Bail and the Rule of Law
Bail has a significant role in upholding the rule of law in Australian justice systems. Bail is a key feature of our criminal investigation and trial processes that protects the individual rights of accused persons, such as the right to liberty, the presumption of innocence and assists the justice system to provide fairness. It also impacts upon resource efficiency for the justice system, particularly with regard to the cost of keeping accused persons in remand for extended periods of time while awaiting trial. However, in contrast, the award of bail to accused persons that are at high risk of reoffending or going on to commit further offences, are a flight risk or who may attempt to disrupt the justice process (for example, by not appearing at court when specified or by intimidating witnesses) can increase the risk to the community, place further strain on the justice system and impact on the community’s collective rights.
Bail and fairness
Bail and the importance of liberty are well known concepts. Bail determines whether an individual may return home while awaiting trial or remain in custody, with or without conditions. Yet in contemporary society, it is commonly misconstrued as a way to either punish accused persons who have not been formally found guilty, and so cannot yet be called offenders, or as a ‘get out of jail free’ card used by the wealthy or powerful.
For this reason, it might be surprising to learn that the concept of bail is a critical aspect of the rule of law and is an example of how our legal system reflects principles such as the presumption of innocence. When considering an application for bail, the bail authority weighs up their right to liberty against other considerations, such as the safety of the community, the interests of justice, and the need for the accused person to appear at court as part of the trial process. It can take months or even years before a matter comes to trial.
Bail in the media
The topic of bail quite often appears in the media due to high profile crimes being committed by individuals who have been released into the community on bail. Some examples you may have heard of include:
- the sexual assault and murder of Jill Meagher in Melbourne in 2012;
- the Lindt Café Siege in Sydney in December 2014;
- the Melbourne Car Attack on Bourke St in January 2017;
- a growing number of car and property thefts committed by young offenders on bail across NSW and QLD, particularly in regional areas; and
- various cases of homicide committed by offenders bailed on charges relating to domestic violence offences across Australia.
The perpective given in the media often portrays alleged criminals and the award of bail to them in a very negative light, questioning the validity of bail decisions. This can cause community distrust in the bail process and the justice system, often simplifying the complexity of the indvidual circumstances of the accused and the intricacy of the reasoning for the decision.
Bail is a balancing act for the justice system as it tries to create just outcomes for victims, accused persons and the the community. Victims of crime and the public have the right to feel safe in their community, but people accused of committing offences also have the right to the the presumption of innocence and the right to liberty. Therefore, the bail process must uphold important human rights and rule of law principles to ensure that the legal system remains fair and just.
Presumption of Innocence
In our society based upon the rule of law, a person can only be punished for a breach of the established laws of the land. A person is only considered guilty for breaking a law when the justice system, based upon satisfactory legal evidence, rules that the accused is guilty. Before this time, even if an accusation has been made, the accused is still considered innocent according to the law. This principle is called the Presumption of Innocence.
The presumption of innocence ensures that people are not punished before being found guilty of the crime they are accused of, and is an important check on the power of the government. It protects the rights of the accused and must be protected at all times.
The International Covenant on Civil and Political Rights (ICCPR) Article 14.2 states,
Everyone charged with a criminal offence shall have the right to be presumed innocent until proved guilty according to law.
However, the presumption of innocence is not absolute – there are good reasons why a person can be deprived of their liberty before being found guilty. Bail is one such example. The process of granting or refusing bail in the courts must be carefully considered to ensure there is an appropriate balance between the rights of the individual to be presumed innocent and the safety of the community.
The ALRC (Australian Law Reform Commission) discusses this balance regarding bail that is;
‘process-oriented’, aiming to ensure that the accused re-appears in court either to face charges or to be sentenced.
And, that
a person who is on bail before trial has not been convicted of an offence, [which] accords with the principle of the presumption of innocence.
Right to Liberty
Article 9 of the ICCPR dictates that persons will
‘not be subject to arrest and detention except as provided for by law, and provided that neither the arrest nor the detention is arbitrary’
If an individual is arrested, they should be informed of the reason for their charges and must be tried before court within a reasonable period per Article 9 of the ICCPR. The bail process must consider the weight of depriving someone of their freedom as they await trial in addition to other mitigating and aggravating factors.
Community Safety
It is often a difficult juggling act to prioritise the safety of ordinary citizens in the community against the presumption of innocence and right to liberty that an accused or unconvicted offender is otherwise entitled to.
Interrelationship of Bail and Rule of Law
The rule of law plays an integral role in shaping bail laws because its principles are based on the presumption of innocence and the right to liberty. The legal system must be careful to uphold the true purposes of bail and the Government must ensure that bail laws remain appropriate for securing those objectives.
