Bail reform: line between freedom and protection

Press, 30 April 1981, Page 17

Bail reform: line between freedom and protection

By

VICKI FUREY

The rules relating to bail have been under fire from a number of quarters, especially in recent months. Criticism has come not only from the so-called “victims” of the rules,, but also from those firmly entrenched in the judicial system. Some argue that New Zealand’s bail rules are unjust, anachronistic, and must be revamped, beginning with the abolition of sureties. Others contend that the law should be strengthened, that the courts should be given, more power to impose conditions on bail and that absconding while on bail should be an offence in itself. The Criminal Law Reform Committee, which is directly responsible to the Minister of Justice (Mr McLay), has been considering bail rules since last year — a fair indication that the regulations are regarded as far from satisfactory in their present form. That committee will probably report back to Mr McLay later this year. Emotive arguments about various aspects of bail often obscure the reason for the remand decision in our criminal courts. Whether a person is released on bail, or remanded in custody, the reason for that decision is to ensure that the defendant attends the next court hearing. The possibility of reoffending and interference with the course of justice are also matters which the courts consider. At no stage is the remand in custody a punishment or simply for administrative convenience. The remand decision is a daily duty for our criminal court judges, especially in the District Court. It is a decision that does involve conflicting interests —. the individual’s right to freedom as opposed to the protection and well-being of the community. j Unlike some other coun--1 tries, New Zealand does not

have an Act of Parliament regulating bail. General rules applied in the High Court and District Court are contained in the Crimes and Summary Proceedings Act. A number of particular- provisions which apply in certain cases, such as in some drug dealing offences, are scattered through various pieces of legislation. The Criminal Law Reform Committee is likely to recommend a self-contained act, while retaining special rules in certain offences. Much of the bail controversy has revolved around the question of sureties. Critics of the system claim that people are spending time in prison because they do not pass the “wealth test” — that they do not have friends with the means to stand surety. It is doubtful that the Criminal Law Reform Committee will favour the elimination of sureties. More probably it will advocate further conditions that can be attached to bail to ensure that the defendant attends the next court hearing. A Christchurch lawyer, Nigel Hampton, believes that sureties to bail are neither an appropriate nor a positive way of ensuring an appearance. It is an anachronistic concept that “does not sit well on anyone in today's society,” he says. He believes that absconding should be an offence in itself, and that the courts should have the power to impose conditions on bail. He points to anomalies in the present bail rules. In general there is no jurisdiction for the courts to attach conditions to bail, apart from a personal bond, requirement of a surety, and a reporting clause. In some special contexts, such as the Children’s Court, judges can impose other conditions. However, a District Court judge will sometimes specify that a person is not to reside

at a certain place, or that he is to refrain from contact with the complainant. Mr Hampton says that this practice has arisen partly through precedent. Hopefully the person will take notice of the’judge and put on his best behaviour during the adjournment. Mr •’■Hampton says that while these conditions are not necessarily unlawful, it is a “half-shaded area” . that needs some definition. This is one area that the Criminal Law Reform Committee may consider tidying

up. Local District Court judges had, in the last five years, made a conscious effort to ensure that people entitled to bail were granted it, Mr Hampton says. Even so, there are still injustices, where people are effectively denied bail because the sureties fall through, or do not measure up to the standard required. But if the courts think that a person would answer bail then, in principle. there seems to be no justification for holding him in custody. A Christchurch District Court judge, Mr Fergus Paterson, says that if a surety is not available, then the courts will do their best to see if a reporting provision can be used. He admits that obtaining sureties is more difficult for people who do not have “friends of worth.” If a person fails to obtain a surety his position can be reviewed by the court later in the day, or on the next day. However, unless the person’s solicitor is “on the ball” it could happen that someone was “languishing in custody” because the surety had fallen through and the judge had not been given the chance to reconsider the matter. If would be very surpris-

ing, however, if the matter was not brought to the court's attention. Solicitors, welfare officers and prison chaplains were, or should be. aware that bail could be reviewed if a surety had not been obtained.

In deciding whether to allow' bail, judges start with the premise that a person has a right to freedom. Police attitude to bail is asked. If they oppose bail, the judge will hear arguments from the defence and prosecution, in chambers if necessary. This is the one time that a person’s past criminal record is revealed as it may eliminate a person from being bailed of right. Anything else that may help the judge in his decision is considered.

Every week in criminal courts people have to be retained in custody for various reasons, Mr Paterson says. People that are already on bail and have reoffended, people of no fixed abode, people who are likely to reoffend.

Self-bail is of no great value. Mr Paterson says. Where the courts are unsure of a person sureties are asked for. These are carefully assessed through the court registrar to ensure that the bond can be met.

A surety means what it says. They are not asked for lightly, and it is the duty of the surety to make sure that the defendant turns up at the next court hearing otherwise he or she may risk losing part or all of money put up. The amount of the surety is left to the discretion of the courts, Mr Paterson says. Small amounts are easily agreed to but hard to enforce. It could not be said that the courts impose sureties they know cannot be met.

The courts are concerned that some people who do not have the means, or have the right relationship with the defendant, are being pressured. into standing surety. People had to understand the hardship that could follow if they were faced with an estreated bond for several hundred dollars.

Bail terms were only imposed if the courts had' serious doubts about the stability of a person. Mr Paterson says. It could be that a person had previously failed to answer bail. People do getdates muddled, but a surety can help jog the memory. The Christchurch District Court Registrar, Mark Cooper, says that the only test applied with sureties, is the means test. If a surety can point to assets, or to a source of continuing income, he will satisfy the requirements of the Justice Department, depending on the amount of the bond. Sometimes proof of ownership, particularly with motor vehicles, is required. Only very seldom is a surety rejected. Head of the Christchurch Police District. George Twentyman, points out that in 90 to 95 per cent of cases the police have no objection to bail being granted. They are concerned, however, about the small percentage who do commit further offences while on bail.

In some cases the police find that a person has been arrested, bailed, offended again, arrested again, bailed again, and then committed another offence. “That is where we say the law is not doing its job of protecting the community,” he says. People sidetrack off into statistics, Mr Twentyman says. It is not a large number that reoffend, but they are the ones that cause all the trouble.

It is naive to think that just because a person has been arrested for an offence

he will stop there. Whether reoffending is a possibility cannot be determined with any certainty, but the signs and symptoms are there, especially if a person has previously offended while on bail.

Mr Twentyman points out that the police are the sole representatives of the community in court, and it is a role that they take responsibly. They do not oppose bail without good reason.

He believes that reporting clauses are ineffective. A person could report to the police at 7 p.m. and be out of the country by 9 p.m. Some people do just that. The introduction of passports for New Zealanders travelling to Australia from July 1. may make this more difficult in future.

If the courts had the power to impose other conditions this could do more to ensure stability, Mr Twentyman says.

Bail on a person's own bond is meaningless as there is usually not much chance of estreating the bond, he says. Sureties are one of the best tools available to the courts as the offender knows that he will let the suretydown if he fails to turn up for the hearing. The problem of people absconding while on bail is likely to be tackled by the Criminal Law Reform Committee. The committee may consider whether the police should always need a warrant to arrest someone suspected of absconding. In theory a person can be walking across the tarmac at Christchurch Airport and the police cannot touch him without a warrant. Whether the committee recommends absconding as an offence remains to be seen. However, whatever its recommendations, it is highly unlikely they will meet with the approval of all the critics.