The Tribune

IT all sounded very powerful and purposeful – no more bail for those who commit offences while out on bail already.

In truth, the amendments to the Bail Act being proposed by Prime Minister Philip “Brave” Davis have some legal hurdles of their own to clear.

A number of lawyers responded quickly to the proposals put forward by the government.

First things first, we are currently experiencing a substantial spike in murders. This month, so far, there have been 17 murders.

As last year ended, Police Commissioner Clayton Fernander was talking of how the murder rate was down on the previous year. He said in late December: “Last year, we finished with 128, so we are still down.”

So if that holds true, this spike in numbers is running contrary to that drop.

That is worth bearing in mind as we talk about the need to amend the law regarding bail, if we have been seeing a reduction until this month’s rise.

The suggestion has been repeated a number of times – from the commissioner to members of Parliament – that too many people are being released on bail, too soon.

Mr Davis says the proposed changes would mean bail is automatically revoked for people who violate their bail conditions.

In practice, this would appear to mean that magistrates would no longer be able to administer punishments for those who violate bail conditions with methods such as fines and so on. Magistrates would instead be forced to remand the accused.

As ever with court rulings, however, there is a right to apply to a higher court for a ruling on a matter – and that would be the case here, with applications able to be made to the Supreme Court for bail, where the judges there can make a decision on the matter.

What that will mean in practice is extra cases going to the Supreme Court for rulings that would have been dealt with previously at the magistrates level.

That could well add to the problem that lies at the root of the situation where so many bail grants are given – the backlog of cases.

We already see numerous cases where the defendant is being tried years and years after the alleged offence. Every person accused is considered innocent until proven guilty – a value at the heart of our justice system. It is up to prosecutors to prove someone is guilty beyond a reasonable doubt. If that person is denied bail – for potentially years while they await their verdict – what happens to the innocent person who has lost years of their life with an unproven accusation?

All well and good, you might say, but these changes apply to those who breach bail conditions while they’re allowed out. Well, again, innocent until proven guilty – each of those alleged breaches is a fresh accusation.

At present, some might well admit guilt at the magistrate’s level and take the fine that goes with it. Those fines will be for such things as failing to charge their monitoring device, for example, and The Tribune has published a number of stories where people have raised concerns over the reliability of such devices. They will not be fines for claims of new crimes of murder or other serious crimes.

But if the person accused of bail violations knows they will lose their liberty if they plead guilty, it seems far more likely that they will say they are not guilty and go through the process of another court case added to the system. Nothing in the amendments suggest anything that will get to the heart of the problem – the length of time which cases take to progress from accusation to conviction. Unless we are talking about depriving anyone accused of years of their liberty before they are convicted, the real answer is to accelerate the judicial process.

There are other factors to consider in all of this too – such as if this is really going to make a difference in the number of people being released on bail, where are we going to put all the extra people who will be in prison instead? Have we got the capacity, have we got the manpower, has the funding been allocated?

And all of that is not even taking into account the bone of contention many lawyers have with the proposals, summed up neatly by attorney Christina Galanos who said: “It’s not for politicians to tell judges to decide how or what manner to exercise their judicial discretion.”

The judiciary is a separate branch from government – and its independence is there for a reason.

At a time when the National Security Minister is suggesting that people just have to accept losing up to 48 hours of their freedom by being detained by police in mistaken identity cases, and the Police Commissioner is talking about it being too soon to release people on bail after just three or four months in prison, that independence is all the more valuable.

The proposals put forward deserve to be thoroughly debated, to ensure constitutional rights are not impinged upon – but also to ensure that the amendments will achieve what the government says they will.

We all want to see crime come down, we all want to see an end to deaths while out on bail or crimes committed by people while out on bail. But if those cases are dealt with faster, we are no longer talking about bail. The innocent go free. The guilty go to jail. That should be the goal we strive towards.