Fixing bail

THE DEBATE over legislation denying people on multiple charges bail has overshadowed more fundamental questions about the bail regime and whether the system is working as it should.

The case involving Marlene McDonald is before the courts. It is for the court to hear and assess the evidence and to consider any legal points. That is a process that must be free and fair and not subject to any form of interference or premature assessment.

Meanwhile, however, tangential questions are raised by the circumstances surrounding the general matter of bail. According to media reports, McDonald, who was held by police since last week Thursday, was granted bail in absentia on Monday afternoon. Yet, it was only on Wednesday she was able to secure it.

McDonald’s lawyer Pamela Elder SC said her client had a right to be brought before a judicial officer once charges were proffered against her early on Monday morning, and a right to reasonable bail. The exact cause for the delay in the processing of bail is not clear. It has been suggested the delay reflected lassitude in the system.

The problems of securing bail in this particular case begs questions in relation to the criminal justice reform undertaken two years ago.

Bail is about balancing a person’s right to liberty with the need to protect the State and society at large. When a judicial officer grants bail it is no trivial matter: factors have been weighed and an appropriate course of conduct determined. If a person who has been duly granted bail is capable of securing it but is then unable to, that represents wasted time and a frustration of the overall system.

In response to a large number of cases of people who were granted bail being unable to secure it for all sorts of reasons, the State in 2017 brought legislation to address this very matter. The Access to Bail Amendment was passed in both houses, but it was only proclaimed this year – in February. The authorities should carefully review how this legislation has been working and ascertain if there are teething problems that need to be ironed out.

For instance, is it justifiable in today’s day and age for the fourth schedule of the act to specify only certain days and times for the taking of security for bail at prisons? Does the law get the balance right? Should it not veer towards the side of the liberty of the subject at any time, on any day and at any hour? Or do we only have human rights from Monday to Saturday from 8 am to 6 pm?

The Chief Justice, the Cabinet ministers charged with legal matters, the Law Association and the Criminal Bar Association should examine whether the system could benefit from improvements moving forward.


"Fixing bail"

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