Monday, 11 August 2008

Bail and the presumption of innocence

I have just heard on the radio that the Conservative Party is to suggest a tightening of the law on bail so that people with previous convictions for serious offences should be kept in custody when arrested and charged. The details of their new move have not yet been disclosed, but I want to address the principles of the subject.

The starting point of any discussion of this subject must be the presumption of innocence. We are all presumed to be innocent until the contrary is proved beyond reasonable doubt. When someone is arrested by the police it is because they are suspected of having committed an offence. One thing is so obvious that it should not need to be said: nothing has been proved at that stage. They might have done it, they might not. But there is more to it than that because the mere fact that they have done it is not enough, the State must prove that they have done it. If the State cannot prove a charge, the suspect must be freed.

Does this mean that thousands of guilty people walk free from court every year? Yes, of course it does. Does this mean that thousands of guilty people are arrested but not charged? Yes, of course it does. Why? Because the harm done by convicting one innocent person outweighs the harm done by letting thousands of guilty people walk free. The case of Barry George is a salutary reminder that the innocent are sometimes framed by over zealous police officers and even the most fair minded coppers are sometimes mistaken in their belief that a particular person has committed an offence. The presumption of innocence is not a wishy-washy concept designed to protect the guilty, it is a sensible principle designed to protect the innocent. Applying a presumption of innocence we must ask what is sufficient to justify attaching the label "criminal" to the accused person. Our answer for hundreds of years has been, proof of guilt beyond reasonable doubt. Only if that very high standard of proof has been met can someone be subject to a criminal sentence. Then we have to ask what the sentence might be. Obviously it depends on the offence, some offences justify a fine, some justify community service and the most serious justify imprisonment. Lest there be confusion, when I say "justify" I mean "justify according to present sentencing guidelines". Prison, the deprivation of physical liberty, is reserved for the most serious offences. Even if the current threshold for imposing a prison sentence is too low, it will still be reserved for the most serious offences.

So, where does bail fit in? Once someone has been charged a decision must be made whether he should be kept in custody pending trial or allowed his freedom. The jargon is that he is "released on bail" or "remanded in custody", bail is the obligation to turn up for trial to answer the charge. It is an exception to the presumption of innocence. Because an accused person is presumed to be innocent the mere fact of being accused should, one might think, carry no penalty. Such a thought would be correct. But there is another factor at play, the need to uphold the integrity of the court system. The essence of the current law is that an accused person should be released pending trial unless there is a substantial risk that he will not turn up for trial (bail can be refused on other grounds but this is the most important one).

If there is a substantial risk that someone will not attend court there is nothing unfair in taking steps to reduce that risk, however all steps taken must balance the need to secure attendance at court and the need to maintain the presumption of innocence. Detaining someone in custody pending trial is a serious step. Just a few weeks ago we were all asking how detaining suspects for up to 42 days without charge could be justified and the government's pathetic response was that there might be exceptional cases in the future in which such a power will be needed. It seems pertinent to ask what difference there is between detention before charge and detention between charge and trial. The only difference is that those responsible for laying charges have decided there is evidence which might result in a conviction, that is not much of a difference yet it brings into play the rules on bail which, if refused, can result in months of custody despite the suspect being presumed innocent at all times. It must be borne in mind that a decision to refuse bail can usually only be reversed if circumstances change, so bail should only be refused for very strong reasons.

The refusal of bail simply because the suspect has a long criminal record would be a dangerous step to take. Under the current law a history of offending can justify detention in custody pending trial but the presumption is that it should not. I infer that the current proposal involves a reversal of that presumption and I believe such a reversal cannot be justified. It is fundamentally inconsistent with the presumption of innocence and gives rise to a substantial risk of serial offenders being pressurised into pleading guilty to a lesser charge because they are going to spend months in prison come what may. It matters not how many examples can be cited of people with criminal records committing offences when on bail because to suggest that that justifies such people being refused bail is no different from suggesting that they should be imprisoned for life because they might commit other offences if allowed their liberty.

Either we have a presumption of innocence or we do not. For as long as we do, we must protect it vigorously and create exceptions only where there are extremely strong reasons for doing so. Grabbing headlines is not enough.


Pogo said...

"It matters not how many examples can be cited of people with criminal records committing offences when on bail because..."

Agreed in general. However, in the specific - if a particular person has, on previous occasions, committed offences whilst on bail, has broken bail conditions or failed to turn up at court - there should need to be exceptional circumstances for bail not to be refused, and this should be made very clear to someone being granted bail for the first time... "F*ck-up and you'll never get bail again."

But maybe I'm an old fascist. :-)

Great blog BTW.

TheFatBigot said...

Thank you for your kind words Mr Pogo.

As the current law is applied someone with a record of breaching bail conditions, committing offences on bail or not attending court would be likely to be refused bail; but to some extent it depends on what he is charged with this time round.

My concern is with the concept of formally reversing the presumption of bail. Where there is good reason to keep someone in custody it can be done without introducing a law which reverses the presumption of innocence when it comes to bail.