Labour’s bail laws

October 4th, 2009 at 12:00 pm by David Farrar

Some good research by the Sunday News:

VICTIMS’ families fiercely criticised changes to the laws fearing that they would let more dangerous criminals out on the streets.

Now new figures released show nearly 10 per cent, or 5000 more offenders, were freed on bail when the Bail Amendment Act 2007 came in.

And more than a third were facing serious violent charges, including manslaughter and murder.

Fortunately the changes have since been repealed.

In 2006, less than 48,000 defendants were bailed by the courts – that rose to 50,910 in 2007. After the new bail laws were brought in, the numbers of accused freed on bail rose dramatically to 55,730, according to Ministry of Justice figures obtained by under the Official Information Act.

Of those bailed in 2008, almost 20,000 were facing serious violence charges and more than 14,000 were charged with drugs offences.

What would be interesting is how many of those released on bail had previous convictions?

The 2007 Bail Act had changed the law so defendants facing trial or sentence had to pose a “real and significant risk” of breaching bail, reoffending or interfering with a witness for bail to be declined. Before, the defendant only had to pose a “risk”.

This was done as a cost saving measure by .

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26 Responses to “Labour’s bail laws”

  1. Kingi (142 comments) says:

    Another media beat up about the “crime wave”. Crime has been steadily decreasing over the past ten years. Why is it that people think the solution is simply to lock people up and throw away the key? Bail laws were changed because there’s no point having people rotting away in prisons while they await sentencing. Its a drag on the tax payer, its a drag on the prison system and it just makes no sense!

    We have the second highest per capita imprisonment rate in the OECD, only behind the USA! The sooner people realise that restorative justice is the only way to curb the real effects of crime, the better.

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  2. F E Smith (3,273 comments) says:

    “What would be interesting is how many of those released on bail had previous convictions?”

    Most of them would be my expectation.

    “almost 20,000 were facing serious violence charges”

    Unfortunately they do not define the term ‘serious’. There are so many levels of violence offences that one persons serious is another persons moderate.

    “more than 14,000 were charged with drugs offences.”

    Although that will include those charged with possession of cannabis at the lower end of the scale, so isn’t really that serious.

    Don’t forget that most charges have an automatic presumption of admission to bail. Further, the term ‘breaching bail’ is a little misleading. There are a number of considerations in s8 of the Bail Act, but the major three are whether there is a risk they will fail to appear, whether there is a risk they will reoffend and whether there is a risk they will interfere with witnesses. Those are the mandatory considerations and if the judge finds there isn’t a risk of that then they should give them bail. Then you go on to the discretionary considerations, which include the seriousness of the offending, strength of the case and so on. That is why someone like Bruce Emery got bail.

    The fact is you only refuse a defendant bail if they are going to continue to offend or if they are caught by ss10 or 12, which says they have an extensive or serious list of previous offending.

    McVicar is a moron and Power isn’t much better. To be honest, there was little change in most of the country between the changes, only the Auckland courts saw a real differences.

    Edit: Good points, Kingi.

    [DPF: Well people kept saying there was no difference, but the stats suggest there most definitely was]

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  3. starboard (2,447 comments) says:

    McVicar is a moron and Power isn’t much better.

    ..and I think your a moron for thinking they are morons. Thank Christ for McVicar and Power..a couple of sane voices amongst the rabble.

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  4. F E Smith (3,273 comments) says:

    “[DPF: Well people kept saying there was no difference, but the stats suggest there most definitely was]”

    I suspect that most of the change in approach, and therefore the higher rate of grants of bail, would be in the Auckland region courts. Those courts are well known in the criminal justice sector as being the easier places to get bail and also lighter sentences. The rest of the country gets progressively tougher as you head south.

    I do wonder if the Auckland courts use the ‘remand at large’ more than the rest of the country, and perhaps someone who works there can tell me. However, bail is used for everything from drink driving through to murder, so any increase in the number of charges over a year (which I understand there has been over the last few years) will also increase the number of people being granted bail.

    It certainly wasn’t an ‘utter disaster’ as Mr McVicar would have us believe.

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  5. reid (15,505 comments) says:

    The sooner people realise that restorative justice is the only way to curb the real effects of crime, the better.

    I’m not too familiar with the tenets of restorative justice but isn’t it the ambulance at the bottom? Why don’t we use statistics and social networking analyses to identify the 5% who commit the 95% and target those through an all-of-govt approach. Get Housing Corp, Education, WINZ, CYFS and Police to harass the hell out of them 24/7 until they stop doing it.

    You’re right, rotting in prison is not effective. But the one thing we haven’t tried is the targeted sledgehammer no-holds-barred approach. Fuck their human rights and every other right. Through their own choice and warped sense of values, this tiny group of people put the rest of us through hell. Why oh why do we consistently bend over and take it from these wankers?

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  6. Elijah Lineberry (306 comments) says:

    One other reason for the ease of obtaining bail (and why the National government is unlikely to change them) is because of the clogged Court system.

    A defended trial takes at least a year to get to Court.

    To keep someone in prison on remand for that time if they are found not guilty is a miscarriage of justice (guilt and innocence being a matter for a Jury, and not Garth McVicar or Radio Live callers, to decide), not to mention the cost of keeping them in prison.

    If the chap is found guilty and sentenced they are entitled to apply for parole after serving 1/3 of their sentence and as they have already served 1 year many would be looking at fairly short sentences.

    Most prison sentences are not that long – 3 to 5 years (you have to do something fairly substantial for a sentence of longer than five years).

    A three or three and a half year prison sentence would see someone eligible for parole almost immediately, and even a five year prison sentence means you would have the absurdity of spending vast amounts of taxpayer money on remand and a trial only to see someone paroled after 17 – 19 weeks.

    http://www.nightcitytrader.blogspot.com

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  7. backster (2,000 comments) says:

    Right on Starboard…..One other point not covered is the number who re-offended while on bail only a small proportion of whom would have been caught. As for the spin that crime is decreasing that is simply a manipulation of figures to suit the targets the various Police Districts wish to achieve as it has always been.

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  8. F E Smith (3,273 comments) says:

    Elijah, I have a feeling that if we had some stats on it, most sentences of imprisonment would be 2 years or less. 3 to 5 years is starting to get up in the way of sentences, unless you are talking about really serious offences.

    Reid: It is an ambulance at the bottom, but when done well it can show the offender the result of their actions. I have seen it have some good results, but it isn’t a cure-all.

    Backster: spoken like a true cop- everybody is a crim, they just haven’t been caught yet…

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  9. Elijah Lineberry (306 comments) says:

    Oh okay, F E Smith, that does not surprise me; the point I was making is the reason bail is granted so readily is because most chaps when convicted would be paroled fairly quickly making the entire process a joke.

    http://www.nightcitytrader.blogspot.com

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  10. Chris_C (224 comments) says:

    Throwing in an OIA request and doing an archive search isn’t good research. It’s the bare minimum.

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  11. burt (7,085 comments) says:

    The way Labour changed the bail laws would have been something that would have been at home in a Monty Python skit. It’s right up there with – ‘The only way to reduce the number of offenders is to reduce the number of offenses’

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  12. F E Smith (3,273 comments) says:

    Elijah, your point was and is a fair one and the type of sentence at the end of the case is certainly a consideration when bail is in issue. You don’t remand in custody when they are going to get community work or a fine.

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  13. Johnboy (13,335 comments) says:

    “Backster: spoken like a true cop- everybody is a crim, they just haven’t been caught yet…”

    Never forget despite the best efforts of the Rickards et al of this world Cops still rate a long way above Lawyers in the reptile ratings.

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  14. F E Smith (3,273 comments) says:

    Everybody hates us, Johnboy, until they need us. Public opinion does not truth make.

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  15. peterwn (2,932 comments) says:

    Remanding in custody is a deprivation of liberty – the person has yet to be proved guilty – it should be used only where the alleged offender poses a particular risk. Unfortunately for historic reasons remanded in custody is the ‘default’ state, the accused having to explain why he or she should be granted bail.

    The Senseless Sentencing Trust’s attitude wrongly implies that all alledged offenders are scum and should be treated accordingly. They of course would be most upset if a householder who shot an intruder was remanded in custody – thus they are potentially two faced.

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  16. Johnboy (13,335 comments) says:

    “We wondered if Tua would win, even if he won. A career stalled by legal action, his money tied up in legal fees, his fighting curve stalled at a peak on that day—-”

    Guess Tua knows about your so-called ‘truth’ Smithy. He may just about have made enough in two rounds last night to pay for another round of ‘Justice’ from you guys. :)

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  17. F E Smith (3,273 comments) says:

    Nah, they’re civil litigators, Johnboy. All they care about is money, theirs and other peoples! ;)

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  18. Johnboy (13,335 comments) says:

    You are a good man Smithy. The first lawyer I have ever met who does not care about his wealth and how to increase it.
    Truly a pearl among the swine. :)

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  19. F E Smith (3,273 comments) says:

    Johnboy, f I wanted to get rich I wouldn’t be doing criminal law. I just want to enjoy my job (which I do) and earn a decent living (which I do when compared to the average wage!).

    People think that criminal lawyers are scum, but really we are there to help our fellow man (and in this case man embraces women) at what is usually a tough time in their life. I’ve done civil work and, although it pays a hell of a lot better, I find constantly arguing over money to be pretty boring. The sums they dealing with can be phenomenal, however.

    Peterwn: great comment.

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  20. dad4justice (7,406 comments) says:

    Criminal lawyers earn their bucks Mr Smith in a dysfunctional justice system. It’s all a numbers game. Build more prisons Mr Kiwi dumbo.

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  21. GPT1 (2,042 comments) says:

    To be honest I have been practicing pre and post the 2007 changes and I could not tell the difference in terms of the bail decisions given.

    I suspect that the stats have more to do with more charges and, possibly, increased resolution times (which has the same driver). On the more serious offfending (murder for eg) there does, rightly, seem to be an increased willingness to, at least, test the police case before finally rejecting a bail application and leaving someone to rot for up to 2 years without a conviction.

    I doubt there is a more difficult area than bail. No one wants violent offenders on the streets but merely being charged with an offence doesn’t make someone guilty. I have less sympathy for those who s12 apply to (so many qualifying offences that the onus reverses to the defendant) but do we really want the state locking people up on a summary, a history and a 2 page template bail opposition and a mysterious Family Violence score that only the police seem to have the details of?

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  22. CharlieBrown (784 comments) says:

    I think one big consideration our justice system doesn’t take into enough account is the punnishment factor. What ever our justice system dishes out I would argue the first consideration should be on protecting society as a whole, and the second should be deterring other potential criminals from committing crimes by punishing people who commit crime.

    To keep bail laws simpler, people with a recent existing conviction should not get bail fullstop, no questions asked. Bail should only be given when the accused has no recent conviction and isn’t likely to offend again.

    People that think labours changes to bail laws worked, read up on Michael Curran, the bastard who murdered a todler while on bail for manslaughter.

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  23. F E Smith (3,273 comments) says:

    The more that I think about this article the more pointless I think it is. I have to class it as a beat up that has nothing other than scare-mongering at its heart.

    Think about what the article says: Since the changes in the bail laws there was an increase in alleged offenders bailed in the following year.

    That is the entirety of the article. So what is wrong with it? Well, firstly it does not tell us how many people were charged with offences in 2006 and 2007, so we cannot see what sort of percentage increase there was, or perhaps there was a decrease. So the figure of 10% more people getting bail is only accurate if there were the same number of people charged in 2007 as there were in 2007. In addition, don’t forget that the Police can appeal a grant of bail to the High Court, so if this is such a bad thing why wasn’t the High Court inundated with Police bail appeals? Or have the Police been slack in their duty to the public?

    Secondly, the writer of the article shows no link to the increased numbers of grants of bail to any worsening of the crime rate, or an increase in the rate of offending whilst on bail. Three examples are shown, the first is a youth from Matamata who was appearing in the Youth Court, so different rules apply. The second is Bruce Emery, who was a sitter for bail as he had no previous convictions and was unlikely to offend whilst on bail. The third is about an an accused murderer on bail who died in a car crash, with no reference to the circumstances of the crash at all, and certainly no allegation that this was part of a pattern of continued offending by the accused person. So three of the examples given were empty and irrelevant examples. The Chris Kahui example is an interesting one, because on the face of it he actually was a candidate for bail as I think (but am not certain) that if he had a criminal history it was very minor. And one of those breaches of bail was when the town to which he was bailed drove him out. Of course, this example is problematic because Kahui was acquitted, so if he had been refused bail then he would have spent over 12 months in custody only to be acquitted, with no chance of compensation at the end of it.

    Thirdly, the entire premise of the article, and of the opinions of Garth McVicar and Simon Power seems to be that releasing people on bail is a bad thing. They have no evidence of any sudden upsurge in the crime rate as a result, or of any other problems arising whilst on bail. While it may be that persons facing serious charges got bail, there are also persons who do not face serious charges who are denied bail because their criminal history. The justice system operates on a case by case basis, rather than applying a strict rule to everybody. It has to, otherwise injustices occur.

    Fourthly, I note with interest Simon Power’s comment that “The Law Society, the Police Association, the Police Prosecution Service, and even a defence lawyer” said it would be easier for accused persons to get bail. Well, apart from the fact that anybody could see that, it concerns me that Mr Power seems to think that defence lawyers are somehow apart from the Law Society. In fact, the Law Society’s opinion would have come from the Criminal Law committee, which is made up primarily of defence lawyers. Even then, it was apparently only one defence lawyer out of 1000 who said this? Ah well.

    So the article writer fails to make any point other than more people obtained a grant of bail under the changed rules. The writer has done no other research into whether it made a jot of difference in the crime stats and the anecdotes given are basically worthless. And we are supposed to do what? Feel horror because more people accused of crimes are on the streets? You know, along with the other 48,000 or so bailed defendants? Further, even if it is a 10% increase in grants of bail (which is not certain, as I point out above) is that really a major change? Only an extra 10%? One would have thought the prisons had emptied, by the way the article is written! We are then given the places were bail is given the most, without any comparison to the number of charges, or the changes from the previous year or anything of that nature.

    So while it has some interesting stats, the article has no intrinsic value. As GPT said, for most of us the change in the law made no difference. It is not hard for the judge to make a bail decision that is tailored to the wording of the Act so they can achieve their ends, no matter what the law says.

    There will always be people who breach their bail at some point. It is a fact of life. The only way to fix it is to refuse bail to all persons accused of any offence, or perhaps any offence with a maximum sentence of more than 1 year imprisonment. Even then, what happens when some little toe-rag charged with theft under $500 goes and offends whilst on bail? Like I said, the justice system has to work on a case by case basis.

    So I think this article is a beat up that achieves nothing more than some shock value from what are basically meaningless figures.

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  24. dad4justice (7,406 comments) says:

    Mr Smith the remand in custody wings (pods) at our local jailhouse are that fucking full they have got crims living in cupboards.
    Bail a braincell dumb arse kiwi sucker justice system. Our justice system is beyond hope. Only a sicko would work in it!

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  25. F E Smith (3,273 comments) says:

    I realise that it takes a ‘special’ sort of person to work in the justice system, D4J, but I suspect that I more than qualify for that description!

    I also know how full the prisons are, with some police stations housing prisoners as well. Sometimes makes it hard to track them down through the system, although eventully the turn up at court. Mind you, I have a preference for my clients to be in custody because then I usually know roughly where they are when I want to speak to them!

    Edit: Do you really think we should build more prisons, d4j? What would your cut-off be for no bail? And charlie brown: how recent and what type?

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  26. Repton (769 comments) says:

    One other point not covered is the number who re-offended while on bail only a small proportion of whom would have been caught.

    [citation needed]

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