The Bail Amendment Act 2013 - A Brief Human Rights Audit

Kris Gledhill               The new Bail Amendment Act 2013 which came into force in September last year sets out some important changes to an accused’s right to bail. This article looks the human rights principles which form the backdrop to rights of liberty and bail, how these have been impacted by the new Act, and what questions we should now be asking.

 

Overarching principles as to liberty, bail and right to trial

Under Article 9.1 of the International Covenant on Civil and Political Rights 1966 (ICCPR), there is a right to liberty, which can only be taken away if there are grounds that mean any detention would not be arbitrary. This is the origin of the right not to be detained arbitrarily found in section 22 of the New Zealand Bill of Rights Act 1990 (NZBORA).

In addition, Article 9.3 of the ICCPR requires judicial consideration of bail in criminal cases, and provides: “It shall not be the general rule that persons awaiting trial shall be detained in custody”.

This context is important to note, namely that there is a right to a trial within a reasonable time, and, fundamentally, there is also a presumption of innocence (found in Article 14(2) of the ICCPR). NZBORA matches these, with the right to a trial without “undue delay” set out in section 25(b), and the presumption of innocence in section 25(c).

In addition, section 23(3) NZBORA provides for the right to be brought before a court if not released by the police after charge, and section 24(b) notes the right to release “unless there is just cause for continued detention”.

Against these background principles, the political realities of needing to appear “tough on crime” must be balanced. A favoured technique is to require defendants to prove that a right should be granted to them, rather than the prosecution having to prove that a right should be taken away.

Reduced rights to bail under the Bail Amendment Act 2013

This is effectively what has been done in the amendments to the Bail Act 2000 made by the Bail Amendment Act 2013. The 2013 Act has repealed various instances of the right to bail - section 7(3) has been removed and section 15 has also been amended so that the previous right to bail for persons under the age of 20 is now limited to those aged 17 who have no previous sentence of imprisonment.

Where there is no right to bail, there is a presumption in favour of the accused unless there is “just cause” for detention (section 7(5) of the 2000 Act).

In working out what is “just cause”, courts must carry out a risk assessment, including the risk of absconding, interfering with witnesses or committing a further offence. The court may take into account such factors as the nature of the offence, the penalty risked, the strength of the evidence and past conduct (including offending on bail).

Certain restrictions on the right to bail under the 2000 Act have also been added to by the 2013 Act.

First, section 9A creates a presumption against bail for adults charged with murder - the defendant must prove on the balance of probabilities that there will be no violent offending if bail is granted.

The statute indicates that public safety, including the risk of particular persons who may be in danger, is the primary consideration.

Secondly, the 2013 Act extends the number of offences within the ambit of section 10 of the Bail Act 2000. This provides that an adult defendant who has a previous conviction for one of a list of specified offences cannot be granted bail if charged with a further specified offence. Instead, the reverse burden of proof applicable to those charged with murder also applies to such defendants.

Thirdly, a new section 17A creates a similar regime for those charged with serious class A drugs offences, who must prove that they will not commit further drug-dealing offences of any sort.

Is this problematic from a human rights point of view?

Crown Law suggested that these reverse onus provisions were not problematic under human rights standards (see http://www.justice.govt.nz/policy/constitutional-law-and-human-rights/human-rights/bill-of-rights).

They reasoned that first, there is no presumption of innocence because the question of bail turns on anticipated conduct rather than past behaviour.

Secondly, the issue is one of just cause for detention, which will apply when a “significant risk” is found of relevant public safety concerns.

Thirdly, based on Canadian jurisprudence (R v Pearson [1992] 3 SCR 665 and R v Morales [1992] 3 SCR 711), a reverse onus of proof was a proportionate action that ensured the proper functioning of the bail system “where the normal bail process (the onus resting on the prosecution) is incapable of doing so”. The Canadian cases related to serious drugs offending.

Crown Law concluded that the same approach applied to the various proposed changes and so they were proportionate.

As to the first two parts of this reasoning, it is right to say that the presumption of innocence is not directly applicable, though it must be part of the context because the strength of the evidence is relevant.

However, there is the equally fundamental presumptive right to liberty as the starting point, which cannot be taken away where that would be arbitrary. This right does not merit a mention in the advice from Crown Law, which is disappointing to say the least. Nevertheless, it is clear that “just cause” to detain someone pre-trial arises from significant risks that there will be further offences or interference with the course of justice.

What is the appropriate burden of proof?

The question which arises is this: is a reverse burden of proof (i.e. someone will be detained if the evidence is evenly balanced as to future risk and the ability of conditions to deal with that) potentially arbitrary, and so possibly a breach of section 22 of NZBORA?

The Canadian case law takes the view that an onus on the prosecution that would make the system incapable of working properly can be replaced with an onus on the defendant. New Zealand government research suggests that in the period from 2004-2009, a third of those charged with Class A drugs offences commit further offences on bail, which was double the normal rate (of 17.4%), and half of them received a custodial sentence for that offending (which was also higher than the normal rate that 30% of offences on bail lead to a custodial sentence).

Of course, if those convicted of Class A drugs offences receive a custodial sentence, which will be the norm for anything beyond simple possession, any offending whilst on bail – expressly an aggravating factor in the Sentencing Act 2002 – will lead to a further sentence.

So how will the changed burden of proof affect this? The Regulatory Impact Statement issued with the Bail Amendment Bill 2012 (RIS) suggests that it will have an impact in 5% of cases and result in a 7% reduction in offending by Class A drugs offenders on bail, which will save $92,000 in the costs associated with those crimes, but add $774,000 to the costs of keeping people in custody.

For murder offences, the RIS noted that there were 409 defendants charged with murder in the period from 2004 to 2009: only 5% were on bail throughout (though a third had some period on bail), but 62% were in custody throughout. Of the 156 who spent some time on bail, three committed a further serious violent offence (one of which was a further murder), and various lower level offences were committed.

The reverse burden of proof is estimated to reduce this offending whilst on bail by 15-18% per year, with savings of only up to $7000 per year (which means that there can be no suggestion that the very limited serious offending whilst on bail will be affected) but additional annual costs to the Corrections Department are up to $273,000.

Figures were also provided for those charged with the offences covered by the amended section 10. The rates of offending whilst on bail varied. The estimated impact of introducing the reversed burden of proof was a potential saving of $579,000 per year of the costs associated with crime, but the additional custody involved will cost $3 million
a year.

However, this would involve only a 3% reduction in offending. All the other changes are costed-out as well: for the change to the right to bail for those under 20 years of age, for example, there would be a 2-7% reduction in offending, saving $14-44,000 but costing between $182,000 and $546,000 to the Department of Corrections.

A need for caution in the future approach

A detailed review of the material would be worthwhile at some stage, however at this point the initial question is whether these figures justify the changes?

There are reasons for caution. First, the figures relate to a period between 2004 and 2009: since then, judges have become more cautious because of high profile challenges, meaning these figures may now be out of date.

Secondly, the suggested impact on 5% of cases is supposed to reduce offending on bail by variable percentages: but this is based on an assumption that the people who are likely to be refused bail on the reversed burden are the ones who are responsible for this further offending.

Even if the assumption is a proper one, why does it mean that we should reverse a fundamental presumption (of liberty), rather than having prosecutors do better in pointing out the risks of further offending and explaining why it is the particular individual charged with the particular offence who presents such a risk? After all, the offences to which the reverse burden of proof applies will allow the presumption in favour of bail to be displaced if the facts justify it.

In short, better evidence is needed that the system was incapable of working. As such, this seems to be an example of legislative overkill in response to a problem that could be dealt with in a manner that does not cast aside a right-based approach.

Kris Gledhill practiced as a barrister in London for two decades; at present, he is an academic lawyer in Auckland. 

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