There has been considerable recent controversy regarding the changes to the Bail Act that were recently introduced. Controversy regarding bail laws is not a new thing. When a person is charged with a serious crime and it is revealed they were on bail at the time there is outcry – some of it genuine some confected. The sentiment underlying the outcry is always essentially the same – had this person not been granted bail this crime would not have been committed.
Sometimes that is the tragic reality. Sometimes it is not.
But what really underpins that sentiment is an endorsement of or a desire for preventative detention – that is locking people up on the basis of what they might do not on the basis of what they have done or have been proven to have done. This type of thinking, in some ways, calls into doubt the legitimacy of bail in its entirety.
It is worth then considering what is the purpose of bail – why have it? What function does it serve? Then the way in which bail is effected can be assessed with greater nuance and understanding.
To examine these questions the concept of bail must be placed within the broader context of our system of justice and the core principles upon which it is built. Some of these concepts are long established. Others are practical and are impacted upon by the resources available within our judicial and legal system.
It might seem simplistic but fundamental to any criminal case is the right of the accused to choose whether they plead guilty or not guilty. Taking away this right would be inconceivable to any right-thinking person. We do not allow torture or other forms of government coercion to be brought to bear to bring about a guilty plea. The choice is, properly, left to the accused.
Once it is accepted that every accused has the right to plead not guilty then other principles of the most important kind come into play; they include the presumption of innocence and the requirement for the prosecution to prove the case against the accused beyond reasonable doubt.
Remanding an accused in custody is an inherent infringement on their rights. Sometimes it is necessary. But taking away a person’s liberty is the gravest step that can be taken in a civilized society such as ours. It should not be done lightly. In keeping with such an approach a sentencing court must, unless there is legislation to the contrary, consider all other options before sending an offender to prison. Jail is the sentence of last resort.
This means that not all offenders will be sentenced to imprisonment at the end of their cases.
Of course, not all people charged with crimes are guilty. Witnesses and police make mistakes. Some cases simply can’t be proved. The result is that not everyone charged with a criminal offence is found guilty – let alone goes to jail.
Once these facts are accepted the issue of bail becomes far more complex and the task of implementing a bail scheme become far more difficult.
What then should be the key questions to consider when deciding whether or not a person should be granted bail? Should it be that anyone charged with a particular class or type of offence is not permitted to be granted bail? If that is the case what happens to the innocent?
To properly consider these things we have to then turn to the practicalities – the limits of resources and the ever increasing complexity of criminal cases.
The resources of the Victorian justice system are under constant strain. From the courts to the police and from prosecutors to legal aid the funds are finite. This means that cases take time. Sometimes they take a long time – it is far from unusual for a case in that concludes in a trial in the County Court to take more than 2 years from arrest to verdict. Do we simply remand all people for that length of time? Do we allow their employment or education to be utterly disrupted, their families to go without support?
If not what then must be assessed? The simple answer is risk. But assessing risk is incredibly difficult – the capacity to predict future behaviour is fraught to say the least.
So we return to the concept of bail – why have it? The answer is to ensure that the taking of a person’s liberty – with all that goes with it – is only done when necessary. Bail exists so that just charging a person is not enough to have that liberty taken from them.
If we are to assess risk then in that context – the questions which flow are:
Risk of what? And what has to be considered to make that assessment.
Applying logic to these questions in the context of what is set out above the answer to the first question must be the risk that they won’t turn up to face their court case and the risk that they will commit offences while on bail. To the latter we can add the risk that they will endanger members of the public – but in reality that risk is tied to the question of re-offending.
How does the risk get assessed?
The first, logical, thing to consider is the seriousness of the offence charged. Recent media reporting has suggested that our justice system isn’t based on logic. Such a suggestion is utter nonsense. When considering how likely it is that someone it going to do a runner and not turn up to court – clearly the seriousness of what they might be running from is directly relevant to that risk.
Of course, our justice system doesn’t operate solely on the question of the rights of the accused – those rights have to be balanced with the safety of the community. As a result, an examination must be undertaken of the likelihood of the person endangering the community if they are granted bail. This is no easy task. Again, the seriousness of the offence they are charged with is relevant – but not determinative. What is also relevant is the person’s criminal history if any, where they would live and with whom, whether they work, if they have drug issues and a variety of other matters personal to them and to any victim of the crime they are charged with.
In addition, the court needs to make an informed assessment of how long it will take before the case is ultimately concluded and if the accused is at risk of spending more time on remand than they would be if they were sentenced.
It is not just logical but essential to a just outcome that all these things are considered – they are the surrounding circumstances.
This is the task that courts face across our state every day. They consider the materials available to them and make careful decisions. It is no small thing to deprive a person of their liberty – and nor should it be. Media reporting that suggests courts are not assessing the question of risk or that the changes to the Bail Act have somehow prevented police from seeking to have accused who they allege pose such risks remanded simply do not reflect the reality of the practices of the court and the state of the law.
© 2023 Copyright Stary Norton Halphen.
Doyle's Guide First Tier Criminal Law firm (2020, 2021 and 2022).
