How do tough bail laws threaten the presumption of innocence?

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The presumption of innocence is a fundamental principle of the rule of law and Australian criminal law.

It posits that a person is to be presumed innocent until and unless the prosecution is able to establish his or her guilt beyond reasonable doubt.

The principle is meant to ensure that people are not pre-judged or punished over unproven allegations, and are afforded a fair trial.

Arrest and bail

If you are arrested in NSW, a friend or family member can “bail” you out of police custody for a sum of money. The money acts as a surety that you will appear in court on your trial date, and will not commit crimes while on release from custody.

If police refuse your bail, they must bring you before a local court magistrate as soon as is practical – usually that afternoon or the next day – for the magistrate to decide whether you should be released on bail before trial. A whole range of things come into their decision, including any concerns that you might:

  • Fail to appear at future court proceedings
  • Commit a serious offence
  • Endanger the safety of victims, individuals or the community, or
  • Interfere with witnesses or evidence

If the judge decides you present an “unacceptable risk” of doing any of the above, he or she must refuse bail, and you will be taken into what is known as remand custody. This means you will be held in jail until your trial date.

How can they imprison me before I’m found guilty?

In light of the presumption of innocence, you might wonder how a person who has not been found guilty could be kept behind bars on remand – some for a year or longer. Doesn’t the concept of locking up a person who is presumed innocent undermine the presumption?

Bail laws are becoming increasingly harsh in NSW, which means more people are being locked behind bars awaiting their court dates than ever before. From 2012 to 2017, the number of inmates on remand increased by 87 per cent in NSW and currently stands at more than 13,000.

Source: Australian Bureau of Statistics

Many of these people will ultimately have their charges dropped for lack of evidence or will be found not guilty in court, yet the damage of being imprisoned for long periods of time will already have been done. Imprisonment – whether guilty or innocent – has been shown to significantly and negatively affect people’s relationships, careers, finances and mental health.

Practical experience in the local courts

Many local court magistrates feel the pressure of media attention on criminal cases, and will sometimes see fit to refuse bail on the basis of “community expectations” and “community protection”. Whether guilty or not, being on remand can have devastating effects on the person who is accused.

Of course, there are cases where particularly dangerous people with lengthy criminal histories can and should be refused bail. However, many criminal lawyers will tell you that these cases are rare – the majority of people who are currently being refused bail fall outside this category.

Part of the problem is that radio shock jocks and tabloid newspapers regularly misrepresent criminal cases – or focus on rare and unusual cases where a person who is granted bail commits a further crime. It is easy to make unsubstantiated judgments as an outside observer swayed by media exaggeration and hyperbole. However, many lawyers and people who actually work in the criminal justice system acknowledge that the balance between protection of the community and presumption of innocence has swung too far away from the presumption of innocence.

Sadly, thousands of people who will ultimately be released without a conviction are currently being held behind bars.

“It’s not my problem!” Pay attention – it actually is

All too often my firm is contacted by those in custody – or by their family members or friends – who are outraged that a person could be arrested and imprisoned on a mere suspicion of guilt, without any supporting evidence.

They say things like, “How could this be? This is Australia, isn’t it?”. The reality is that anyone can be accused of a crime and arrested for that alleged crime. I have personally seen countless cases where police suspicions turn out to be false.

Despite this reality, the public – influenced by the mainstream media – seems to be calling for increasingly harsh bail laws. “Lock ’em up and throw away the key!” is a phrase many cry when they hear media reports of an arrest for a serious crime. “If you’ve done nothing wrong you have nothing to fear”, they regurgitate.

But tough bail laws, and other laws which undermine the presumption of innocence, can affect anyone.

We should be careful not to allow governments to take away our fundamental safeguards and protections. News of “tough new bail laws” or politicians announcing objectives to be “tough on crime” should spark alarm bells.

If we don’t pay attention, it may affect us personally when we least expect it.