9) Subsection (8) does not apply if the detained person has been released or has given notice under subsection (3)(b).
 
      (10) If it appears to the Secretary of State that there has been a failure to comply with subsection (4) or (5), he must refer the matter to the court, and the court must deal with the reference, as soon as is reasonably practicable.
 
      (11) If it appears to the Secretary of State that there has been a failure to comply with subsection (8), he must notify the court concerned, and the court must deal with the matter, as soon as is reasonably practicable.
 
      (12) In this Part "court" means-
 
 
    (a) if the detained person has brought an appeal under the Immigration Acts, the court or other appellate authority dealing with his appeal;
 
    (b) in the case of a detained person to whom section 3(2) of the Special Immigration Appeals Commission Act 1997 applies (jurisdiction in relation to bail for persons detained on grounds of national security), the Commission; and
 
    (c) in any other case, such magistrates' court as the Secretary of State considers appropriate or, in Scotland, an adjudicator.
      (13) In this Part "Commission" means the Special Immigration Appeals Commission.
 
      (14) Rules made by the Lord Chancellor under section 5 of the Special Immigration Appeals Commission Act 1997 may include provision made for the purposes of this section; and in subsections (4), (5) and (8) "rules" means rules made by virtue of this subsection.
 
      (15) This section does not affect any other provision under which the detained person may apply for, or be released on, bail.
 
Location of bail hearings.     37. - (1) The Secretary of State may, in relation to a particular case or class of case, direct that the hearing of a reference under section 36 is to be at a specified place.
 
      (2) The places that may be specified include, in particular-
 
 
    (a) any place at which a court sits;
 
    (b) any place at which appeals under this Act are heard;
 
    (c) detention centres;
 
    (d) prisons; or
 
    (e) any particular premises or rooms within a place of a kind mentioned in paragraphs (a) to (d).
      (3) A direction under subsection (1) has effect notwithstanding any other direction which may be given as to the place in which the court is to sit.
 
      (4) A direction under subsection (1) requires the approval of the Lord Chancellor.
 
      (5) "Specified" means specified in the direction.
 
Power to grant bail.     38. - (1) On a reference under section 36, the court may release the detained person on bail.
 
      (2) The court may require a recognizance or, in Scotland, a bail bond to be entered into before the detained person is released.
 
      (3) Bail under this section is subject to a condition requiring the person bailed to appear before an immigration officer-
 
 
    (a) at a time and place specified by the court; or
 
    (b) at such other time and place as may be notified to him in writing by an immigration officer.
      (4) Bail may be granted subject to such other conditions as appear to the court to be likely to result in the appearance of the person bailed at the required time and place.
 
      (5) If bail is granted under this section by the Commission, the condition mentioned in subsection (3) may require him to appear before the Commission instead of an immigration officer.
 
      (6) A recognizance taken under this section may be with or without sureties, as the court may determine.
 
      (7) If a court has power under this section to release a person on bail, it may, instead of taking the bail, fix the amount and conditions of the bail (including the amount in which any sureties are to be bound) with a view to the bail being taken subsequently by any such person as may be specified; and on the recognizance or bond being so taken, the person to be bailed must be released.
 
Forfeiture.     39. - (1) If it appears to a court which has taken a recognizance under section 38 that the recognizance has been forfeited, it may-
 
 
    (a) by order declare the recognizance to be forfeited; and
 
    (b) order any person bound by the recognizance (whether as principal or surety) to pay the sum in which he is bound or such part of that sum, if any, as the court thinks fit.
      (2) If the court which makes an order under subsection (1) is not a magistrates' court, it must-
 
 
    (a) specify a magistrates' court which is, for the purposes of collection, enforcement and remission of the sum forfeited, to be treated as the court which ordered the forfeiture; and
 
    (b) as soon as practicable give particulars of the recognizance to-
 
      (i) in England and Wales, the justices' chief executive appointed by the magistrates' court committee whose area includes the petty sessions area, or
 
      (ii) in Northern Ireland, the clerk of petty sessions for the petty sessions district,
 
    for which the specified court acts.
      (3) Any sum collected as a result of subsection (2)(a) must be paid to the Lord Chancellor.
 
      (4) The Lord Chancellor may, with the approval of the Treasury, make regulations as to the times at which and the manner in which accounts for, and payments of, sums collected as a result of subsection (2)(a) must be made and for the keeping and auditing of accounts in relation to such sums.
 
      (5) If a person fails to comply with any of the conditions of a bail bond taken by a court under section 38, the court may declare the bail to be forfeited.
 
      (6) Any bail forfeited by a court under subsection (5)-
 
 
    (a) must be transmitted to the sheriff court having jurisdiction in the area where the proceedings took place; and
 
    (b) is to be treated as having been forfeited by that court.
Power of arrest.     40. - (1) An immigration officer or constable who has reasonable grounds for believing that a person released on a reference under section 36 has broken, is breaking or is likely to break any condition on which he was bailed, may arrest him without a warrant.
 
      (2) Subsection (3) applies if a recognizance with sureties was taken.
 
      (3) If an immigration officer or constable is notified in writing by a surety-
 
 
    (a) of his belief that a person released on a reference under section 36 is likely to break the condition that he must appear at the time and place required; and
 
    (b) of the surety's wish, for that reason, to be relieved of his obligations as a surety,
  the officer or constable may arrest the person released without a warrant.
 
      (4) Subsection (5) applies if-
 
 
    (a) a justice of the peace is, by written information on oath, satisfied that there are reasonable grounds for suspecting that a person liable to be arrested under this section is to be found on any premises;
 
    (b) in Scotland, the sheriff or a justice of the peace is by evidence on oath so satisfied; or
 
    (c) in Northern Ireland, a justice of the peace is by written complaint on oath so satisfied.
      (5) The justice of the peace or the sheriff may grant a warrant authorising any immigration officer or constable to enter, if need be by reasonable force, the premises named in the warrant for the purpose of searching for and arresting the person concerned.
 
      (6) A person arrested under this section must, if required by a condition on which he was released to appear before an immigration officer within 24 hours after his arrest, be brought before an immigration officer within that period.
 
      (7) A person arrested under this section must, if he was released under section 38 by the Commission, be brought before it within twenty-four hours after his arrest.
 
      (8) If neither subsection (6) nor (7) applies, a person arrested under this section must, as soon as is practicable after his arrest, be brought before-
 
 
    (a) a justice of the peace acting for the petty sessions area in which he was arrested;
 
    (b) in Scotland, an adjudicator or, if that is not practicable within 24 hours after his arrest, the sheriff; or
 
    (c) in Northern Ireland, a magistrates' court acting for the county court division in which he was arrested.
      (9) Subsections (10) and (11) apply in relation to an arrested person dealt with under subsection (7) or (8).
 
      (10) The court or person dealing with the matter may, if of the opinion that the arrested person has broken or is likely to break any condition on which he was released-
 
 
    (a) give a direction that the arrested person be detained under the authority of the person by whom he was arrested;
 
    (b) release him on his original bail; or
 
    (c) release him on a new recognizance (with or without sureties) or on new bail.
      (11) If not of that opinion, that court or person must release the arrested person on his original bail.
 
 
Procedure
Procedure.     41. - (1) Any rules made in connection with bail hearings resulting from any provision of, or made under, this Part must include provision requiring the Secretary of State to notify-
 
 
    (a) the detained person who is the subject of the hearing of a reference under section 36, and
 
    (b) if the Secretary of State is aware that that person will be represented at the hearing (whether or not by an authorised advocate), the person who will be representing him at the hearing,
  of the date, place and time of the hearing as soon as is reasonably practicable after the Secretary of State is given that information by the magistrates' court.
 
      (2) The detained person may, on the first occasion on which a court considers-
 
 
    (a) on a reference under section 36, or
 
    (b) on an application under the 1971 Act, the Asylum and Immigration Appeals Act 1993 or the Special Immigration Appeals Commission Act 1997,
  whether to release him on bail, advance any argument as to fact or law.
 
      (3) But on any subsequent such reference or application the court need not hear any argument as to fact or law that that court has heard previously.
 
      (4) A magistrates' court dealing with a reference under section 36 must sit in open court unless it considers that the interests of the administration of justice require it not to do so.
 
      (5) Any proceedings before a magistrates' court or the sheriff under this Part may be conducted-
 
 
    (a) on behalf of the Secretary of State, by a person authorised by him, or
 
    (b) on behalf of the detained person, by a person nominated by him,
  even though that person is not an authorised advocate.
 
      (6) "Authorised advocate"-
 
 
    (a) in relation to England and Wales, has the meaning given by section 119 of the Courts and Legal Services Act 1990;
 
    (b) in relation to Scotland, means an advocate or solicitor;
 
    (c) in relation to Northern Ireland, means a barrister or solicitor.
      (7) "Rules" means rules made by the Lord Chancellor under section 144 of the Magistrates' Courts Act 1980 or under any corresponding provision having effect in Northern Ireland.
 
Use of live television links at bail hearings.     42. - (1) On a reference under section 36, the court may, after hearing representations from the parties, direct that the detained person is to be treated as being present in the court if he is able (whether by means of a live television link or otherwise) to see and hear the court and to be seen and heard by it.
 
      (2) If, after hearing representations from the parties, the court decides not to give a direction, it must give its reasons for refusing.
 
      (3) The court may not give a direction unless-
 
 
    (a) it has been notified by the Secretary of State that facilities are available in the relevant institution which will enable the detained person to see and hear the court and to be seen and heard by it; and
 
    (b) the notice has not been withdrawn.
      (4) "Relevant institution" means the institution in which the detained person will be detained at the time of the bail hearing.
 
 
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Prepared 18 June 1999