Sunday 21st September, 2008

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That Bail (Amendment) Act

Media reports on the passage of the Bail Amendment Bill through Parliament have, in some cases, not been reflective of either the existing law or the differences in the proposed law.

While there may be valid grounds for criticising the provisions in the bill, it must be emphasised that they have constituted the law for the past three years. The law was extended periodically at three-month, six-month and (last year) one-year intervals.

The difference with the 2008 bill is that the Government proposed to make the law permanent. As with most other laws, there would be no “sunset” clause stipulating that the law would end by a particular date.

The Senate, and in particular the Independent bench, has been criticised for its support of the bill in at least one newspaper editorial.

Ironically, some three years ago, this same bill was touted by the media as part of the anti-crime legislation agreed to jointly by the Government and the Opposition.

Make no bones about it; in 2005, the Opposition supported the first bill, of which the provisions were almost the same as the current one.

The bill was dubbed the “No bail for kidnappers” and was widely-supported by the public.

Greater impact

The bill, although promoted in its first incarnation as dealing with “no bail for kidnappers” has greater impact on repeat offenders. The original law in the 1994 Bail Act had just two classes of offenders who by law were not entitled to bail.

Part I lists offences for which a person (accused of committing) would never obtain bail: murder, piracy, treason and hijacking.

Part II included a variety of serious offences, some violent, where a person charged who had at least three convictions over ten years for any of them would not be entitled to bail.

However, he could obtain bail if he could convince a court that he should get bail. In respect of people charged for offences, who fell outside of Parts I and II, a court had the usual discretion to grant bail— taking into account the seriousness of the offence and/or if the applicant had pending charges (though not convictions).

The amending law targets people accused of kidnapping for ransom and repeat offenders. Four classes of offenders are created.

The original Part I remains (no bail for murder, etc), but Part II is split into two: Parts II and III. The more violent and serious offences are in Part III and the less serious in Part II.

Some new offences were added in the first amendment in 2005, and since then each version of the law has clarified the list of offences.

Otherwise, the law re Part II offences, remains the same as in 1994—the entitlement to bail is lost to a person with three convictions in the last ten years for such offences as larceny of a motor vehicle, receiving, etc.

The accused, however, may get bail if he can convince the court he is deserving (the onus is on him).

The draconian nature of the law is revealed in respect of Part III offences. These include offences such as manslaughter, shooting or wounding with intent, rape, possession of a firearm, all forms of robbery, trafficking drugs, buggery and kidnapping.

A person who has even two convictions for any of these in the past 15 years will get no bail.

To appreciate this, compare it with Part II offences. In such cases, there must be three convictions in ten years for the accused to fall within the law, and then he is not even totally denied bail—the onus just shifts.

Now, a person who comes before the court charged with robbery shall not be granted bail if he has two convictions for Part III offences, even if they arose from one incident.

Similarly, a person charged with kidnapping for ransom, or knowingly negotiating a ransom may not be granted bail initially for a period of 60 days.

If the case is started within those 60 days (some evidence is taken), he is not entitled to bail, but if it is not he may apply to the court for bail, which the court has a discretion to refuse or grant.

The concern of some about the bill was the intention to make the above permanent law.

The Government had its three-fifths majority in the House of Representatives and passed the law. In the Senate, all that was needed were four votes outside of the Government.

From the course of the debate, it was clear that there was support from at least four Independent senators. There is no whip in the Independent bench, so these senators vote their conscience.

While the Government promised to review the law after a few years, there was nothing in place to ensure this. A sunset clause was the only hope, and at the end of day a compromise position was achieved.

The law will last for five years. At that time, the country will make a decision whether to renew it or not.

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