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Not quite everything you ever wanted to know about bail

by Graeme 3

Bail has been in the news quite a bit recently. You might have an idea how it works, or be surprised that someone got it, or someone else didn't, but how does it all work? Put simply, bail is a legally enforceable promise to turn up to court to face charges.

And despite what Simon Power or the Sensible Sentencing Trust say:

Bail is a right!

It is a right that is subject to justifiable limitations, it is a right that can be taken away from certain people or in certain circumstances, but it is a right.

It's not an indulgence or privilege granted by Parliament to the grateful masses, but a tangible manifestation of the presumption of innocence. We are humans, and we are legally entitled to be in New Zealand, so we are entitled to be free. That right remains until someone proves in a court that we have committed a crime and should be sentenced to imprisonment for it.

But whilst this is a fundamental starting-point, and should inform any consideration of bail, it doesn't get us very far – a decision to refuse bail is naturally always one in which the judge has decided (rightly or wrongly) that the right to be free should be taken away.

The first point to make is that bail is highly fact dependant. Whether someone is released, bailed on conditions, or remanded in custody turns on the facts of an individual case – the accused's history and circumstances, the nature of the alleged defending, the views of any alleged victims – pretty much anything relevant. It is also discretionary – unlike guilt or innocence, given the same facts, it is possible that two different judges might properly come two different decisions. It can be difficult looking from the sidelines to discern why one case has gone one way, while another had a different result.

So how does it work?

Bail is pretty simple. It's governed by the Bail Act 2000 – a remarkably straightforward piece of legislation (for a piece of legislation).

Once someone is arrested, the police have to lay charges pretty quickly (although – as we've seen recently – they don't have to lay all charges right at the beginning). If the police don't lay charges they have to release the person. If the police do lay charges, then they've a choice: they can give you bail, or they can take you to court and let the court decide the question of bail. Again they have to do this pretty quickly – if they've kept you overnight they'll take to court at 9am ( generally not on a Sunday), for example.

So we've covered the “what?”, what about the “how?”?

Well, most people will get police bail. The police will have arrested a suspect, they will prepare a formal charge and then let them go with a summons for their first court date. That's the boring one, though: the police have no obligation to consider any factors when considering granting police bail, and can just say 'no'. So how do people get bailed by a court?

The Courts have some basic options:

1) You can be remanded at large – you're released, and told to come back on a set date for the next stage of your proceeding. This isn't technically a type of bail, and if you're remanded at large you're probably fairly respectable for a criminal if (maybe you're young and your parents are in court) – you'll probably come back because most people do what a judge tells them to do. If you don't attend court on the given day, you're not breaking the law, but you can be re-arrested on the original charge (and will go through a bail process again in which the judge won't be so lenient).

2) You can be bailed – you sign a bail bond promising to come back on a set date. If you don't come back, in addition to being re-arrested, you may face a separate charge of breaching bail.

3) You can be bailed with conditions – you sign a bail bond agreeing to come back, and agreeing to abide by certain conditions. If you fail to follow those conditions you can be arrested for breach of bail (I'll explain conditions in more detail later).

4) You can be remanded in custody (or some form of custody, like home detention); naturally, this isn't a form of bail either.

But how does a judge work out which of these options to apply?

Some people are entitled to bail as of right. If the offence you're charged with isn't punishable by imprisonment you are entitled to bail (generally you couldn't even be arrested). Unless you've got a prior conviction for an offence that could have been punished by imprisonment, or the offence you're currently with is a domestic violence offence, you are also automatically entitled to bail if the offence you're charged with carries a maximum sentence of less than three years (or is one of the eleven specifically listed offences for which bail is automatic – e.g. making a false statement, abandoning a child under 6 etc.).

But for everyone else, the basic idea – consistent with the presumption of innocence – is that a defendant must be released on reasonable terms unless the court is satisfied that there is “just cause for continued detention”. And it's the job of the police to come up with those good reasons why defendants should lose their right to freedom.

To determine whether there's a good reason to detain a defendant the court has to consider whether there is “a real and significant risk” that the person charged:

1) may fail to appear in court on the date to which the defendant has been remanded; or

2) may interfere with witnesses or evidence; or

3) may offend while on bail.

The court will also look at “any matter that would make it unjust to detain the defendant”.

This of course all makes sense – we're not talking about detaining criminals, but detaining people who are innocent before we've even considered whether they're guilty or not. It makes sences that you'd have to have pretty good reasons to put people in prison who might never convicted, or people who might be guilty but won't necessarily be imprisoned even if convicted.

The Bail Act contains assistance for courts in what they may look at in considering whether there is good reason to refuse bail – it may look at the following:

1) the nature of the offence, and whether it is a grave or less serious one of its kind;

2) the strength of the evidence and likelihood of conviction;

3) the maximum sentence, and the likely sentence;

4) the character and past conduct or behaviour, in particular proven criminal behaviour, of the defendant:

5) whether there is a history of offending while on bail, or breaching court orders,or bail conditions;

6) the likely length of time before any trial;

7) the possibility that detention might prejudice the preparation of a defence;

8) other matters relevant in the particular circumstances.

Importantly, these matters can only be taken into account to the extent that they suggest a defendant will fail to appear, interfere with witnesses, or offend while on bail.

The Bail Act also sets it up so that certain people have a harder time getting bail – bail for people charged with treason or espionage can only be granted a High Court judge, for example, and there are couple of bigger exceptions. People charged with certain serious “specified offences” who have a previous conviction for a specified offence have to prove they should get bail, rather than have the prosecution prove they shouldn't.

Specified offences include things like rape, murder, wounding or injuring with intent, robbery and commission of a crime with a firearm – all serious violence offences. Remember that not only do they now have to be charged with one of these crimes, they have to also have a previous conviction for one.

Defendants with substantial criminal history and a history of committing crime while on bail are also placed under an obligation to prove they should get bail. These are people who:

[you need all three]

1) are charged with an offence carrying a maximum term of 3+ years; and

2) that offence is alleged to have occurred while the defendant was on bail for other offending with a potential term of 3+ years; and

3) have previously received a prison sentence.

Or people who:

[alternatively, you can have these three]

1) are charged with an offence carrying a maximum term of 3+ years; and

2) have received 14 or more prison sentences; and

3) have been convicted for an offence carry a maximum term of 3+ years committed while on bail.

The law basically treats people with such criminal history as having surrendered the right to bail. They can still be bailed, but it's treated as a privilege they have to prove they've earned. For everyone else though – people without serious criminal histories – bail is something the police have to prove you shouldn't get, with that presumption that you'll get it unless the police can show there is a real and substantial risk you'll not turn up, or you'll interfere with witnesses, or you'll commit new offences.

Which is how we come to conditions. If the choice was just between bail, and remand in prison, we'd probably have a lot more people in prison. Conditions are attached to bail to decrease the risk defendants present: for example, if a court orders a person not to contact an alleged victims or witnesses – and they know they'll get in trouble if they do – then they're less likely to interfere with witnesses.

There's no real limit to the conditions that can be imposed – whatever is required to remove the risk in the circumstances – but standard conditions include:

1) a requirement to reside at a particular place – which for young people will often be a requirement to live at home with their parents. A residential condition isn't home detention or a curfew – you don't have be at home all the time, but you can't move without getting the court to agree.

2) a requirement to abstain from drugs or alcohol – this will often be imposed where the offence is one involving violence. Many people who engage in violent offences do so fuelled by alcohol, if alcohol is removed, the chance of further violent offending while on parole is diminished.

3) a requirement to turn up at a local police station one or more times a week. If people have to present themselves at a local police station each Monday and Thursday, they'll know they it will probably be difficult to get away with leaving the area to avoid having to go to court.

4) a curfew – used in conjunction with a residential condition, this a requirement to be at that residence between certain hours (usually night-time, but not necessarily); this is common for suspected burglars: if you know the police will come 'round a couple of nights each week to make sure you're home, you're less likely to commit further burglaries.

5) a requirement not to go to a certain place – for example: Courtney Place, Ruatoki, or the hang-out of a rival gang – or not to associate with certain people: for example your co-accused. If your alleged offending has a common theme, perhaps with previous offending, then prohibiting you from going to that place, or being around those people should lower the risk of further offending. Ordering someone to avoid a particular town or area can also lower the risk that they'll “accidentally” bump into a witness or the victim.

Other, perhaps less common, conditions include being ordered not to drive, or being ordered to undergo drug, alcohol or anger management counselling.

The purpose of imposing any of these conditions is to help the court be satisfied that you won't pose a real and substantial risk of doing one of those three things we don't want people facing charges doing – committing more crime, interfering with witnesses, or not turning up.

So if bail conditions are designed to diminish these risks what happens if someone breaches bail conditions?

Primarily, if someone fails to turn up to court without a reasonable excuse they commit a crime – carrying a maximum sentence of 1 year's imprisonment or a $2000 fine (failure to turn up after being given police bail carries a fine only – up to $1000). Someone the police find breaching a bail condition will be arrested, and they'll be brought to court again where the question of bail on the original charges will be considered again.

The judge considering the new application for bail will look anew at the circumstances, but bail isn't automatically revoked. The defendant may of course be innocent of breaching bail: for example, they might have a reasonable excuse for breaching a condition, maybe they didn't present themselves during a curfew check because they had to take their partner to hospital, or perhaps the victim they were told not to be near had visited them unannounced.

And even if the person is found to have breached bail (if this was failing to turn up to court, they can be sentenced depending on the seriousness of the breach) if they still maintain their innocence on the primary charges, then they're still entitled to the benefit of the presumption of innocence on that charge. That someone may have failed to turn up to a police station one afternoon doesn't mean they should spend the next 18 months in prison waiting for a trial the might ultimately see them acquitted or only face a non-custodial sentence.

The question remains whether the defendant poses a real and substantial risk of committing more crime, of interfering with witnesses or avoiding coming to court. It is the extent to which any breach of bail impacts on this question then that breach is relevant. If a person charged with involvement in a brawl on a rival gang's turf has a bail condition to stay away from that suburb, and is then arrested after being found near another brawl in that area, it is more serious breach (and has greater impact on the question of likelihood to offend while on bail) than someone forbidden from drinking alcohol who is found during a curfew check to have had a single beer while watching the rugby at home.

We punish those who breach bail for breaching bail. We remand in custody those who present a real and substantial risk. The two are not necessarily related.

There are a bunch of other aspects to bail – as an extension of the presumption of innocence you lose the right to bail once you plead or are found guilty – so the test for bail while waiting for sentence or waiting for an appeal is different, and there are procedural questions, and bail appeals which I haven't looked at. I reckon they're probably not as interesting, or at least not as generally useful, but if anyone has questions, feel free to ask in the comments.

[I might have a look over the last half of the Te Qaeda thread and see if there were any questions in there while I'm at it]

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