Monday, November 24, 2008

A real repeal?

So far, in my criticism of National's plans to amend the Bail Act to toughen bail eligibility criteria, I've been assuming that their amendments will have a real effect, that eligibility criteria will in fact be toughened, and that people who would be granted bail under the current law would be denied it and remanded in custody. They're certainly talking as if it will, as part of their sadistic "tough on crime" posturing. But as a commenter at Pundit points out, that may not in fact be the case. If all National does is change the wording from the current "real and significant risk" (of non-appearance, interference, or reoffending) to the older "risk" without making any other changes or inserting a "screw the BORA" clause, then it may not actually be a change at all - the reason being that the courts have already, in line with the BORA, ruled that that "risk" in the old law must in fact be "real and significant".

The relevant case is R v. Hines (CA384/02, 29 November 2002; not online AFAIK). In it, the Court of Appeal upheld an earlier High Court ruling that in order to justify continued detention, the risk of a defendant interfering with a witness had to be

more than nebulous and insignificant and should be a real and significant risk.
While technically only about the risk of interfering with witnesses, this standard has been consistently applied by the courts to the other grounds for denial of bail as well. Reflecting that ruling and providing clarity in statute was the primary reason why the law was changed.

As for whether the law change made any difference to how the law was interpreted by the courts, here's Justice Heath, in R v Kāhui, the day after the new rules came into effect:

“a real and significant risk”, must be regarded as one which can properly be inferred from established facts. The expression does not seem to me to put the test any higher than was under the previous legislation, but rather to emphasise the need for a proper inference to be drawn from proved facts; as opposed to the Court engaging in speculation or guesswork about the possibility of a risk.
(Emphasis added)

So, if the law is repealed and we return to the status quo ante of October 2007, we may very well find it is no change at all, and that National's "tough on crime" talk is just that: talk. But I guess that way they'll be able to palm the blame off on the judges, rather than take the hard road and stand up for decency and fairness in our justice system.