The Bail Bill is an insidious affront to the rights of the individual to reasonable bail when charged with a criminal offence, to be presumed innocent until proven guilty, and to have both these rights interfered with only by an independent judicial officer. That the Bail Bill violates constitutional rights is frankly admitted by those supporting it. There is no doubt in my mind that there is no justifiable basis for this latest assault on the Bill of Rights.The bill, which was passed by the lower House, provides that any person who is charged with any one of a list of offences, and who had previously been convicted of any of those offences, must be denied bail. The automatic deprivation of the right to bail operates for a period of ten years after the accused has served the sentence of imprisonment imposed for the previous crime.The significance of this measure must be appreciated. It means that for a period of ten years after serving his sentence, an individual will be liable to be imprisoned immediately upon a charge being laid against him and he will only become eligible for bail after spending a minimum of four months in jail. That period can be extended indefinitely as long as some evidence is led before the court during that period. It means, in other words, that an individual will serve a mandatory minimum additional prison term of four months (it may be longer) because of his previous conviction and because a police officer determines that there is sufficient basis for a new charge.
The latter point needs to be emphasised. As the law operates at present, the question whether a person charged with an offence is to be denied bail is determined by an independent judicial officer, first by a magistrate and then a High Court judge. A judicial officer is permitted to deny bail primarily if it is established either that the accused will not turn up for trial, will commit an offence while on bail, or will interfere with a witness. The law therefore strikes a balance between the interest of the accused not to be deprived of liberty until he is proved guilty of an offence, on the one hand, and the interests of the community at large to be protected against the commission of further crime or an escape from justice. And what is crucial is that this interplay of rights is mediated by an independent, legally trained judicial officer who is expected to respect the balance struck by the law.What the Bail Bill does, in effect, is to vest in the police the power, without review, to imprison someone previously convicted of a particular offence for a mandatory minimum period of four months. The bill therefore puts us on the cusp of a police state. It creates a class of individuals, those having served a sentence for a particular crime less than ten years ago, who are under the power of police officers, and who are in danger of being imprisoned for a mandatory period of at least four months, simply on the say-so of police officers.
It does not require a fertile mind to appreciate the abuse to which such provisions might be put. One only needs recall the fiasco of the scores of individuals charged with offences under the Anti-Gang Act during the recent State of Emergency, only to be released because there was no evidence to support the charges. The question which arises is this. What purpose is this bill to serve? And on what basis is this admitted violation of fundamental rights justified?Certainly it will put out of commission for at least four months those individuals who had previously committed a listed offence or who the police say have committed another. For that four-month period, those individuals will be behind bars and the community is therefore potentially protected from any offences that they might have committed.The protection which is achieved is therefore speculative. It is premised upon their charged committing further offences while on bail, but without any proof that they would in fact have done so.But at the end of the four-month period, then what?
If the police are unable to start the case or unable to establish that the accused is a flight risk, or will re-offend or will interfere with witnesses, he will likely be put on bail. On the other hand, if the police are able to establish any of these matters, the judicial officer can refuse bail. Which leads to this question: if such evidence is available, why not use it in the first place to support an application to deny bail?The point is this: the Bail Bill is only really of any value in those cases where the police are unable to prove that the accused will use his freedom to violate the law. But that is precisely the circumstances under which the community does not need protection and the accused–who is entitled to be presumed innocent of the new charge–does.The solution to the crime wave is not a further dilution of fundamental rights and freedoms.US Supreme Court Justice Thurgood Marshall once said: "History teaches us that grave threats to liberty often come in times of urgency, when constitutional rights seem too extravagant to endure... When we allow fundamental freedoms to be sacrificed in the name of real or perceived exigency, we invariably come to regret it."
The law already provides a finely tuned scheme for protecting the public from the criminal element and at the same time respecting fundamental rights and freedoms. The solution is to provide the police with the resources to establish what is necessary to persuade the judiciary to deny bail where it is warranted. The solution is not to create a state of emergency in disguise by giving police officers arbitrary power to order the imprisonment of citizens who are entitled to be presumed innocent, even if they have offended against the law in the past.
Douglas L Mendes SC