Housing NZ colludes to deny the right to bail

Radio New Zealand reports on the disturbing practice of the Police, Corrections, and Housing New Zealand colluding to block bail requests:

Housing New Zealand is standing in the way of poor people getting home detention or being bailed to state houses even when they have no other options, lawyers say.

Police and Corrections are also being criticised for alerting Housing New Zealand to bail applications when they would not do the same with private landlords.

A person is more likely to be locked up - whether they've just been charged or already convicted - if they cannot find an address to go to that is acceptable to the court.

Judges ask police and probation what they think about an address, and they in turn have been making a habit of asking Housing New Zealand what it thinks.

What's wrong with this? Where to start? To point out the obvious:

• It is inconsistent with the tenancy rights of Housing New Zealand tenants. They're allowed house guests or boarders, and Housing New Zealand doesn't get to vet them. So, they're violating their tenancy agreements with their tenants and acting as despots.
  
• It is prima facie inconsistent with Housing New Zealand's duties under s24(b) of the Bill of Rights Act, which states that everyone charged with an offence "shall be released on reasonable terms and conditions unless there is just cause for continued detention". While this is normally the duty of the courts and police, as an arm of the executive, Housing New Zealand must also act so as to give effect to this right. Pretty obviously, its not.
  
• It may also be inconsistent with the right to be free from discrimination on the basis of employment status or disability, insofar as it results in those groups (or people with relatives in those groups) receiving worse treatment from the courts as a result of Housing New Zealand practices.
  

And all of these are legally actionable and potentially impose significant liability on the government. And those who have been victimised by this collusion need to sue, because clearly state agencies won't obey the law (and common decency) unless they're taken to the cleaners whenever they break it. We have enshrined the right to bail to prevent the innocent from being unjustly imprisoned while their cases are resolved. Innocent people have almost certainly spent time in jail because of Housing New Zealand's actions, and they need to be compensated. But most importantly, this practice needs to be stopped immediately and those responsible for it sacked. Because apart from being unlawful, it is simply plain fucking wrong to discriminate against the poor in this way because they or their relatives are recipients of state assistance, and to use that fact as leverage to effectively impose a harsher punishment than others would receive.

An affront to justice

Collective punishment is the idea of punishing third parties for crimes in which they had no part. In times of war, it is recognised as a war crime under the Fourth Geneva Convention. However, here is no prohibition against it in international law in times of peace, because it is so patently unjust as to be unthinkable in any justice system worthy of the name.

National wants to introduce it to our legal system:

The parents or guardians of young people before the courts could have bail conditions imposed on them as well as their children, such as not drinking alcohol and having to reside at a particular address, under a private members' bill in the name of Northland MP Mike Sabin.

[...]

The Children, Young Persons and Their Families (Parent's and Guardian's Responsibility) Amendment Bill would allow the Youth Court to set bail conditions for parents and guardians in a bid to prevent re-offending.

Mr Sabin believed at least half of the responsibility for youth offending was down to adults making sure their children were being properly supervised.

Mr Sabin's bills have been approved by the National Party caucus for support at first reading should any be drawn from the ballot.

[Emphasis added. If the caucus approves it, they don't get to hide behind it being a Member's Bill]

Of course, in practice, this will only apply to poor parents. Rich parents will be able to afford lawyers able to argue the fundamental injustice of punishing them for the actions of another. And they'll know to game the system by refusing to sign bail authorisations which attempt to impose such conditions on them - thus presenting the court with the choice of removing the odious conditions, or unlawfully imprisoning a child (faced with such a decision, a court would be forced to apply the UNCROC principle that the best interests of the child are paramount, and vary the conditions so as to enable their release). Not that a court ever would attempt to impose such conditions on wealthy parents - because Everyone Knows that when their kids commit crimes, its an "aberration", rather than a reflection of bad parenting which must be corrected with state force.

Naturally, the "Sensible" Sentencing Trust approves - which tells you all you need to know.

This is a fundamentally unjust bill. But National doesn't care about justice - all they care about is grubbing "tough on crime" votes by kicking people. And the more defenceless, the better.

The Dotcom bail decision II

Kim Dotcom has finally been granted bail. While the full decision doesn't seem to be available, the Herald has the reasoning:

The prosecution had argued that because Dotcom was "a wealthy man" he must have significant resources available to him and would be able to fund an escape from New Zealand.

However, a North Shore District Court Judge Nevin Dawson has found that there had been no new significant asset seizures since his mansion was raided and he was arrested.

"The disposition that he is wealthy and must have more assets is not evidence.

"It would seem that he has every reason to stay (in New Zealand) to be with his family and to fight to keep his significant assets," Judge Dawson said.

In other words, the police's secret flight fantasies aren't enough. There must be a real and substantial risk to justify continued pre-trial imprisonment. Absent such a risk, he must be released. It is that simple.

Unfortunately, a condition of bail is that Dotcom not use the internet, effectively denying him quick and easy access to his overseas lawyers and impeding his defence. While the (elderly) judge would no doubt say that he could use telephone and post, to modern eyes that's like telling someone they can use carrier pigeons. The Bill of Rights Act requires release on "reasonable" terms and conditions - and in the modern era, banning people from using the fastest, most efficient and pervasive communication mechanism is simply no longer reasonable. Unfortunately, we'll probably have to wait for a generation of pre-internet dinosaur judges to die or retire for our legal system to recognise that.

The Dotcom bail decision

Megaupload founder Kim Dotcom has been denied bail. The NBR has the full decision (in four parts) here. Reading through it, it basically came down to perceived flight risk: the US talked this up, the police told the judge horror stories of people absconding, and how they could abscond if they set their mind to it, and the latter especially seems to have been decisive. Troublingly, that evidence was heard in closed court, and the affidavit returned to the prosecutor to prevent it from being accessed from the court file, so the core evidence here is effectively secret. While able to be contested by the defence, we are not allowed to view it and decide whether it stacks up (and hence whether the judge's decision was correct, or whether he was misled). Also troublingly, all conditions (including 24 hour curfew, electronic monitoring, and a ban on using or communicating by computer, internet, or even telephone - basically an electronic death sentence) were refused. So much for the BORA requirement that those charged

shall be released on reasonable terms and conditions unless there is just cause for continued detention.

So, we're going to lock a guy in jail for a month or two, in the process undermining his defence in a serious criminal case, on the basis of secret evidence which may be no more than a police fantasy. Which is beginning to sound like Ahmed Zaoui territory again.

There is ample grounds for appeal here, and I expect Dotcom will take it.

Beating the law and order drum

One month until the election, so of course National is beating the law and order drum, announcing changes to bail laws to appear tough on crime. If National gets their way, people accused of murder and class-A drug offences will face a reverse onus of proof to be granted bail. This is "justified" in the name of "public safety", but a vanishingly small number of accused murderers reoffend while on bail, while only a third of drug offenders do. In both cases, those who actually pose a risk can already be denied bail. So what National is proposing is a blanket presumption against bail for people who present no serious risk to public safety - something which is blatantly contrary to the Bill of Rights Act's guarantee that

Everyone who is charged with an offence... shall be released on reasonable terms and conditions unless there is just cause for continued detention

It is also contrary to Article 9.3 of the ICCPR, on which the BORA clause is based, and which is interpreted by the United Nations Human Rights Committee as requiring that pre-trial detention be "an exception and as short as possible". But clearly, our domestic and international human rights obligations are less important to National than further othering the accused and whipping up fear and hate of "crims" to win votes.

Eroding the right to bail

Not content with moving to eliminate jury trials for most crimes, Justice Minister Simon Power is already mounting another attack on the rights of the accused - this time on the right to bail:

People accused of serious drug charges would face tougher tests to be granted bail under proposals set out by the Government.

Justice Minister Simon Power has just launched a discussion document on reforming the bail system that would include a reverse burden of proof for people charged with serious Class A drug offences, such as those involving P.

A reverse burden would require the defendant to prove to the court that they should be granted bail rather than the prosecution having to show the court why they should be remanded in custody.

Power said the Government was also exploring issues such as whether people accused of murder should lose the right to bail.

The problem with this lies in one word: "accused". People accused of a crime have not yet been found to be guilty. They may in fact be innocent. But Power is proposing throwing them in jail for two years or longer, simply on the basis of a police accusation. And that's just wrong.

Currently our bail laws generally recognise this. Despite National's "tough on crime" changes, bail is still a human right in this country. And this is recognised in section 24 of the New Zealand Bill of Rights Act, which provides that everyone charged with an offence

Shall be released on reasonable terms and conditions unless there is just cause for continued detention

A real risk of non-appearance, reoffending, or interference with the trial process is "just cause". Public outrage at the crime, or a desire to take a tough line against a particular type of offence isn't. Power's proposal would see innocent people imprisoned for prolonged periods of time, losing their jobs, families, and sometimes even lives, with no apology or compensation from the government. It is unjust, it is unfair, and it is just plain wrong.

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.