Friday, November 21, 2008

Repealing bail

National has announced that it plans to legislate under urgency to toughen bail laws before Christmas. Instead of requiring that offenders present a "real or substantial risk" to the public in order to deny bail, National will allow them to be imprisoned if they pose any risk at all. While this will no doubt thrill the sadists in the "hang 'em high" brigade, it should worry the rest of us, for the simple fact that it will lead to injustice.

The thing that people forget when discussing bail is that the people released on it haven't been convicted of anything yet. They have been accused and charged, but not proven guilty. They have not been tried, and the evidence against them has not been scrutinised by a jury. Denial of bail is therefore a punishment without trial, and requires the strongest of justifications. Simply being accused of a crime isn't enough (if it was, we'd dispense with the whole business of evidence and trials altogether). Neither are the police's fantasies about the risk the accused poses, or their desire to "keep them off the streets". To justify locking someone up, that risk must be (as the current law puts it) "real and substantial". Anything less, and we're imprisoning people unjustly. This interpretation is more or less demanded by the New Zealand Bill of Rights Act, and the government may find it simply being enforced by the courts unless it makes it crystal clear that they are to lock people up regardless (an action which would violate both the BORA and the UN human rights instruments it implements).

The other thing that people forget is that it can take up to two years for a case to come to trial. In many cases, this will exceed the sentence likely to be imposed, which makes denying bail a recipe for excessive punishment (or a bludgeon to get people to plead out rather than make the police prove their case). Assuming of course the accused is convicted; if they're not, then they will be wrongfully imprisoned for a substantial period of their life - something which all of us would find utterly unacceptable.

As a liberal, I believe that people's freedom is paramount - and that includes the freedom of people accused of crimes. The state should face a high barrier before imprisoning people, and that barrier should be even higher in the case of pre-trial detention. While people get outraged at stories of yet another criminal offending while on bail, punishing people merely on the suspicion of an offence is contrary to all standards of justice. The critics of bail would recognise this immediately if they or their loved ones were abused in that fashion. They should have the consistency to recognise it for accused criminals as well.