Bail laws to be strengthened to protect public safety

The Government is to make a series of changes to bail laws to improve public safety.

The changes build on work the Government achieved in its first 100 days in office to reverse Labour’s 2007 decision which made it easier for defendants to get bail.

“This announcement fulfils the other half of our 2008 election promise to review aspects of the bail system,” Mr Power said.

The changes were canvassed in a public consultation document released on March 15 this year which provided a series of preliminary proposals for the public to make submissions on. The public had two months to submit on the document and 49 submissions were received.

“These changes are designed to achieve the right balance between public safety and a defendant’s right to be considered innocent until proven guilty, and to not be arbitrarily detained.”

The proposals fall into three categories and will be included in a Bail Amendment Bill to be introduced to Parliament early next year. They include:

Reverse the burden of proof to target defendants arrested for the worst crimes and those at the highest risk of offending while on bail:

• Defendants charged with murder or serious class A drug offences will have to prove they don’t pose a risk to the public or their trial in order to be granted bail, as opposed to the prosecution having to prove a defendant poses a risk of absconding, interfering with witnesses or evidence, or offending while on bail. The reverse burden for murder recognises the seriousness of the offence while for class A drug offences it recognises that a third of defendants offend while on bail.
• Widening the list of violent and sexual offences where the reverse burden of proof applies to those with a history of such offending to include sexual conduct with a young person under 16, kidnapping, aggravated burglary, and assault with intent to rob. This focuses on defendants with the highest risk of committing serious offences while on bail, rather than those with the highest rates of offending on bail (which may include non-serious or trivial offences).

Improving the integrity of the bail system:

• To confirm current practice, making it clear in legislation that bail will not be granted in return for information. Public safety and a fair trial must be the primary concern when deciding whether to grant bail. Bail should not be used as a bargaining chip in return for information from the criminal underworld.
• Increasing the penalty for failure to answer Police bail so that the offence is punishable by up to three months’ imprisonment, in addition to the existing penalty of a fine of up to $1000.
• Reducing the number of situations where a defendant is “bailable as of right” because some of these offences can cause serious harm to others (e.g. abandoning children, injury by an unlawful act, and failing to provide the necessaries of life).
• Putting the electronically monitored bail regime into legislation to ensure it is administered consistently and effectively.

Strengthening bail for young defendants:

• Making defendants aged 17 to 19 years old who have previously served a prison sentence subject to the standard (adult) tests for bail, rather than the strong presumption in favour of bail that currently applies (a court may remand a defendant of this age in custody only if it is satisfied there is no other course of action acceptable in the circumstances, or if the reverse burden of proof applies). Between 2004/09 more than half of young defendants in this category offended while on bail.
• Enabling the court to detain defendants under 17 years of age who significantly or repetitively breach bail conditions. Currently, unless it is a particularly serious breach of bail conditions there is little police can do to immediately act on a breach.
• Enabling police to uplift young defendants found in breach of court-imposed curfews, and return them home or to a place where they will comply with the curfew.

“New Zealanders have a right to feel safe in their homes and their communities and these changes reinforce that.

“These changes will improve public confidence in the bail system and ensure that bail will be harder to get in marginal cases where the court would previously have had no choice but to release a defendant on bail.”

Mr Power said the changes will result in some increase in fiscal costs for the justice sector, such as additional costs for legal aid, and costs resulting from more defendants spending time in prison pending trial. It is estimated the extra cost could be up to $4.5 million per year with the funding coming from existing baselines.

More information on the Government’s review of parts of the bail system is available here.

More information on the Government’s 2008 changes to bail which reversed the Labour Government’s increase in the threshold for remand in custody from 'a risk' that the defendant may abscond, interfere with witnesses or evidence, or offend on bail, to 'a real and significant risk' can be found here.