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The Bail Amendment Bill – Thin Edge of the Wedge?

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From Rethinking Crime and Punishment

"The trouble with fighting for human freedom is that one spends most of one’s time defending
scoundrels. For it is against scoundrels that oppressive laws are first aimed, and oppression must be
stopped at the beginning if it is to be stopped at all.”
H L Mencken


As a Police Cadet in 1958, intent on surviving the boot camp known as the Police Training School,
(and based at the Trentham Military Camp), we were drilled in criminal law, administration and
practise for 18 months. It was an unrelenting routine, involving a never ending cycle of rote
learning, and oral regurgitation. There were moments however, when a subject was of sufficient
gravitas to warrant a full and earnest discussion I recall a couple of ideas that were drilled more
than once.


Principle One: The Presumption of Innocence


The first was that people were presumed innocent until proven guilty. One could be assured of a
good mark in an evidence exam, if the following was memorised and repeated.

Throughout the web of the English Criminal Law one golden thread is always to be seen, that it is
the duty of the prosecution to prove the prisoner’s guilt … No matter what the charge or where the
trial, the principle that the prosecution must prove the guilt of the prisoner is part of the common
law of England and no attempt to whittle it down can be entertained.
Woolmington v DPP [1935] AC 462, 481-482.

The point made by our Police instructors, was that the burden of proof lay with the Police, and no
one else. Inability on the part of the Police to establish guilt was regarded as either ineptitude or
sloth. Where it could not be established, suspects should not be charged. Full stop.

Principle Two: Judicial Independence


The second idea was that the role was to preserve peace and enforce the law - preferably in that
order. The Police could not lay claim to the powers of the judiciary – nor should we in any way,
endeavour to influence or interfere in the judicial process. It was the separation of Police powers
from the exercise of judicial processes that characterised a democratic society – rather than a
police state.

Individualised justice, one of the basic sentencing principles, could be attained only if a judicial
officer possessed a broad sentencing discretion that enabled him or her to consider and balance
multiple facts and circumstances when sentencing an offender.

The principle of individualised justice required the court to impose a sentence that is just and
appropriate in all the circumstances of a particular case. Mahoney ACJ stated that “if justice is not
individual, it is nothing” (Kable v Director of Public Prosecutions (1995) 36 NSWLR 374, 394).

The Bail Amendment Bill undermines both ideas. Firstly, it reverses the burden of proof in some
cases. Secondly, it limits and restricts judges in the exercise of their functions. Most importantly, it
will not reduce crime or reoffending.


The Bill’s origins lie in an election commitment made by the National Party in 2008, to review a
number of specific aspects of the bail system. Under instruction from its Minister, the Ministry of
Justice reviewed the Bail Act, with a view to ‘plugging the gaps’, including:

  • Relatively high rates of offending on bail by defendants charged with serious class A drug offences.
  • The potential public safety risk and negative impact on victims and/or their friends and family that may result if defendants charged with murder or other serious violent or sexual offences are released on bail.
  • Relatively high rates of offending on bail by defendants aged 17 to 19 years old who have previously been imprisoned.
  • Lack of powers for Police to effectively enforce bail conditions imposed on young defendants under 17 years old.
  • A perception that defendants may be granted bail in return for providing information to Police.
  • The disruption to Court schedules and waste of resources arising from defendants failing to answer bail.
  • An outdated approach to specific offences that are bailable as of right.
  • The possibility for inconsistent practices to develop throughout the country as a result of electronically monitored bail being imposed under a generic power for the Court to impose bail conditions.

The Bail Amendment Bill blatantly disregards long held principles of justice which define us as a
democracy. Those issues and objections to it are clearly set out in the submissions made to the
Law and Order Select Committee. The following submissions bring attention to those issues:


NZ Law Society
Auckland District Law Society
Human Rights Commission

Children’s Commissioner
Just Speak
Robson Hanan Trust

Misleading Information

One of the unsatisfactory features of the way in which this Bill was presented to the public, was the
inadequate analysis in the Regulatory Impact Statement (RIS). RIS’s are prepared to ensure that
the legislative process is open and transparent, and accompany the Bill when it is first tabled in
Parliament. They are expected to provide a high-level summary of the problem being addressed,
the options and their associated costs and benefits, the consultation undertaken, and the proposed
arrangements for implementation and review.

 

But not on this occasion. Let me take but one example.


Class A Defendants
The RIS noted that in the period 2004 – 2009, 34% of defendants charged with serious class A drug
offences offended while on bail (twice the general rate of offending on bail, which was 17%). The
offending on bail was reported as being relatively serious. Almost half (46%) of the defendants who
offended on bail received a sentence of imprisonment for that offending, and almost one third
(27%) of those prison sentences were for two years or longer.

The solution offered by the Bill was to reverse the burden of proof, and reduce offending on bail by
an estimated 7% . The savings of $92,000 per year would be offset by the cost of keeping
defendants in remand who would not have offended on bail or would not be convicted of the
offence charged. That additional cost was estimated at $774,000 per year, or the equivalent of 8.5
prison beds

Rethinking’s Wayne Goodall carried out his own analysis, own and revealed information which
blew that proposition out the door. Class A defendants spent an average of 371 days on bail - a
year and a week. The 371 days is just an average, somewhere round a half the defendants would
have spent more time than that on bail. For some it would be in the order of 18 months to two
years and sometimes longer. In other words, they were offending at twice the rate of other
defendants because they were on bail for more than twice as long. If one was serious about
reducing the offending rate for Class A defendants, then the answer would be to speed up the trial
process.

How bad is the offending on bail for Class A defendants? Wayne’s investigation showed that:

  • Between 2004 and 2011, 801 Class A defendants offended on bail;
  • 82 of the 801 defendants (about 10%) were charged with violent offences, ranging from common assault to murder.
  • Of the 82 who violent offences, only 31 were sentenced to imprisonment;
  • Of the 31, 20 received a sentence of 6 months or less;
  • Only 11 (or a bit more than one per year) could be described as a serious violent offence.

In other words, to achieve a reduction in serious violent offending from 1 to nil, it will be necessary
to lock up 8 or 9 people for a year, who are either not guilty or whose offending is not sufficient to
warrant imprisonment. According to the Ministry, it will only remove 21 of 367 people from the
bail pool every year – there is only a 6% chance that remanding the potential violent offender in
custody will prevent a serious crime being committed.

Read Wayne Goodall’s NZ Herald Opinion Piece

What will this achieve? According to the Minister of Justice, the Hon Judith Collins, this provision
will prevent further offences being committed such as methamphetamine dealers using their
time on bail to cook up large amounts of the drug before sentencing.
http://www.radionz.co.nz/news/political/112153/justice-minister-backs-proposed-new-bail-laws


That can be achieved now, if the Police are able to show that the offender intends to carry on
offending. Otherwise, it is likely that a whole lot of people will end up in custody for a year or
more, who are not at risk of reoffending, and who may not be convicted of an offence. It then
raises the question of whether the Police might start using this provision to put suspects up before
the Court in the knowledge that at the very least, they will be remanded in custody for a year,
whether or not there is sufficient evidence to prove beyond reasonable doubt that they were
guilty.


We achieve this non-result by reversing the burden of proof – “the one golden thread of English
criminal law” - that is one hell of a price to pay.

Why Are We Behaving Like This?
The problem we have is that the Bail Amendment Bill was designed to make it harder for those
accused of serious offences to get bail.


By contrast, the NSW Law Reform Commission has recently conducted a review of its bail laws,
describing it in this way:

“While the Bail Act has been amended often, those amendments have not addressed the
basic principles that apply to bail, or the evidence about how the law is working. We have
gone back to basic principles and asked: what purpose does bail law serve in the context of
the criminal justice system and how should that purpose be reflected in legislation? We have
reviewed the evidence about the working of bail law, and the effect it is having on the
number of people in prison on remand.” 1


The bail review included a consideration of the impact on young people, and whether special
provisions should apply to vulnerable people including Aboriginal people and Torres Strait
Islanders, cognitively impaired people and those with a mental illness. 2.


That is the sort of review required in New Zealand, rather than a piecemeal approach to the
legislation which is intended to appease the punitive instincts of a punishing public. The good
news is that there is now a government framework within which such a review is possible.

____________________________________________________________________________


1 NSW Law Reform Commission, ‘Report 133 – Bail’ (April 2012)p.2. www.lawlink.nsw.gov.au/lrc
2 Supra, p.1.
The Government’s Reducing Crime and Reoffending Action Plan,
Last month, the government launched its ‘Better Public Services’ Reducing Crime and Reoffending
Action Plan, which moved the government’s agenda away from a decade of focus on crime control
and crime suppression, to a justice sector wide approach to crime reduction. If the government is
to be consistent, one would expect it to look at bail in a different way. Rather than consider the
issue of bail from the perspective of how it might tighten the conditions and make it more difficult
for offenders to be granted bail, the Action Plan begs a different question – how can we apply bail
in a way that reduces reoffending and prevents crime? In that regard, the Bail Amendment Bill is
an anachronism.