Killing on bail

August 8th, 2012 at 10:00 am by David Farrar

Anna Leask at NZ Herald reports:

Twenty-three people were convicted of murders committed while free on over a five-year period, say Ministry of Justice figures obtained by the Herald.

A further 21 were convicted of “homicide-related” offences committed while on bail.

These included manslaughter, attempted murder and driving causing death.

So 44 people were killed by criminals out on bail, over just five years. Tragic and preventable deaths.

Someone out on bail often is at their most dangerous. They know they are likely to go to jail when their case gets to court, and any crimes they commit during the bail period will not necessarily result in a longer sentence. Hence we have a perverse incentive.

Labour changed the law to make bail easier. That was reversed by National, but I think there is still more to be done.

People are innocent until convicted, but when they already have a criminal record, we can’t allow them to kill 44 people while awaiting trial. I wonder how many of those 44 deaths on bail were done by someone who already had criminal convictions? I suspect almost all or all.

The Bail Amendment Bill aims to change bail laws to improve public safety. One of its changes would reverse the burden of proof for serious violent and sexual offenders.

This means defendants would have to prove to the court that they would not be a threat to public safety if released on bail.

Under the present law, the police must show why defendants should remain locked up.

44 preventable deaths. We can do better.

Between 2006 and 2010, 69,087 people were convicted of at least one offence committed while on bail.

Of those, 7146 were convicted of acts intended to cause injury – mainly assault – 1132 of abduction, kidnapping, false imprisonment, harassment, nuisance or threatening behaviour, and 763 of sexual assaults or offending.

Also far too high.

I wonder what the stats are for people not given bail, who get found innocent – ie spend time in jail they shouldn’t have? Anyone know?

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106 Responses to “Killing on bail”

  1. kowtow (8,160 comments) says:

    Soft on bail is all part of the leftist human rights campaign. Common sense and the concerns for the rights of society went out the window a long time ago.

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  2. eszett (2,392 comments) says:

    I wonder what the stats are for people not given bail, who get found innocent – ie spend time in jail they shouldn’t have?

    Shouldn’t that include people given bail and later found innocent, i.e. people who would have spent time in jail who shouldn’t have, if there were no bail.

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  3. F E Smith (3,324 comments) says:

    Someone out on bail often is at their most dangerous. They know they are likely to go to jail when their case gets to court,

    I don’t accept that at all.   Most people released on bail are not likely to go to prison for the charges they face.  Release on bail is incredibly common in the District Court, for all sorts of offences.

     and any crimes they commit during the bail period will not necessarily result in a longer sentence.

    Again, that is also incorrect.  While it might sound trite, it depends on the charges.  For most people on bail, committing a serious offence whilst on bail will indeed see their sentence increase. It may even take them from a community based sentence to one of imprisonment.

    Don’t forget that it has not been that long since a young man was murdered whilst in custody.  So even remand in custody is not a fail safe.

    And, just so that you know, the National Government’s bail changes made no real difference to the grant of bail.  That said, the Labour changes weren’t that much of a change to practice either. 

    Look at those stats, by the way- 69,000 offences whilst on bail, but only 9,000 are mentioned.  So 60,000 aren’t worth mentioning.  It would actually have been much better to tell us how many people offended whilst on bail, rather than how many offences.  One offence does not necessarily equal one person.  A pro car thief can tilt that quite significantly!

    There is no hard and fast solution to offending whilst on bail. Essentially the only way to ensure there is zero offending is to deny bail to everyone.  Otherwise you are placing trust in them and their history (which is highly relevant to bail) that they won’t offend, at least seriously, whilst on bail.  Nothing is foolproof, however.

    I wonder what the stats are for people not given bail, who get found innocent – ie spend time in jail they shouldn’t have? Anyone know?

    Those aren’t the sort of statistics that the MoJ likes to keep.  I can tell you that it isn’t uncommon, however. 

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  4. F E Smith (3,324 comments) says:

    leftist human rights campaign

    That is just rubbish.  It is recognition by the Courts (and then by the Legislature when things were codified) that a person is innocent of a charge until they are proven guilty, and that no-one should be punished for something that they did not commit. 

    Nothing to do with a ‘leftist human rights campaigns’.  I consider myself right wing but I am very committed to human rights, especially in the criminal justice field.

    EDIT: just re my comment above, can I just point out that there is actually a higher acquittal rate with serious charges than there is for lesser ones. Therefore, denying bail for serious charges will actually result in more people being remanded in custody who are then acquitted.

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  5. Simon Lyall (101 comments) says:

    I think part of the problem is the huge amount of time cases seems to take to come to trial. For example somebody just got sentenced this week for a murder committed in March 2010 when from what I can tell he was probably arrested at the scene.

    Bail would be less of a problem if the time from arrest to trial was weeks or months rather than years.

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  6. peace (26 comments) says:

    Anna leask said
    78,000 people spend time on bail each year in New Zealand. Between 2006 and 2010
    23 were convicted of murder.

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  7. F E Smith (3,324 comments) says:

     Further to my first comment above:

    Someone out on bail often is at their most dangerous. They know they are likely to go to jail when their case gets to court

    would seem to conflict with s7(1) of the Bail Act

    A defendant is bailable as of right who is charged with an offence that is not punishable by imprisonment.

    which means that at least some people who are released on bail cannot go to prison for the offence they are alleged to have committed.

    EDIT: Thanks, peace. So that is 78,000 people on bail each year, with generally between 4 and 6 murders by people on bail each year. So we are talking 1 in 13,000 or so at worst? In 2009 it was 1 in 20,000+

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  8. peace (26 comments) says:

    If this is this is the case should we not stop violent states in USA from comming to NZ that have a higher murder rate than people on bail in NZ ?
    Flint, Mich.
    Population: 102,357
    2011 murders: 52

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  9. peace (26 comments) says:

    Detroit, Mich.
    Population: 713,239
    2011 murders: 344.

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  10. peace (26 comments) says:

    St. Louis, Mo.
    Population: 320,454
    2011 murders: 113

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  11. wreck1080 (3,864 comments) says:

    If a persons previous crimes are not allowed to be considered by a jury, then , why should the bail authorities look at prior crimes?

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  12. thedavincimode (6,606 comments) says:

    Well I congratulate Michegan on its linear murder statistics. Seems a bit counter-intuitive, but there we have it.

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  13. Graeme Edgeler (3,280 comments) says:

    I fail to see how you get 44 deaths, when you are adding numbers which include attempted murders.

    Tragic and preventable deaths.

    Unless you can tell us what these homiciders were on bail for, there is no way you can claim that changes to bail laws would have prevented deaths. I don’t doubt some of them would have been, but some of these deaths likely occurred in respect of people bailed on very minor charges.

    Of those, 7146 were convicted of acts intended to cause injury – mainly assault – 1132 of abduction, kidnapping, false imprisonment, harassment, nuisance or threatening behaviour

    This is a really stupid series of statistics. Assault is not an act intended to cause injury. Assault with intent to injure is an act intended to cause injury, and if these were “mainly assault”, then by definition there were not 7416 convictions for acts intended to cause injury.

    And the lumping together of abduction (7 years), kidnapping (14 years), false imprisonment (*not even a crime!), harassment (2 years), nuisance (1 year) or threatening behaviour (3 months) in some sort of similar grouping is inane. There are are over 1 billion, 350 million residents of China and New Zealand in the world, does this mean that there may be too many Chinese and New Zealand residents on Earth?

    *I’m fine with false imprisonment being used as shorthand for abduction and kidnapping, but when those things are separately listed, it has to carry it’s usual meaning.

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  14. peace (26 comments) says:

    Oakland, Calif.
    Population: 395,317
    2011 murders: 104

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  15. tvb (4,318 comments) says:

    To say a person on bail is at their most dangerous because they are most likely to go to jail is one of the most ignorant things you have ever written. If they present a risk then bail is unlikely. If imprisonment is likely to be the sentence then no bail. If they have bad history of bail compliance then no bail.

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  16. Graeme Edgeler (3,280 comments) says:

    stupid edit lock :-)

    Imagine muscle memory didn’t make me type it’s in that last sentence.

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  17. peace (26 comments) says:

    Anna Leask is a Garth Mcvicar groupie spinning fear crime propaganda as the the nz herald always does for the SS.

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  18. KiwiGreg (3,247 comments) says:

    Too late Graeme, you had me with your argument right up to the inappropriate use of the apostrophe. Now I must disregard everything you write.

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  19. KiwiGreg (3,247 comments) says:

    Believe it or not Oakland used to be really bad, it has significantly cleaned up.

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  20. Graeme Edgeler (3,280 comments) says:

    If imprisonment is likely to be the sentence then no bail.

    That is not true. Imprisonment is the likely sentence for a lot of crimes people still get bail for.

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  21. GPT1 (2,116 comments) says:

    Someone out on bail often is at their most dangerous. They know they are likely to go to jail when their case gets to court, and any crimes they commit during the bail period will not necessarily result in a longer sentence. Hence we have a perverse incentive.
    Do you have any evidence for this or are you just making stuff up because it sounds good?

    For a start you are giving the average criminal more credit for forethought than most have.

    Secondly your premise is wrong. Although totality applies (stepping back and reviewing the overall sentence for all offending) offending separated by time and space attract cumulative sentences.

    And what were these people on bail for?

    Are you advocating no bail at all? A person is arrested and simply locked up until the state can get around to finding the resources for a trial? Actually that’s not a question – it is what this post is advocating.

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  22. kowtow (8,160 comments) says:

    FE Smith

    You can “rubbish” me all you like.

    The courts and administration of justice were once very conservative places through out the Commonwealth.And quite rightly too. They took their responsibility to the wider community very seriously. That has changed and any fool can see that with the evidence of their own eyes.

    That last bastion of the Establishment was overcome some years ago by the leftist human rights campaign and we see the results daily. And a lot of your crowd are sheep in wolves clothing,arrogant lawyers with your degrees and wigs and gowns and a know it all mentality.

    Let’s not pretend that most art in it,any more, for high minded principles ,it’s about putting food on the table or that second or fifth property. Once upon a time maybe,but not any more.

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  23. Graeme Edgeler (3,280 comments) says:

    And what were these people on bail for?

    DPF left that bit out.

    The Herald states: “The majority of the 44 people charged with murder or homicide-related offences while on bail were facing assault and traffic- or vehicle-related charges.”

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  24. Longknives (4,686 comments) says:

    Peace- Mind if I ask what the hell you are rambling on about??

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  25. GPT1 (2,116 comments) says:

    Oh and the likely to go to jail thing is fairly inane as well. If they are convicted s13 applies so if they are likely to go to jail they are in the bin already. If they are on bail pending trial how are they able to predict the likelyhood of jail?

    There is room for debate over bail laws – the strong presumption for continued bail despite breaches by under 20s and where a reverse onus should apply for example but fearmongering, especially that which is ill informed, does not add to the debate. It promotes the erosion of liberties that we seem to take for granted (not to be deprived of liberty without due process to borrow from the US) through ignorance and fear.

    From my read of history and current events a free and democratic system of governance is a rare thing indeed and our system, inherited from England, has taken hundreds of years (often bloody) to evolve yet as a society we seem to be determined to cede greater and greater power out of, largely unfounded, fear.

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  26. ross69 (3,652 comments) says:

    DPF rails against murders being committed while an accused is on bail. What he ignores is that some of these murders may have been committed irrespective of whether the accused was given bail. How many murders are committed by criminals who have previously been remanded on bail? That is a really important statistic that is missing here.

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  27. GPT1 (2,116 comments) says:

    Graeme Edgler: The Herald states: “The majority of the 44 people charged with murder or homicide-related offences while on bail were facing assault and traffic- or vehicle-related charges.”

    Oh right – wonder how many police bailed? How many did police oppose bail? On this occasion DPF and causation appear to be strangers.

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  28. GPT1 (2,116 comments) says:

    Kowtow – I am quite happy to rubbish you too.

    That has changed and any fool can see that with the evidence of their own eyes.

    Ah yes, hyperbole based “evidence”.

    So what exactly are you basing this opinion that “any fool” can see on? Media reports? Extensive longitudinal studies? Your indepth analysis of every bail decision in the country?

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  29. ross69 (3,652 comments) says:

    > Essentially the only way to ensure there is zero offending is to deny bail to everyone.

    Except it won’t prevent offending. Bail is for a limited period of time. That is the problem with DPF’s analysis – and I use the term loosely.

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  30. GPT1 (2,116 comments) says:

    That is not true. Imprisonment is the likely sentence for a lot of crimes people still get bail for.

    13 Exercise of discretion when considering bail pending sentencing

    (1) If a defendant is found guilty or if a defendant pleads guilty, the court must not grant bail unless it is satisfied on the balance of probabilities that it would be in the interests of justice in the particular case to do so.

    (2) The onus is on the defendant to show cause why bail should be granted.

    (3) When considering the interests of justice under subsection (1), the court may, instead of the considerations in section 8, take into account the following considerations:

    (a) whether the defendant is likely to receive a sentence of imprisonment:

    (b) the likely length of time that will pass before the defendant is sentenced:

    (c) the personal circumstances of the defendant and the defendant’s immediate family:

    (d) any other consideration that the court considers relevant.

    Untrue Graeme? Maybe your judges interpret s13 differently but I have generally found them to follow the law and you need a bloody good reason not to end up in the bin pending sentence when prison is likely.

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  31. Graeme Edgeler (3,280 comments) says:

    Untrue Graeme? Maybe your judges interpret s13 differently but I have generally found them to follow the law and you need a bloody good reason not to end up in the bin pending sentence when prison is likely.

    I’m fine with “untrue”. This is a discussion about pre-trial bail, not post-conviction bail.

    People charged with murder or rape can get bail. People convicted of murder or rape cannot.

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  32. GPT1 (2,116 comments) says:

    Hence I used the word convicted and specifically referred to s13. So untrue is, well, untrue.

    So to be clear you have redefined what I say according to your definition of the parameters of the discussion to announce what i said was untrue despite it being factually correct?

    Now that is tertiary level advocacy.

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  33. laworder (288 comments) says:

    tvb wrote

    To say a person on bail is at their most dangerous because they are most likely to go to jail is one of the most ignorant things you have ever written. If they present a risk then bail is unlikely. If imprisonment is likely to be the sentence then no bail. If they have bad history of bail compliance then no bail.

    I’ll start with the statement “If they present a risk then bail is unlikely.” – I wish that were true, unfortunately some of the judiciary do not seem to be very good at risk management, or do not take it seriously. A greater degree of accountability would help here – if the Police oppose bail for someone the judge should have a very good reason for overriding that, and be willing to stake their jobs on it – after all the victims are staking their lives on it whether they want to or not.

    Secondly – “If imprisonment is likely to be the sentence then no bail” and “If they have bad history of bail compliance then no bail.” – again, not necessarily so, and there are a number of examples of both. A poor history of bail compliance should automatically preclude bail, but does not. And many of those on trial for imprisonable offences do get bail – and fair enough in some cases, where the offending involved is not of a violent/sexual nature, or the alleged offending is historic or the accused has no prior history.

    A case the Trust has recently had involvement in meets all three conditions – imprisonable offence charges, prior history of non-compliance, and high risk, yet the offender is STILL on bail. The victim and their family are currently in hiding as a result. No names here as the case is sub-judice, but I can assure you all that this scenario is one we are fairly practised in dealing with now…. offending on bail is a very real problem and DPF is right to raise it.

    As for the statement “a person on bail is at their most dangerous because they are most likely to go to jail” DPF is quite correct when it comes to those on bail for violent/ sexual offending. They really have very little to lose by further offending, and feel that they can act with impunity – personal experience bears this out

    No-one seriously wants to deny bail to non-violent/sexual offenders, or even those in this category that clearly present a low risk (and the Police are in agreement). It is those violent/sexual offenders that for whom both the Police AND the victim/ victims family have opposed bail for that should automatically be precluded from bail, especially if they have in addition a prior history of non-compliance.

    I can see where kowtow is coming from – but I dont know if it is so much a “leftist ” campaign so much as the concept that all should have equal rights regardless of their behaviour towards others, something that underlies many of the issues in the legal system and wider society in the last 50 years.

    Regards
    Peter J
    see http://www.sensiblesentencing.org.nz

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  34. quirky_username (22 comments) says:

    There were 109 murders in NZ in 2008. All of them tragic and preventable. They were all carried out by people. People when they are breathing are at their most dangerous. We must ban breathing.

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  35. GPT1 (2,116 comments) says:

    A case the Trust has recently had involvement in meets all three conditions – imprisonable offence charges, prior history of non-compliance, and high risk, yet the offender is STILL on bail. The victim and their family are currently in hiding as a result. No names here as the case is sub-judice, but I can assure you all that this scenario is one we are fairly practised in dealing with now…. offending on bail is a very real problem and DPF is right to raise it.

    Your argument is that the law has been incorrectly applied not that the law is wrong. Appeal it.

    Your arguments of automatic preclusions of bail appear to presume guilt.

    Risk management is based on evidence – wide evidence in fairness. Bail opposition is often based on supposition. The only way to eliminate risk of offending on bail is to never grant bail. Ever.

    I assume you would support a doubling of MOJ budget to minimise trial delays and a fund to pay compensation for those held on remand and found not guilty?

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  36. GPT1 (2,116 comments) says:

    There were 109 murders in NZ in 2008. All of them tragic and preventable. They were all carried out by people. People when they are breathing are at their most dangerous. We must ban breathing.

    Snorf.

    A step to far surely? Why not just imprison everyone until they can prove they will not be a danger?

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  37. peace (26 comments) says:

    Regards
    Peter J
    see http://www.sensiblesentencing.org.nz

    Soon as I saw your ranting it made me feel sick

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  38. Luke Mutton (247 comments) says:

    Dog whistle, DPF?

    Get the word from on high to stir the plebs, deflect attention from KDC disaster, maybe?

    These lists are pointless, without analysis, just as pointless as the x die on hospital waiting lists each year, until you remove the ones who died from accident, natural causes or something unrealted to the waiting list.

    But hey, analysis has never been a strongpoint for right wing bandwaggoners and kowtow is in his element.

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  39. quirky_username (22 comments) says:

    “The majority of the 44 people charged with murder or homicide-related offences while on bail were facing assault and traffic- or vehicle-related charges.”

    Just because a person has allegedly committed an assault, traffic or vehicle offence, does not mean that they are likely to commit murder, or any other crime for that matter. The likelihood of them committing crime is weighed up when considering bail – sometimes conditions are put in place that will reduce the risk – curfews, non-contact provisions etc, other times bail is denied altogether.

    Once a person is convicted or pleads guilty and is sentenced for a traffic offence or assault, they are free to do whatever they like provided they pay their fine, do their community work, etc.

    A person is entitled to be seen as innocent until proven/pleading guilty. Refusing bail, and even some bail conditions, penalise a person at a time when they are meant to be seen to be innocent (and may well be innocent).

    Although the resulting deaths are tragic, the proportion of persons who kill on bail is small and thoughts of declining all bail because of a few bad apples should not be entertained. If someone wants to kill, they could equally kill when free post-sentencing or when free post-prison or even in prison.

    Statistics can always be manipulated – How many murders are carried out by those who have previously been convicted for minor offences? Does this mean that we should permanently jail those who are convicted for careless use of a motor vehicle just in case they one day kill someone? Or how about – how many murders are carried out by people who were born via caesarean section? Perhaps we should jail all c-section babies for life just in case they one day kill someone?

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  40. peace (26 comments) says:

    laworder
    Covering up any crimes lately ? or traumatising a 93 year old women and her family while helping to gag them or praising the stabbing to death of a 15 year old while traumatising his mother and family.
    Low life freak

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  41. kowtow (8,160 comments) says:

    Leftist conspiracy? Most definitely.

    Who was responsible for the Bill of Rights? Labour lawyers.

    http://en.wikipedia.org/wiki/New_Zealand_Bill_of_Rights_Act

    The UK looked to NZ when they ,Labour,introduced their disastrous Human Rights Act.

    Labour,labour,labour . Lawfare.

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  42. laworder (288 comments) says:

    GPT1 wrote

    Your argument is that the law has been incorrectly applied not that the law is wrong. Appeal it.

    All very well, providing that the offender concerned is remanded in custody during the course of the appeal. Otherwise this course of action will be of little use to the victim/ victims family, given that the appeal process tends in itself to be somewhat drawn out. The outcome may well be that they win the appeal in the end, but have been killed by the offender in the interim, which would be something of a phyrric victory…. not really the best outcome for all concerned really.


    Your arguments of automatic preclusions of bail appear to presume guilt.

    Risk management is based on evidence – wide evidence in fairness. Bail opposition is often based on supposition. The only way to eliminate risk of offending on bail is to never grant bail. Ever.

    As I said previously, we are not opposed to bail generally, but only for those violent/sexual offenders that for whom both the Police AND the victim/ victims family have opposed bail for that should automatically be precluded from bail, especially if they have in addition a prior history of non-compliance. I have no issue with an automatic preclusion of bail for those offenders that fall into this category, which is only going to be a fairly small proportion.


    I assume you would support a doubling of MOJ budget to minimise trial delays

    Minimising trial delays would be a damn good idea, as Simon Lyall pointed out in a previous post. There may be other means of achieving this however without a doubling of the MOJ budget


    ….and a fund to pay compensation for those held on remand and found not guilty?

    If we had the Scottish three verdict system of guilty/ not proven/ innocent then I would have absolutely no problem with compensating those held on remand that fell into the last category.

    Regards
    Peter J
    see http://www.sensiblesentencing.org.nz

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  43. Graeme Edgeler (3,280 comments) says:

    No-one seriously wants to deny bail to non-violent/sexual offenders, or even those in this category that clearly present a low risk (and the Police are in agreement). It is those violent/sexual offenders that for whom both the Police AND the victim/ victims family have opposed bail for that should automatically be precluded from bail, especially if they have in addition a prior history of non-compliance.

    I refer you to the Christie’s Law Campaign, which came out with proposals (see here: http://www.nzherald.co.nz/nz/news/article.cfm?c_id=1&objectid=10788506) which included:

    No bail for any person accused of an offence which attracts a sentence of two years or more.

    It would take too long to list all the non-violent offences this covers (smacking, that guy who recorded the teapot conversation, various copyright infringment offences, joy-riding in a car stolen by someone else etc. etc.), but this got a fairly big protest in support so we can be reasonably confident there is at least a bit of support for something this silly.

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  44. civil serpent (22 comments) says:

    Kowtow @ 12.24pm: “The UK looked to NZ when they ,Labour,introduced their disastrous Human Rights Act.”

    Human Rights Act 1993: passed by a National Government.

    Facts eh. Who cares about ‘em.

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  45. peace (26 comments) says:

    Laworder
    A coward boasting of his courage may deceive strangers, but he is a laughing-stock to those who know him

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  46. Nostalgia-NZ (5,093 comments) says:

    Peter J:

    “As for the statement “a person on bail is at their most dangerous because they are most likely to go to jail” DPF is quite correct when it comes to those on bail for violent/ sexual offending. They really have very little to lose by further offending, and feel that they can act with impunity – personal experience bears this out”

    Please provide the ‘personal experience,’ at this point it just seems like another effort to waste more money otherwise you are stating that there is a situation abroad where Courts, police and lawyers are knowingly letting a dangerous group out on bail to re-offend. That seems to be borne out by the effort, assisted by SST in rewriting bail laws to make Judges accountable. Accountable to who? Garth, you?

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  47. Graeme Edgeler (3,280 comments) says:

    Kowtow @ 12.24pm: “The UK looked to NZ when they ,Labour,introduced their disastrous Human Rights Act.”

    Human Rights Act 1993: passed by a National Government.

    The Human Rights Act (UK) is their equivalent of the New Zealand Bill of Rights Act 1990.

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  48. kowtow (8,160 comments) says:

    civil serpent,

    if you are a civil servant ,or actually whatever you do for a living,read carefully. Go back to my post.Bill of Rights….NZ.

    The Human rights Act refers to the UK one as I clearly stated.

    I see you’re new here. Do read carefully before you allow your leftist prejudices to make a fool of yourself. Now run along……

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  49. GPT1 (2,116 comments) says:

    laworder:
    Drawn out appeal process – I seem to recall the crown having an offender back in the bin the afternoon of the day he was granted appeal. Bail appeals are usually relatively quick and can be brought on for urgency. But again you are placing the power with the state. Denying citizens their liberty without conclusive proof of guilt is a very serious matter.

    Victim and police oppose therefore no bail – that’s not objective in any sense. Why have a Judge at all? Why not just have a complainant and police who can decide what the outcome is?

    If you want to argue thresholds for reverse onus then there is a definite debate. I can see a rationale in a citizen forfeiting certain rights by previous criminal conduct so if x has been imprisioned for strike violent offending within the last, say, 5 years then the onus revserses but your approach is simply charged with violent offence and complainant – their evidence untested – holds the casting vote. That’s closer to sharia law than any democratic system of justice.

    Trial delay – speeding up police disclosure would be a start.

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  50. Graeme Edgeler (3,280 comments) says:

    Trial delay – speeding up police disclosure would be a start.

    The easiest way to speed up trials would be to abolish intercept and forensic evidence. Trials are longer, and trial preparation more extensive in large part because of technology.

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  51. civil serpent (22 comments) says:

    Very funny kowtow! No – seriously – you really are!

    However the Great Left Wing Conspiracy to go all human rightsy hasn’t exactly been rejected by your Righties either: Human Rights Act 1993 was passed by Jim Bolger’s lot.

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  52. kowtow (8,160 comments) says:

    c s

    I agree ,the right has collapsed. Shows how mainstream leftist thinking has become. Lots of examples from around the common law world where the left has pushed and the right simply cave.

    Another reason for referenda on importnt constitutional and social engineering issues.

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  53. tvb (4,318 comments) says:

    Granting bail can be a difficult decision for any Judge but they are there to hold the balance between the freedom of the individual and the risk to society. It is imperfect as the figures of homicides committed while a person is facing charges before the Court. But it is a hard ask to expect Judges to deny bail for all cases where a person might commit a murder no matter how hypothetical.

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  54. F E Smith (3,324 comments) says:

    The courts and administration of justice were once very conservative places through out the Commonwealth

    Still are.  NZ Courts are still heavily pro-Crown.  Trust me on this; ask any former prosecutor turned defence lawyer if you don’t.

    Re the Bill of Rights, are you seriously suggesting that the rights listed in that Act originate with Labour lawyer MPs in NZ in the 1980s?  Seriously?  Those rights are historic, the go back varying periods of time, but most of them a hell of a long time.  They were not magically thought up by Labour in the 1980s.  Every parliamentary democracy in the world has a commitment to the rights listed in the NZBORA.  In fact, have you even read the damn thing?

    Your reference to the Human Rights Act (UK) is misleading.  The UK is a signatory to the European Convention on Human Rights.  Indeed, it was the first nation to ratify the Convention, in 1951.  While there are the odd controversial decision under the HRA, and even then a lot less than you might think, most apply to deportation rules rather than anything else.  The criticism of the HRA really stems from Tony Blair attempting to be populist later in the day.  In fact, the HRA was supposed to simply bring the ECHR directly into English law, rather than having to go to the ECtHR for binding decisions.

    By the way, many of the rights that are listed in the NZBORA were developed by relatively conservative judges, defining the limits of the power of the State.  If you want a good example, go read Entick v Carrington from 1765.

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  55. F E Smith (3,324 comments) says:

    Human rights are not and should not be a left wing issue. Indeed, the left tend towards authoritarianism more than human rights.

    Support of human rights should be a proud position of all people who consider themselves to be right wing in any way. A commitment to such principles as freedom of speech, freedom of religion, freedom of association, and due process of law should not be seen to be a position worthy of criticism.

    I am saddened that kowtow thinks that otherwise.

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  56. laworder (288 comments) says:

    Nostalgia NZ wrote


    Please provide the ‘personal experience,’ at this point it just seems like another effort to waste more money otherwise you are stating that there is a situation abroad where Courts, police and lawyers are knowingly letting a dangerous group out on bail to re-offend. That seems to be borne out by the effort, assisted by SST in rewriting bail laws to make Judges accountable. Accountable to who? Garth, you?

    Fair enough – a few years back I had a scum stalking a lady who was boarding with me. He committed a number of offences including threats, break ins etc and was duly charged. He was bailed and his offending actually escalated, unsurprisingly really. He did eventually end up inside for a reasonable stint, but not until after he had also stalked a couple of other people and terrorised them, something I was unaware of until later,

    If you would like other more serious but non-personal examples of offending while on bail, there is Michael Curran who killed Natasha Brown, and I’m sure I can find others if you like on my next break from work

    The Police are not knowingly letting a dangerous group out on bail, in fact they are often frantically and quite justifiably opposed to so doing, but some of the judiciary and some lawyers are, perhaps in a mistaken and idealistic belief that if the offenders concerned are treated like reasonable human beings they will act like reasonable human beings.

    Judges do not need to be accountable to Garth or me, but to the public at large, who pay for them. Hope this answers your questions

    GPT1 wrote


    Victim and police oppose therefore no bail – that’s not objective in any sense. Why have a Judge at all? Why not just have a complainant and police who can decide what the outcome is?

    Bit of a strawman argument I think? The judge (and jury) decide guilt and sentence etc. The victim and Police opposing bail is not the same as having them decide guilt. It is simply allowing them to have a decisive say in managing risk to the victim and their family during the remand period (and yes, anything that can reasonably be done to lessen that period should be, but thats a discussion for another thread)

    Incidentally I also happen to know of a reverse scenario that I will detail as it is interesting in light of this discussion – someone I know of was accused of assault as a result of having thrown a plate out of a window and it inadvertantly striking someone. The Police did not oppose bail in this instance, and neither did the victim

    Regards
    Peter J
    see http://www.sensiblesentencing.org.nz

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  57. F E Smith (3,324 comments) says:

     Laworder,

    All very well, providing that the offender concerned is remanded in custody during the course of the appeal.

    Why should they be?  Would you agree that every person who appeals their conviction or sentence should be freed pending appeal?

    Otherwise this course of action will be of little use to the victim/ victims family

    You mean the complainant, don’t you? After all, is the person making a false complaint, which happens on a regular basis, also a victim?  Or are you simply presuming that the person charged is in fact guilty and thus ignoring the principle that they are in fact innocent until proven guilty?

    we are not opposed to bail generally

    You certainly appear to be.

    only for those violent/sexual offenders that for whom both the Police AND the victim/ victims family have opposed bail for that should automatically be precluded from bail,

    hmmm, because you have actually advocated that the Police have the power to veto a Judicial decision if they do not like it!  That is just incredible.  So what do you do when a malicious complaint is made and the ‘victim’ doesn’t want the accused to get bail?  How do you protect against abuses like that?

    Minimising trial delays would be a damn good idea, as Simon Lyall pointed out in a previous post. There may be other means of achieving this however without a doubling of the MOJ budget

    Most trial delays are caused by a mixture of the Police and the Courts. A lot less are caused by the accused, and very few by the defence lawyer.  If you want to speed up the trial process, address those first two parties.

    If we had the Scottish three verdict system of guilty/ not proven/ innocent then I would have absolutely no problem with compensating those held on remand that fell into the last category.

    Perhaps, but then the Scots justice system doesn’t really have a commitment to human rights in the trial process.  That said, I like the three verdict system.  Sadly, you only want it because it will allow more people to be prosecuted a second time.  I like it because it will hopefully mean less people go to prison wrongly.

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  58. F E Smith (3,324 comments) says:

    laworder,

    a few years back I had a scum stalking a lady who was boarding with me. He committed a number of offences including threats, break ins etc and was duly charged. He was bailed and his offending actually escalated, unsurprisingly really. He did eventually end up inside for a reasonable stint, but not until after he had also stalked a couple of other people and terrorised them, something I was unaware of until later,

    So you have a breach of bail conditions that could have had the grant of bail reviewed by the Court.  If a further complaint was made and the man arrested a second time, I would not expect him to get bail again. How much of the above was because of police inaction rather than the Court granting bail.  Moreover, are you really suggesting that a person charged with harassment should automatically be denied bail?

    The Police are not knowingly letting a dangerous group out on bail, in fact they are often frantically and quite justifiably opposed to so doing,

    That is untrue.  The police generally do not oppose bail for the large majority of cases. And many of the times where they oppose bail, they succeed in their opposition.  Where is the problem?  Why aren’t you complaining that the Police don’t appeal bail decisions enough?

     some of the judiciary and some lawyers are, perhaps in a mistaken and idealistic belief that if the offenders concerned are treated like reasonable human beings they will act like reasonable human beings.

    That is just stupid.  We know exactly what they are like- we deal with them every day.  You will struggle to find anyone more realistic about their clients than a defence lawyer.  But we have a commitment to the rule of law.  Unfortuately, people like you do not.

    The victim and Police opposing bail is not the same as having them decide guilt. It is simply allowing them to have a decisive say in managing risk to the victim and their family during the remand period

    Of course it is.  The person can spend from 6 to 9 to 12 months in custody for an offence that they might be innocent of.  You would be happy with that, I take it?  What happens if the ‘victim’ of a traffic accident opposes bail for a person charged with careless use causing injury?

    Or are you suggesting that such a right of the ‘victim’ should only be for serious cases, which have a higher acquittal rate than summary offences?  For example, you think that a man with no previous convictions who is accused of rape should not get bail if the victim doesn’t want him to?

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  59. GPT1 (2,116 comments) says:

    FES: Human rights are not and should not be a left wing issue. Indeed, the left tend towards authoritarianism more than human rights.

    Quite right. The social contract provides that a small amount of an individual’s freedom is ceded to the state for a civil society yet increasingly we seem to see those who would cite the social contract in support of small government happily throw away those most fundamental rights of fair trial and innocent until proven guilty. It is a sad and slippery slope.

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  60. GPT1 (2,116 comments) says:

    Bit of a strawman argument I think? The judge (and jury) decide guilt and sentence etc. The victim and Police opposing bail is not the same as having them decide guilt.
    Laworder – no not a strawman. Your position is that police and victim can imprison without trial. Excuse me, not victim, but complainant. Ie: you are promoting a person who makes an allegation can, along with the prosecuting authority, decide who is locked up and who is not.

    How does that not completely undermine the presumption of innocence?

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  61. F E Smith (3,324 comments) says:

    you are promoting [that] a person who makes an allegation can, along with the prosecuting authority, decide who is locked up and who is not.
    How does that not completely undermine the presumption of innocence?

    Hear, hear!

    EDIT: Another point to consider is that a lot of time people spend more time on bail than they do in prison if finally convicted. Laworder would obviously be happy for someone to spend 12 months in prison on remand and then be sentenced to a 6 month sentence…

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  62. Graeme Edgeler (3,280 comments) says:

    Sadly, you only want it because it will allow more people to be prosecuted a second time. I like it because it will hopefully mean less people go to prison wrongly.

    The “Not Proven” verdict is an acquittal and brings with it that same protections as a “Not Guilty” verdict.

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  63. laworder (288 comments) says:

    FE Smith, there are two issues you have raised which are fair points that require addressing

    One is the issue of malicious complaints, and perhaps those responsible need to be prosecuted more vigorously, especially if this scenario is as common as you have experienced. And when a conviction of making a false complaint is obtained, the punishment should be such that it deters others. I would be more than happy to accede to your knowledge and experience of malicious complaints however, and would be open to yours or other suggestions on what to do – perhaps a subject for another thread however….

    The other point you raise is the scenario of a “man with no previous convictions who is accused of rape”. I would tend to agree that if he is genuinely not a risk to anyone, that bail could safely be granted. However given that you have also stated that “The police generally do not oppose bail for the large majority of cases” I cannot see that they would do so in such an instance, or for that matter in respect of the accused in the traffic accident scenario you also raised. Perhaps there may be some instances where maybe they should be opposing bail and are failing to, as in the case from my personal experience involving the stalker, however that was some years back and hopefully their performance has improved

    Regards
    Peter J
    see http://www.sensiblesentencing.org.nz

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  64. F E Smith (3,324 comments) says:

    Graeme,

    Cheers. On that point, my understanding is that laworder wants the ‘not proven’ verdict to carry with it the availability of re-trial, and that was what I was referring to.

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  65. kowtow (8,160 comments) says:

    FES

    I’m not making shit up.
    I was at a public lecture last year in a prominent law school where the visiting professor from the UK was spouting all that about the left not trusting old school,establishment judges to givthem the verdicts they wanted……much knowing laughter from the assembled at the conservative judges expense…….

    Thus we get lawfare from the left.And it was the prof who said our Bill of rights had a big effect on the UK Act.

    No one ever said we shouldn’t have fair trial….GPT1 and FES are getting a bit carried away and in overstating their cases show themselves to be rathe silly……m’lud.

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  66. F E Smith (3,324 comments) says:

    laworder,

    the issue of malicious complaints, and perhaps those responsible need to be prosecuted more vigorously, 

    There is very little chance of that happening.

    I would tend to agree that if he is genuinely not a risk to anyone, that bail could safely be granted.

    But then you are arguing for the status quo.  What if the complainant opposes a grant of bail in such an instance?

     However given that you have also stated that “The police generally do not oppose bail for the large majority of cases” I cannot see that they would do so in such an instance,

    Usually the police will oppose bail in most rape cases. 

    or for that matter in respect of the accused in the traffic accident scenario you also raised.

    And if the ‘victim’ doesn’t want a grant of bail to be made?  

    Perhaps there may be some instances where maybe they should be opposing bail and are failing to

    Actually, it is usally the other way around.

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  67. peace (26 comments) says:

    laworder

    One big rip-off

    The Sensible Sentencing Trust was set to pay $50,000 to Donna Kingi if Murray Foreman was convicted of the murder of Hawke’s Bay farmer Jack Nicholas, but Mr Foreman’s lawyer, Bruce Squire, QC, said Ms Kingi was motivated only by money and discredited her evidence.
    Donna Kingi said I would drink anywhere between four and six bottles of wine a day. I would also drink a bottle of whisky a day.”
    She feared the implications if she spoke out. The “whole of New Zealand” would find out about her cannabis-smoking habit.
    “I just didn’t think people would believe me because I was a smoker.”
    Ms Kingi told Mr Squire she had been a cannabis user since the age of 13 and had also for some years used “speed” and “uppers”. Entering rehabilitation, she eventually rid herself of the pills but had only been smoke-free for the last two-and-a-half months.
    She also agreed she was known for speaking with the spirits, something she believed was a gift that she discovered at a young age.
    She believed she was seen as “the boy who cried wolf” over a series of complaints to police in New Zealand about assaults in a domestic relationship, most of them withdrawn under pressure. She was also wary after the way she had been treated by police in a cannabis bust at her home in Haumoana.
    At first she said she had not been in financial difficulty, but then conceded she had moved out of her accommodation in Australia to resolve a debt situation.
    “Does he (the defence lawyer) think I would’ve gone through this shattering experience just for the money?” In the end the reward was never paid but the police have contributed $50,000 towards the family’s accommodation and phone bill expenses while in Australia.

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  68. F E Smith (3,324 comments) says:

    kowtow,

    sure you are.  You are ignoring the actual development of human rights through the centuries and who was responsible for many of them.

    visiting professor from the UK was spouting all that about the left not trusting old school,establishment judges to givthem the verdicts they wanted

    The left wants a closely controlled judiciary that make decisions that favour them.  But you will need to explain your point more for me to see any issue in it.

    The left generally don’t get them from the more conservative judges.  That does not mean the HRA or the NZBORA are left wing legislation. Human rights are and should be very dear to those who consider themselves right wing.

    it was the prof who said our Bill of rights had a big effect on the UK Act.

    The Act itself, yes.  But the principles were nothing new, the UK having ratified the ECHR in 1951.  And at least some of the principles set out in the ECHR can be found in the US Bill of Rights.  So we are not dealing with anything new or particularly left wing.

    But, answer me this:  what parts of the NZ Bill of Rights do you disagree with?

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  69. Nostalgia-NZ (5,093 comments) says:

    Peter 1.33

    Thanks for the examples. They do however seem to be offered as badges of ‘rite of passage.’ If such ‘rites of passage’ over relative small samples are used in attempts to influence the law makers,by swaying public opinion or fear, I think it both undemocratic and calculated toward imposing a minority will on, in this case, the law. I know this is said to be to protect the victims, evoking sympathy in the process, but it could also be said to be reducing rights and pressuring for changes administered by a few rather than a majority. If it were for the greater good, without agendas, it might be able to be viewed differently across the board. I’m no expert but it seems the easiest form of politics is to criticise and frighten, but I don’t think that shapes a better society but rather one that is more on edge and repressed – waiting for the next fear to be set free from the cupboard. I’m not saying that you’re motivated in that way at all, but the perception is present in say the bail laws at the moment and the defence of ‘self defence’ earlier. The later rose from a single case where the law worked, but still it was changed. The bail situation as proposed might even be viewed as worse, a control over the courts with victims (or their advocates) thrust into a role.

    In a recent thread F E Smith revealed that few victims attend parole board hearings, that spoke loudly of the relative silence behind the voices of a vocal few. Additionally, it could be argued to show that there may be manipulation at work – again demonstrating a sparse landscape behind the banners and shouts of protest. I never thought I would feel inclined to defend the Courts and I most often don’t, but it seems if Judges and the Courts are able to be criticised in this way – with a view to having powers reduced and ‘accountability’ then one wonders what comes next. Qualifying for the right to vote, for equality? You’ll say no of course. Cheers.

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  70. kowtow (8,160 comments) says:

    FES

    So you agree the left want to control the judiciay,nuf said.

    I have always been happy with the British tradition of an unwritten constitution,with control over the power of the state ie those ancient righs you claim I don’t like.
    A conservative judiciary I like.
    Talking of rightsi n 1951,they hanged crims then and I’d bet a man on a murder charge would have never got bail. Those are the rights I like.

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  71. F E Smith (3,324 comments) says:

    kowtow,

    So you agree the left want to control the judiciay

    Historically, so have the conservatives.  Even today, both sides, when in power, want the Courts to favour them.  Neither side is innocent.  Some real miscarriages of justice have been at the instigation of conservative politicians and judges.

    Can you please tell me what the difference is between common law human rights and legislated human rights?  NZ still has an unwritten constitution, by the way, even with a legislated NZBORA.

    I don’t like a conservative judiciary.  I want an impartial judiciary committed to the rule of law. 

    Talking of rightsi n 1951,they hanged crims then and I’d bet a man on a murder charge would have never got bail

    Hanging wasn’t as common as you might think.  I read a while ago that something like 2/3 of all death sentences passed in England and Wales have been commuted.  That doesn’t mean that they still didn’t hang way too many people.  You would obviously support the idea of hanging as a penalty for theft, which was only abolished as a sentence about 150 years ago.

    But I would still like you to answer my question: what rights as set out in the NZBORA do you oppose?  Tell you what, I will list them for you so as to help out:

    Life and security of the person

    8 Right not to be deprived of life

    No one shall be deprived of life except on such grounds as are established by law and are consistent with the principles of fundamental justice.

    9 Right not to be subjected to torture or cruel treatment

    Everyone has the right not to be subjected to torture or to cruel, degrading, or disproportionately severe treatment or punishment.

    10 Right not to be subjected to medical or scientific experimentation

    Every person has the right not to be subjected to medical or scientific experimentation without that person’s consent.

    11 Right to refuse to undergo medical treatment

    Everyone has the right to refuse to undergo any medical treatment.

    12 Electoral rights

    Every New Zealand citizen who is of or over the age of 18 years—

    (a) has the right to vote in genuine periodic elections of members of the House of Representatives, which elections shall be by equal suffrage and by secret ballot; and

    (b) is qualified for membership of the House of Representatives.

    13 Freedom of thought, conscience, and religion

    Everyone has the right to freedom of thought, conscience, religion, and belief, including the right to adopt and to hold opinions without interference.

    14 Freedom of expression

    Everyone has the right to freedom of expression, including the freedom to seek, receive, and impart information and opinions of any kind in any form.

    15 Manifestation of religion and belief

    Every person has the right to manifest that person’s religion or belief in worship, observance, practice, or teaching, either individually or in community with others, and either in public or in private.

    16 Freedom of peaceful assembly

    Everyone has the right to freedom of peaceful assembly.

    17 Freedom of association

    Everyone has the right to freedom of association.

    18 Freedom of movement

    19 Freedom from discrimination

    (1) Everyone has the right to freedom from discrimination on the grounds of discrimination in the Human Rights Act 1993.

    20 Rights of minorities

    A person who belongs to an ethnic, religious, or linguistic minority in New Zealand shall not be denied the right, in community with other members of that minority, to enjoy the culture, to profess and practise the religion, or to use the language, of that minority.

    21 Unreasonable search and seizure

    Everyone has the right to be secure against unreasonable search or seizure, whether of the person, property, or correspondence or otherwise.

    22 Liberty of the person

    Everyone has the right not to be arbitrarily arrested or detained.

    23 Rights of persons arrested or detained

    (1) Everyone who is arrested or who is detained under any enactment—

    (a) shall be informed at the time of the arrest or detention of the reason for it; and

    (b) shall have the right to consult and instruct a lawyer without delay and to be informed of that right; and

    (c) shall have the right to have the validity of the arrest or detention determined without delay by way of habeas corpus and to be released if the arrest or detention is not lawful.

    (2) Everyone who is arrested for an offence has the right to be charged promptly or to be released.

    (3) Everyone who is arrested for an offence and is not released shall be brought as soon as possible before a court or competent tribunal.

    (4) Everyone who is—

    (a) arrested; or

    (b) detained under any enactment—

    for any offence or suspected offence shall have the right to refrain from making any statement and to be informed of that right.

    (5) Everyone deprived of liberty shall be treated with humanity and with respect for the inherent dignity of the person.

    24 Rights of persons charged

    Everyone who is charged with an offence—

    (a) shall be informed promptly and in detail of the nature and cause of the charge; and

    (b) shall be released on reasonable terms and conditions unless there is just cause for continued detention; and

    (c) shall have the right to consult and instruct a lawyer; and

    (d) shall have the right to adequate time and facilities to prepare a defence; and

    (e) shall have the right, except in the case of an offence under military law tried before a military tribunal, to the benefit of a trial by jury when the penalty for the offence is or includes imprisonment for more than 3 months; and

    (f) shall have the right to receive legal assistance without cost if the interests of justice so require and the person does not have sufficient means to provide for that assistance; and

    (g) shall have the right to have the free assistance of an interpreter if the person cannot understand or speak the language used in court.

    25 Minimum standards of criminal procedure

    Everyone who is charged with an offence has, in relation to the determination of the charge, the following minimum rights:

    (a) the right to a fair and public hearing by an independent and impartial court:

    (b) the right to be tried without undue delay:

    (c) the right to be presumed innocent until proved guilty according to law:

    (d) the right not to be compelled to be a witness or to confess guilt:

    (e) the right to be present at the trial and to present a defence:

    (f) the right to examine the witnesses for the prosecution and to obtain the attendance and examination of witnesses for the defence under the same conditions as the prosecution:

    (g) the right, if convicted of an offence in respect of which the penalty has been varied between the commission of the offence and sentencing, to the benefit of the lesser penalty:

    (h) the right, if convicted of the offence, to appeal according to law to a higher court against the conviction or against the sentence or against both:

    (i) the right, in the case of a child, to be dealt with in a manner that takes account of the child’s age.

    26 Retroactive penalties and double jeopardy

    (1) No one shall be liable to conviction of any offence on account of any act or omission which did not constitute an offence by such person under the law of New Zealand at the time it occurred.

    (2) No one who has been finally acquitted or convicted of, or pardoned for, an offence shall be tried or punished for it again.

    27 Right to justice

    Every person has the right to the observance of the principles of natural justice by any tribunal or other public authority which has the power to make a determination in respect of that person’s rights, obligations, or interests protected or recognised by law.

    Every person whose rights, obligations, or interests protected or recognised by law have been affected by a determination of any tribunal or other public authority has the right to apply, in accordance with law, for judicial review of that determination.

    Every person has the right to bring civil proceedings against, and to defend civil proceedings brought by, the Crown, and to have those proceedings heard, according to law, in the same way as civil proceedings between individuals.

    So, come on, tell me which of those rights you find offensive?

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  72. kowtow (8,160 comments) says:

    FES
    You’ve done it again
    You want to come across all lawyery and reasonable and then you go making silly assumptions and saying things I have not and wouldn’t say like……”You obviously support the idea of hanging people for theft”

    Rather pointless engaging here. You like what you like and I like a conservative judiciary.
    I rest my case.

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  73. F E Smith (3,324 comments) says:

    kowtow,

    Soft on bail is all part of the leftist human rights campaign. Common sense and the concerns for the rights of society went out the window a long time ago.

    and

    Leftist conspiracy? Most definitely.

    Who was responsible for the Bill of Rights? Labour lawyers.

    I have just set out the rights allegedly imposed upon us by your leftist conspiracy.  Which ones do you find offensive?

     
    EDIT: “You want to come across all lawyery and reasonable and then you go making silly assumptions and saying things I have not and wouldn’t say like……”You obviously support the idea of hanging people for theft”

    Well, abolishing a sentence that had been in operation for 600 years was somewhat radical. I assumed you would oppose such an act. Was I wrong?

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  74. peace (26 comments) says:

    England In 1808 Sir Samuel Romilly had the death penalty removed for pickpockets and lesser offenders, starting a process of reform that continued over the next 50 years.

    Since the death penalty was mandatory (although it was frequently commuted by the government), the judgement of death act 1823 gave judges the power to commute the death penalty for all capital crimes except treason murder. In 1861, several acts of Parliament (24 & 25 Vict; c. 94 to c. 100) further reduced the number of civilian capital crimes to five: murder, treason, espionage, arson in royal docks and piracy with violnece.

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  75. kowtow (8,160 comments) says:

    Leo puts it well.

    http://www.express.co.uk/ourcomments/view/275998/The-hated-Human-Rights-Act-must-be-repealed-now

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  76. laworder (288 comments) says:

    FE Smith, thank you for posting the contents of the NZBORA. Actually I do not have a problem with it or its provisions as such, except for the fact that it is universally applied to all equally regardless of their behaviour as I alluded to earlier. That is the core problem; serious repeat violent and sexual offenders have the same rights under law as the rest of us, e.g. the right to sue, privacy rights etc etc. This underlying assumption is the cause of many of the problems victms experience in our “justice” system.

    A person who shows no respect for the laws that govern a society, or for the basic human rights of other more or less law abiding citizens, especially the vulnerable, such as children and the elderly etc, they should fully expect to forfeit their own rights in proportion to the extent of the consequences of their actions. This is where is strongly disagree with one core assumption behind NZBORA and other similar legislation – due process should NOT always protect the rights of criminals, especially where the protection of those rights results in the rights of other law abiding citizens being compromised.

    The situation regarding human rights for convicted offenders is unique in one important respect, in that there is a tension between the needs of the victims of crime and the perpetrators. To a large degree this results in the matter of the rights of convicted offenders being a zero sum game, that is, any increase or gain on one side is invariably at the expense of the other party.

    This is not the case for any other group to which human rights have been extended in the last few hundred years. In every case, be it the rights of women, ethnic minorities, gays and lesbians, religious minorities etc etc, where these groups have made human rights gains, it has not resulted in any loss of rights for anyone else. Often there has been a net gain for society as a whole, as when minority groups gain rights, they become more productive contributors to the common good, and so rather than a minority group claiming a “slice of the pie”, the pie itself grows larger

    An example is in order here. If an offender who is an ongoing danger to one particular person is imprisoned, then the rights of that offender are of course compromised. Yet if he is released, the rights of his victim to personal safety and the enjoyment of life are then compromised. We are left with a situation where the rights of either one or the other must be compromised. That is very similar to the bail situation under discussion, although I do agree that there is also the assumption of innocence principle to take into account.

    Another example, which often arises in the real world is that of privacy. Granting convicted offenders full privacy rights, especially after release into society at the end of a sentence, will result in the victim and their family being unable to ascertain their whereabouts, and being unable to manage their risk to themselves. This results in their feeling very disempowered and unsafe. Yet to make information about offenders freely and publically available will compromise the privacy rights of the offenders.

    Yes, I would readily grant that there are some situations where rights for offenders are not a zero sum game, for instance rights to humane treatment while in prison, rights of access to educational courses and treatment programmes and so on. In such instances there is a net benefit to all for convicted offenders to have access to these things, especially if they result in the offenders being rehabilitated.

    I suspect it is the universal application of the provisions of the NZBORA across the board to all regardless of individual merit that kowtow finds objectionable, rather than NZBORA itself

    Regards
    Peter J
    see http://www.sensiblesentencing.org.nz

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  77. simo (150 comments) says:

    Tighten the bail laws like the proverbial noose! Any previous convictions – No Bail

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  78. peace (26 comments) says:

    Laworder
    You are a day light robber low life.

    You have the nerve to talk about people’s human rights when you and Garth Mcvicar covered up crimes for David Garrett to cheat the courts with perjury and then to further help gag the dead child’s mother, brother and sisters who you traumatised while you paraded to the media no name suppression and no forgiveness.
    You also traumatised family of the butchered 15 year old boy that Emery stabbed to death and then you blamed the mother for his death to the media before he was buried,
    Cameron was known by the police as a good kid with no criminal convictions.
    The fact you use post-traumatic stress disorder victims who are dying an early age because of the revenge and hate tactics you promote in their souls is the most disgusting of all.
    There are other crimes you have hidden that the parole board are well aware off and look down at you as lowest of low life’s using misfortunate people for example Mcvicar and yourself prey on the old and frail driving fear into their souls simply to extract money from them as you gathered donation money for the $50.000 reward money to try and convict an innocent man of murder..
    What happened to that money?

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  79. F E Smith (3,324 comments) says:

    laworder,

    can I summarise your 4.42pm comment as “repeat offenders don’t deserve a fair trial or a presumption of guilt”?

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  80. nasska (11,116 comments) says:

    The NZBORA (see F E Smith’s 3.29pm) does not seem to appeal to a few here. The very essence of the act is to define what may happen to a person suspected of, or charged with, committing a crime. Point is that it was set up to prevent the state from hiding away or unjustly persecuting someone it doesn’t like…..that is the entire reason that the legislation exists & I’m unsure that I’d want to live in a society that doesn’t recognise these principles.

    I see where those who oppose freely granting bail to accused are coming from. What I would like them to tell us is how a law can be written that protects each citizen from wrongful detention yet abolishes all risk of offending by an accused person.

    How would it be worded?

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  81. Pauleastbay (5,035 comments) says:

    How many murders were committed by people not on bail during this period?

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  82. GPT1 (2,116 comments) says:

    Law order who decides who does not deserve protection of NZBORA?

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  83. kowtow (8,160 comments) says:

    nasska 612

    Habeus Corpus,been around a lot longer than the modern concept of”human rights”.

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  84. nasska (11,116 comments) says:

    kowtow

    Agreed, Habeus Corpus has survived the test of time & is included in the BORA. There are a few other things that the Act includes which I consider beneficial to modern living. Things that are precluded like torture & things specified such as the right to a defence & an appeal definitely have their own attractions.

    In any case I still reckon that the challenge is to write a law that targets your concerns without throwing out the baby complete with the bath water. IMHO it can’t be done.

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  85. Nostalgia-NZ (5,093 comments) says:

    Off point to some degree but dealing with the separation of the Courts from the government (or the SST); we have a new Court of Appeal where I’d like to see more development of the use of habeus – corpus. Too many cases of potential miscarriages of justice get lost in the system. If the original concept was to avoid the King or the government ‘hiding’ people away I think that could apply to the principle that people are hidden away if unsafe convictions are laborious to unpick, justice denied that sort of thing. The exercise of the Royal Prerogative is ruling at the ‘king’ or government’s whim – the reason for, I understand, partly behind the writing of the Magna Carta.

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  86. F E Smith (3,324 comments) says:

    Kowtow,

    Habeas corpus is a part of the body of law we call human rights.

    Therefore if you have a problem with human rights then you have a problem with Habeas corpus.

    And I am still waiting to hear what your specific objections to the rights I set out earlier. Remembering, of course, that many of them have been around for quite a long time…

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  87. F E Smith (3,324 comments) says:

    Nostalgia,

    there is very little need for habeas corpus in NZ. Other legislation is almost always adhered to, making an application under habeas corpus generally pointless. The fact that Police are required to present a charged person to the Court as soon as practicable if they are being held in custody is the whole point of habeas corpus. In most situations the Police are pretty good at getting people to court asap. Get arressted at 6pm, however, and it might not be until 10am the next morning, but that wouldn’t justify a writ of habeas corpus.

    The best that I have personally experienced, by the way, was a client arrested about 7am and sentenced by 10.30am that same day.

    Preventing a miscarriage of justice is a something that the subject of and reason for the appellate process, so reliance on the common law remedies isn’t really necessary.

    What kowtow seems to be purposefully ignoring is that his/her so-called ‘conservative courts’ actually developed many of the human rights that he/she rails against. Therefore I am assuming that his/her rant at the top of this thread, completely off topic by the way, was simply his/her way of saying ‘i don’t like many of outcomes of the justice system but in my ignorance I don’t know why so here is something convenient’.

    EDIT: By the way, I completely agree with nasska’s last sentence in his 7.25 comment.

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  88. Johnboy (15,903 comments) says:

    “generally between 4 and 6 murders by people on bail each year”

    I’m sure those few unlucky, murdered, folk are telling the Lord right now how pleased they are that jolly good chaps like Lord Birkenhead are keeping a tight rein on the situation in return for a few miserable couple of odd hundred grand a year.! :)

    We are are so lucky to have lawyers/actors of his calibre sharing this earth with us. :)

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  89. Johnboy (15,903 comments) says:

    Not that he can read what I just said of course! :)

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  90. Johnboy (15,903 comments) says:

    Oh! Look! Another income stream has just popped up!

    http://www.stuff.co.nz/national/crime/7439237/Father-denies-murdering-two-year-old-girl

    Fine looking fellow of a man! :)

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  91. laworder (288 comments) says:

    In answer to nasska and GPT1, I am under no illusions that wording something that will constrain the application of some of the NZBORA provisions to violent/sexual offenders while protecting the rest of us from wrongful detention will be a simple task. I wouldnt propose that all NZBORA provisions be constrained even for the worst offenders, only those that may in turn compromise the rights of the victim to safety etc

    Regards
    Peter J
    Webmaster for http://www.sensiblesentencing.org.nz

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  92. F E Smith (3,324 comments) says:

    only those that may in turn compromise the rights of the complainant to safety etc

    There, fixed that for you.

    A determined person will generally find a way to breach whatever conditions you might set if granting bail.  Are you willing to accept a percentages argument, or would any law you write simply have anyone accused of a sexual assault or violence (and at what level of each?) locked up without judicial discretion?

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  93. F E Smith (3,324 comments) says:

    simo,

    interesting comment. Let’s say that you have a conviction for being in a pub whilst underage, from many years ago. You are wrongly accused of fighting in a public place, when in fact you were attacked by a drunk man and defended yourself. You plead not guilty and your case is to be heard in 9 months time. If convicted you will be fined. You are ok with being in prison for the entire time preceding trial?

    PaulEB,

    good question. From memory, over 90% and sometimes over 95%, going on the stats provided in the article.

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  94. Johnboy (15,903 comments) says:

    As long as the preps brief was getting paid union rates (with no extra for play acting/hand wringing/posing) as we saw in that dreadful Scott Guy murder trial/comedy/tragedy, who can argue? :)

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  95. Pauleastbay (5,035 comments) says:

    and the next question

    How many murderers (what percentage ) are clean skins i.e the homicide is their first offence?

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  96. laworder (288 comments) says:

    Pauleastbay wrote


    How many murderers (what percentage ) are clean skins i.e the homicide is their first offence?

    About 45% if I recall correctly

    Regards
    Peter J
    Webmaster for http://www.sensiblesentencing.org.nz

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  97. kowtow (8,160 comments) says:

    FES

    Wait all you like.
    You have expanded the discussion beyond reason as I said above.

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  98. kowtow (8,160 comments) says:

    Actually my post at the top of the thread was not o/t. It was plain and simple.

    Soft on bail,leftist human rights bullshit. There.

    Jeez that lawyer makes things up as he goes along. But then that’s part of the “profession”.

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  99. Johnboy (15,903 comments) says:

    Waving hands, posing and posturing all seem to be part of the acting/legal profession kowtow.

    FESter will be starring in Jackson’s next epic methinks! :)

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  100. kowtow (8,160 comments) says:

    Hollywood and Perry Mason have a lot to answer for,seriously.

    Monkey see and all that,but hey if it works…..juries seem to like it.

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  101. GPT1 (2,116 comments) says:

    FES, law order – I can see one room for restricting bail, eg reverse onus, where convictions for serious offending and imprisonment. The issue I have with SST suggestions is removal of any objective decision making and effectively presupposing guilt.
    If x bad guy with half a dozen discrete prison sentences including assault with intent to rape, injures with intent as highlights then I can accept an argument that he has abrogated some rights of cotizenship and if charged again with serious offending the onus is on him. Basically looking at s12 thresholds.

    Back to your rock johnboy. Adults talking.

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  102. F E Smith (3,324 comments) says:

    leftist human rights bullshit

    And that is what I objected to.  Human rights is not and should not be considered anything to do with the left wing. It is something that should be proudly acknowledged by the right wing as a valuable part of our culture and something that the right upholds and protects.  

    And being soft on bail is more about money than anything else.  Remanding people in custody costs a hell of a lot of money.

     

    GPT,

    The issue I have with SST suggestions is removal of any objective decision making and effectively presupposing guilt.

    And also the concept of allowing Police or the complainant to veto a judicial decision to grant bail.  One of the dumbest ideas I have heard from them.  If you are going to do that then take bail out of the Court’s hands and hold bail hearings in front of a Sergeant at the Police station.

    If x bad guy with half a dozen discrete prison sentences including assault with intent to rape, injures with intent as highlights then I can accept an argument that he has abrogated some rights of cotizenship and if charged again with serious offending the onus is on him.

    And what would the normal chances of such a person getting bail anyway?  In most circumstances, nil. The SST bail thing is just a beat-up that they haven’t really thought through.

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  103. F E Smith (3,324 comments) says:

    Hollywood and Perry Mason have a lot to answer for,seriously.

    Ok, I have come to the conclusion that you are talking through a hole in your nether regions.  Being a reactionary is one thing, making a career of it is another, kowtow.

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  104. Nostalgia-NZ (5,093 comments) says:

    F E Smith 8:10

    I think the Appellant system is often too slow, particularly where there are applications under the Royal Prerogative of Mercy being investigated by somebody appointed by the Government. I see that as an opportunity for the Crown to investigate itself on the one hand and on the other the reason for long delays. I appreciate what you say about habeas corpus not being needed because of the timeliness of an accused being brought before the Court. You may be able to explain to me the difference in that situation, and another where a convicted person has strong grounds to show a moj has occurred in his or her case which is not dealt with in a timely fashion. I don’t know how the Royal Prerogative of Mercy fits in other jurisdictions but here we seem to have a model that reverts to the ‘whim of the king (government)’ a situation that was sought to be escaped from with the Magna Carta. I don’t know of a single case where Judicial Review or Habeas Corpus has been sought in the situation where there are delays of the type I’ve mentioned and therefore is probably novel (I’m happy to be corrected on that), but I’m not so sure that it is beyond the Bill of Rights or common law interpretations. You would acknowledge that delays are not unhelpful to the Crown in such situations. I can’t see any difference between a person being delayed being brought to Court on a charge yet to be upheld and another who has issues arising from their conviction(s) needing to also be dealt with in a timely way by the Courts rather than by a representative of the Government.

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  105. F E Smith (3,324 comments) says:

     Nostalgia,

    I think the Appellant system is often too slow,

    Agreed, but you may find that if the Crown is the appellant then things move a lot faster.

    You may be able to explain to me the difference in that situation, and another where a convicted person has strong grounds to show a moj has occurred in his or her case which is not dealt with in a timely fashion.

    If you read on Habeas Corpus on the wonderful Wikithing, you see that the purpose is that it

    ensures that a prisoner can be released from unlawful dentention, in other words, detention lacking sufficient cause or evidence

    So long as there is a conviction on the books that resulted in a sentence of imprisonment, then the person is lawfully detained.  Even if the conviction came about through a miscarriage of justice.

    I don’t know how the Royal Prerogative of Mercy fits in other jurisdictions but here we seem to have a model that reverts to the ‘whim of the king (government)’ a situation that was sought to be escaped from with the Magna Carta.

    It is precisely at the whim of the sovereign.  That is the whole point.  It is the monarch exercising his/her judicial role and extending mercy.  It is of its nature based upon a whim (as this guy found out to his detriment)

    I don’t know of a single case where Judicial Review or Habeas Corpus has been sought in the situation where there are delays of the type I’ve mentioned and therefore is probably novel

    Judicial review is about reviewing the reasoning process behind a decision.  It does not consider whether a decision is right or wrong, simply whether only valid reasoning was used to make it.  It is difficult to see how it could be used in an appellate type setting in the criminal process.  I can tell you that it is used often in the UK to deal with immigration matters, but it is still about wrongful reasoning processes rather than the actual decision itself.

    I can’t see any difference between a person being delayed being brought to Court on a charge yet to be upheld and another who has issues arising from their conviction(s) needing to also be dealt with in a timely way by the Courts rather than by a representative of the Government.

    As I noted earlier, it is the conviction that is the key.  Prior to being convicted, a person has the protections of a speedy (ish) trial and so on, while after a conviction, there is no such requirement. The fact of the conviction is what justifies detention.

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  106. Nostalgia-NZ (5,093 comments) says:

    F E Smith:

    ‘ensures that a prisoner can be released from unlawful dentention, in other words, detention lacking sufficient cause or evidence’

    ‘So long as there is a conviction on the books that resulted in a sentence of imprisonment, then the person is lawfully detained. Even if the conviction came about through a miscarriage of justice.’

    That’s the argument I thought could be developed, along the lines that a conviction doesn’t have a complete form and would be eroded by new evidence, just say as a sworn information may not prove lawful detention if incomplete in some way. I think I understand the original purpose or practice. You can no doubt see I’m advocating for a quicker way for cases to get back before the Courts where the appeal process has already been exhausted but something new has cast doubt on the conviction. Respecting of course that the concerns would be enough for a member of the bar to act on them.

    On the Judicial Review I thought of at least 2 areas. Delays being the first, where at least the decision maker, or he or she who will make the recommendation might feel obliged to give a satisfactory timeline, and secondly on the reasoning process or what might have been apparently overlooked or fully considered.

    I see in your final para you repeat the ‘conviction’ being the key while I’m looking to qualify that with the word ‘sound.’

    Wentworth played a dicey game apparently. I read about Regicide John Venn (I think I have the name correct) who with another signed the King’s death warrant and may have lived to die naturally, although there was a claim that he took his own life. The King at his own trial was not afforded a defence, years earlier he had branded Venn a traitor before the uprising. Venn also was apparently allowed to walk freely from Westminster Castle after having been under siege there for sometime. 400 years later I’m simply advocating for fairness and good access to the Courts other than by way of the Government, the ‘whim’ situation can look as dicey as the situation Wentworth seems to have placed himself in.

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