Bail Amendment Bill

  • enacted

Commentary

Recommendation

The Law and Order Committee has examined the Bail Amendment Bill and recommends by majority that it be passed with the amendments shown.

Introduction

This bill seeks to amend the Bail Act 2000, the Children, Young Persons, and Their Families Act 1989, the Sentencing Act 2002, the Bail Amendment Act 2011, the District Courts Act 1947, the District Courts Amendment Act 2011, and the Summary Proceedings Act 1957, in order to improve public safety and enhance the integrity of New Zealand’s bail system. The bill seeks to introduce a reverse burden of proof for offenders charged with serious violent offences and class A drug dealing offences, and provides for district court judges to deal with bail matters of defendants charged with drug dealing offences. It also seeks to remove the strong presumption in favour of bail for defendants aged 17 to 19 years who have previously been sentenced to imprisonment, and seeks to enable the Police to uplift and return young defendants in breach of their bail curfews to the custody of their parents or caregivers. Police would also be able to arrest a young defendant who was believed on reasonable grounds to have significantly or repeatedly breached a condition of bail. The bill seeks to remove the ability of the Police to impose a requirement for monetary bonds and sureties on defendants; and it would make a person convicted of the failure to answer police bail liable to three months’ imprisonment as an alternative to the maximum fine of $1,000. It also seeks to create an electronically monitored bail regime by writing current practices into legislation.

In the course of our consideration, we also heard evidence on Petition 2011/24 of Tracey Marceau on behalf of Christie’s Law Group and 58,000 others because some issues it raised were relevant to this bill, while others fell outside its scope. We will examine issues outside the scope of this bill when we consider the petition.

The commentary covers the main amendments we recommend to the bill. It does not cover minor or technical amendments.

Commencement

We recommend amending subclause 2(1) so that the provisions excluded from subclause 2(2) would come into force 30 days after the bill receives the Royal assent. This amendment would allow for the implementation of necessary operational changes as a result of this bill.

Amendments to the Bail Act 2000

Just cause for continuing detention

We recommend inserting new subsection 8(4B) in clause 6 to allow a court considering a bail application to take into account the defendant’s co-operation with authorities in their investigations or prosecutions, if this is relevant to the court’s assessment of the risk that the defendant will fail to appear in court, interfere with witnesses or evidence, or offend while on bail. As introduced, the bill would prevent the court from taking such considerations into account. While it is not appropriate to grant bail in return for information, co-operation with authorities could indicate that the defendant presents a relatively lower risk.

Granting of bail to defendants under 20 years of age

Under the bill as introduced, clause 9 would amend section 15 to remove the strong presumption in favour of bail for defendants aged 17 to 19, if they had previously been sentenced to imprisonment. We recommend amending section 15 in clause 9 so that this would apply only to 17-year-olds, 18- and 19-year-olds becoming subject to the standard adult test for bail. We considered a number of factors when examining this issue.

Young defendants who have served a previous prison sentence offend on bail at a significantly higher rate than those with no history of imprisonment. For example, from 2004–2009, over half of young defendants who had served a previous prison sentence were convicted of offending on bail, compared with less than a quarter of young defendants who had not previously been sentenced to imprisonment. We believe that, if the defendant is 17 years of age, is accused of committing a serious crime, and has previously been sentenced to imprisonment for a separate crime, the reverse burden of proof should apply, subject to the judge’s discretion.

We are aware of the principle that adults, young people, and children should be tried with regard to the crime they are accused of, rather than their age, because age affects the judicial treatment of a particular crime. We recognise that imprisonment can affect long-term rehabilitation, and therefore that detention of children and young people should be a last resort. We believe it appropriate that, subject to the judge’s discretion, a 17-year-old defendant be granted bail unless he or she has previously been sentenced to imprisonment.

We were concerned that this clause might be inconsistent with New Zealand’s international obligations. New Zealand has ratified the United Nations Convention on the Rights of the Child, upon which policy and legislation concerning children and young people, 0–17-year-olds inclusively, ought to be developed. Furthermore, the United Nations Standard Minimum Rules for the Administration of Juvenile Justice reinforce the principle that detention of children and young people should be a last resort, and as short as possible. The rules indicate that, whenever possible, detention pending trial should be replaced by alternative measures, such as close supervision. To align this legislation with New Zealand’s international obligations, we believe that those aged 17 should be considered differently from adults facing similar charges, because of their age.

We considered all of these issues, and decided that we needed to find a balance between upholding a defendant’s criminal process rights, enhancing public safety, and meeting New Zealand’s international obligations. We believe that this amendment finds the right balance.

Regulation making powers

The Regulations Review Committee expressed concern that subsection 30B(3) in clause 17 would allow the making of a regulation that had the effect of amending a provision of the principal Act, otherwise known as a Henry VIII clause; as a matter of principle only Parliament should be able to amend provisions of an Act, and this should be done in primary legislation, not in regulations. We recommend deleting subsection 30B(3) to remove the ability for this subsection to amend the principal Act outside of legislation.

Amendments to the Children, Young Persons, and Their Families Act 1989

Arrest a child without warrant

We recommend inserting new section 214A in clause 26 to empower a constable to arrest without warrant a child or young person who has been released on bail and has repeatedly breached his or her bail conditions. Under the bill as introduced, police could arrest a young person in these circumstances, but it was not clear that the provision also applied to children. Under the Act, a child is a person aged less than 14 years, while a young person is aged more than 14 years but less than 17 years. We were told that some children and young people disregard their bail conditions because they are aware of the restrictions on their arrest, and consider that this amendment could help to combat such behaviour.

There are existing safeguards, and more being developed, to guide police conduct regarding arrests of children and young people. Subsection 214(4) of the Act, for example, requires police officers who have made such arrests to justify them to their superiors. The Police are currently developing operational guidelines on the application of the power to arrest for repeated breaches. Such guidelines will help prevent children from unnecessarily being arrested without warrant. We understand that they are likely to set out explicitly what a police officer needs to consider before undertaking such an arrest, for example, whether to first issue a warning.

Significant breach of bail

We recommend replacing subparagraph 214(2A)(c)(i) with new subparagraph 214(2A)(b)(i) in subclause 26(3) to remove the provision referring to “significant” breaches. Under subclause 26(3) as introduced, police would be able to arrest a young person without warrant if they were satisfied on reasonable grounds that the defendant had significantly or repeatedly breached a condition of bail. In this case, the term “significant” is open to interpretation, and likely to complicate police officers’ decision-making when they are considering making an arrest. Existing arrest powers in section 214(1) are likely to be sufficient when a defendant’s breach appears significant. Consequently, we also recommend amending paragraph 235(1A)(b) in subclause 26(4) to align it with subclause 26(3).

The detention of children and young people

We recommend deleting paragraph 239(1)(d) in subclause 26(6) to avoid potentially increasing the number of children and young people being detained in custody. The subclause as introduced is intended to empower the Youth Court to order the detention of a child or young person who has significantly or repeatedly breached a condition of bail and is likely to continue to do so. This provision could lead to children or young people being detained unnecessarily, which would contravene New Zealand’s international obligations. We believe that the court’s ability to reconsider bail decisions at any time renders this provision unnecessary.

Uplifting children and young people in breach of bail curfews

Under the bill as introduced, the Police would have the power to uplift defendants younger than 17 years old found in breach of their bail curfews, and return them to the custody of their parents or caregivers. If the defendant failed to comply with police’s attempts to uplift and return him or her to compliance, the intended outcome would be unclear. In this situation, subclause 26(7) would not provide police with any safeguards or powers associated with an arrest power of a child or young person. Potentially, this subclause could complicate the relationship between the existing care and protection provisions in the Act and the youth justice system. Therefore, we recommend deleting subsection 240(3) in subclause 26(7).

Impact on prison capacity

The intent of the bill is to make it harder for bail to be granted to defendants who are charged with or have previously committed serious offences. We acknowledge that doing so would inevitably increase the number of defendants remanded in custody. We are aware of concern that this bill could increase costs, put pressure on resources, and hinder rehabilitation. We note that the increase in the number of prison beds required each year would probably be modest. For example, applying the reverse burden of proof to defendants charged with class A drug offences would probably require 8.5 additional prison beds each year. While the number of prisoners held on remand would increase, the amount of offending on bail might be reduced. Defendants with the highest risk of offending on bail would be remanded in custody, thus increasing public safety. Ultimately, judges would continue to have discretion to consider how defendants are to be bailed.

Minority views

New Zealand Labour Party

Despite a major tightening of the Bail Act by Labour in 2000 and further changes to the Act in 2011 which had a minor impact, the level of criminal offending while on bail remains unacceptably high.

Estimates indicate that one in five people reoffend while on bail. Much of this is minor offending but between 2006 and 2010, 23 people were convicted of murder while on bail, 21 were convicted of homicide, 7,146 of acts intended to cause injury, 1,132 of abducting, kidnapping, or threatening behaviour, and 763 of sexual assaults.

The impact of this bill will be to deny bail to a relatively small number of people on the margins who under the current law would have been released on bail.

The Ministry of Justice estimates are that as a result of this law change, 50 additional prison beds will be necessary, with approximately 350 extra people held in custody for some period each year, out of the tens of thousands of bail applications heard annually.

Labour supports a reverse onus of proof operating in cases where the presumption of innocence needs to be constrained by evidence of high risk to public safety. Bail is already conditional on a judge being satisfied the defendant will not reoffend, abscond, or interfere with witnesses.

The reverse onus will cause judges to look more carefully at higher-risk cases, but the discretion quite properly remains with the judge to look at each case on its individual merits. The Attorney-General advises that these measures are consistent with the Bill of Rights.

The bill also removes the stronger presumption in favour of bail currently applied to 18- and 19-year-olds because of their age. Such persons under law are in every other respect considered as adults, and offending risks on bail are higher at these ages than for other age groups. Young people aged 17 continue to receive a stronger presumption for bail, provided they have not previously been imprisoned.

Labour accepts the recommendation of Youth Court Judges that police powers of arrest without warrant for children and young persons is necessary where the alleged offenders repeatedly breach bail in a serious and significant way. However, we believe that the statute should require that the breaches be significant as well as repeated, as judges have stated that the new power “needs to clearly exclude the trivial while providing the Police with the ability to be effective when faced with serious and significant breaches of bail”.

Labour’s principal concern, however, is that this bill does not address some of the key systemic reasons for a high level of offending on bail.

A critical issue that the Government must address is delays in the court system that result in people being out on bail for a long period of time waiting for their cases to be heard. There has been a significant increase in delays in Auckland and Manukau, for example, before cases come to court, which increase the likelihood of offending while on bail.

We also believe that because of the production-line manner in which bail applications are heard, more assistance should be available to judges to help ensure their decisions in finding a proper balance between presumption of innocence and public safety are well founded. The provision of risk assessment tools for judges is necessary. Proper analysis of cases where bail decisions result in further serious offending so as to determine whether and how this might have been avoided is also necessary. This however should be done within the judicial system rather than from outside to avoid undermining the independence of the judiciary.

These are issues which need to be examined further when the Committee considers the petition on behalf of Christie’s Law Group.

Green Party

The stated purpose of this bill is “to improve public safety and ensure the overall integrity of New Zealand’s bail system. The changes will make it harder for those accused of serious offences to get bail”. The arguments put forward proposing that the latter “changes” will produce positive outcomes have not been persuasive, and the Green Party will continue to oppose the bill. It is recognised that problems do exist, but this bill does not offer long-term solutions to those problems.

The bill would compromise a number of New Zealand’s international commitments to fairness and the maintenance of human rights; it contravenes sections of the New Zealand Bill of Rights Act 1990, and is unlikely to produce the desired improvements in public safety.

Many of the provisions contained in the bill appear to be a purely political response to expressions of public concern about crime rather than a considered attempt to improve justice outcomes. Unfortunately much of that concern is based on misinformation aided by a vocal minority calling for excessively punitive measures, and some instances of sensationalist media reporting.

The bill widens the range of offences that call for a “reverse burden of proof”, despite the challenge this poses to a basic principle of law, that a person is innocent until proven guilty.

This bill would significantly reduce judicial discretion when hearing bail applications, despite the exercise of discretion also being a basic principle of judicial practice.

The perception that judges are not sufficiently accountable, and so ought to be subject to additional constraints, does not stand up to analysis. Advice received by the committee from the Justice Department outlined the various processes and procedures that are in place to ensure that the judiciary remains independent and impartial.

The bill would compromise the presumption in favour of bail for those aged 17–19 years, where the accused person had already served a term of imprisonment. As well as being an explicit admission that imprisonment is unlikely to reduce the likelihood of young people offending, it also contravenes relevant international obligations. In any case, section 142 of the Crimes Act 1961 allows sufficient scope to allow for the detention of a person in this age group, and no extension of the power to detain is necessary or desirable.

Appendix

Committee process

The Bail Amendment Bill was referred to the committee on 10 May 2012. The closing date for submissions was 29 June 2012. We received and considered 285 submissions from interested groups and individuals. We heard 44 submissions, which included holding hearings in Wellington and Auckland.

We received advice from the Ministry of Justice and the Parliamentary Counsel Office. The Regulations Review Committee reported to the committee on the powers contained in section 30B in clause 17.

Committee membership

Jacqui Dean (Chairperson)

David Clendon

Kris Faafoi

Hon Phil Goff

Ian McKelvie

Mark Mitchell

Richard Prosser

Jami-Lee Ross

Lindsay Tisch