The Bail (Amendment) Act 1993 is about to be brought into operation and will, for the first time, give prosecution a right of appeal against grants of bail.

The rules made under the Act are far from satisfactory, and appear to allow the appeal to be dealt with in the absence of the appellant.

Solicitors will wish to consider whether they can, in the time available, apply for their client to be present at such appeals.

Clients may otherwise be deprived of the bail granted to them in the magistrates' court, without hearing the proceedings in question.The prosecution will have a right to appeal against the grant of bail where the offence is punishable by a term of imprisonment of five years or more, or is an offence of taking a motor vehicle or aggravated vehicle taking under ss.12 and 12A of the Theft Act 1968.The prosecution will not be able to use that power unless it raises objections to bail in the magistrates' court.

If the prosecution wishes to use the power, it must give oral notice of appeal at the conclusion of the proceedings in which bail has been granted and before the release from custody of the person concerned.

It must then confirm that appeal by written notice, served on the magistrates' court and the person concerned , within two hours of the conclusion of such proceedings.Whilst a valid notice of appeal is in existence the defendant is remanded in custody.

The hearing of the appeal must begin within 48 hours from midnight on the day on which the oral notice of appeal was given.

However, there is excluded from that time all weekends and any public holiday.It is understood that court administrators are making arrangements to hear these appeals promptly within the 48-hour limit.

Notwithstanding the additional work for defence solicitors caused by these provisions, the Lord Chancellor has not been persuaded that there is any need to make amendments to the standard fees regime in magistrates' courts.The weakening of the effect of the custody time limit rules has been continued by the decision of the court in R v Waltham Forest Magistrates' Court, ex p.

Lee and Lee [1993] Crim LR 522.

The defendant was originally charged with attempted murder, but this was later withdrawn and a new offence under s.18 of the Offences Against the Person Act 1861 was preferred.

Time was held to run from the date of the new charge, notwithstanding that there were common facts to both.

The court merely indicated that if a new charge was preferred solely for the purpose of defeating custody time limits, arguments as to abuse of process would be available.SentencingThe Magistrates Association has re-issued its 'Guide to sentencing in the magistrates' courts' to take account of the changes effected by the Criminal Justice Act 1993.

There are significant differences from the earlier edition.For each offence, an entry point is now suggested as an appropriate 'starting point' subject to argument and the consideration of specific aggravating and mitigating factors.

The guide makes clear, however, that this is only the first stage of the process.

The Bench must then go on to consider any personal mitigating factors.Thus there are two clear ways in which defence solicitors can argue that the original entry point is not an appropriate penalty.

The first is to show a lack of aggravating factors or the existence of mitigating factors, so reducing the seriousness of the offence.

The second is to argue that the personal mitigating factors, under s.28 of the Criminal Justice Act 1991, allow a lower penalty than would otherwise have been the case.The new edition also assumes a not guilty plea.

In any case in which a defendant enters a timely guilty plea there should be an immediate discount of about one third of the penalty.

For the time being it will be prudent to remind the Bench of this change in approach taken by the guide.The guide also reflects the new law on the imposition of fines with the abolition of the unit fine system.

Where a fine is the entry point, a guideline figure is given for an offence of average seriousness.

The Bench is advised to consider aggravating and mitigating factors, together with a personal mitigation.If the fine is still the appropriate penalty, they should then go onto consider the offender's means.

If of below average means, the amount should be reduced to a level which the offender can realistically be expected to pay and, if of above average, means there is a presumption that the fine should be increased.

This advice reflects the provisions of the substituted s.18 of the Criminal Justice Act 1991.If, at the time of fixing the fine, the court had insufficient information and acted on its best estimate, the Act retains a power to re-list the matter rather than insist that there be an appeal (substituted s.21).

The court may also make a financial circumstances order so that means forms have to be completed following conviction or the notification of a written plea of guilty.The other major change brought about by the Criminal Justice Act 1993 was the extent to which reference could be made to previous convictions.

The court may also take into account any failure to respond to a previous sentence, and is not limited to a consideration of one or more offences.

However, the principle behind the Act remains: the court must assess the seriousness of the particular matter with which it is dealing.

It is merely enabled by the new s.29 of the Criminal Justice Act 1991 to consider whether any previous conviction or failure to respond does affect that seriousness.

The existence of a previous conviction is of itself of no importance even under the amended provision, except to the extent that it does make the particular offence more serious.The most likely result of the change is an increased number of committals for sentence.

In considering whether an 'either way' case can be tried summarily, the magistrates can only have regard to the facts of the offence itself and must disregard any personal matters.

They can only commit for sentence if new matters come to light.

However, under the new law, the existence of previous convictions may throw a new light on the facts as originally put and enable a court to commit for sentence.

Solicitors with clients in custody will therefore wish to advise with care as to the appropriate election, as clients in custody still prefer to be committed for trial rather than for sentence.In the guide, magistrates are reminded that an offence committed whilst on bail shall be treated as an aggravating factor and that an overall sentence should be kept in proportion to the totality of the offending behaviour.

They are reminded that all penalties must be commensurate with seriousness, except where the protection of the public from serious harm is involved for violent or sexual offences only.

They are advised that these cases should usually be committed to the Crown Court.

In these cases there is an ability to impose a longer than normal sentence.The power to do so was considered in R v Bowler [1993] Crim LR 799, which indicates just how extensive the court powers are.

Defence solicitors should take care that they do not emphasise factors which could lead to a sentence under these provisions - s.2 (2)b of the Criminal Justice Act 1991 being used.

The appellant was guilty of a minor indecent assault upon a child.

He had eight appearances for indecent assaults on adult women, usually by touching or grabbing.

None of the offences was prolonged and none involved any attempt at penetration.However, a sentence of six years' imprisonment was upheld because the appellant was of limited intelligence, had no insight into his behaviour, and had undergone drug treatment but was not willing to undergo further such treatment.The court pointed out that it could take account of all reports available and of any previous convictions, not being restricted to those linked to seriousness.

It took the view that where this section was brought into operation, the mitigating factors - a guilty plea, the fact that the offence was impulsive, and the appellant's limited intelligence - would not have the same weight as where the court was considering a sentence commensurate with seriousness.Standard feesA further aspect of standard fees in the magistrates' court has now been clarified.

Many cases begin with the allegation of an 'either way' offence.

On revi ew, the Crown Prosecution Service substitute a summary only matter.

In the meantime, legal aid may have been obtained for the original charge.

The question arises then as to the appropriate category into which to place this case upon its conclusion, say on a guilty plea to the summary matter.It is now clear that this case will fall into category 3.

'here can only be two types of proceedings in a magistrates' court.

Either the proceedings are summary or they are committal proceedings.

'he moment a charge is laid which can be tried 'either way' there will be committal proceedings.

'hus, this group of cases falls into category 3 as being committal proceedings which are discontinued or withdrawn prior to the fixing of a s.6(1) committal.