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Tuesday, 19 September 2017

TO BAIL OR NOT TO BAIL;THAT IS THE QUESTION

The issue of pre trial refusal of bail for defendants has always been a contentious issue. It is certainly amongst the most difficult decisions made by magistrates. Taking away the liberty of an unconvicted person strikes at the heart of our justice system.  To that question in the few years prior to my retirement the situations where bail was mandatory in the pre trial stage were increased. With those thoughts in mind it was interesting to read this week of the numbers of defendants remanded in custody who were not later convicted at  crown or magistrates` courts. 

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2 comments:

  1. Anonymous19 September 2017 at 16:21

    I’ve always struggled with bail decisions. As you say it strikes at the heart of our justice decision.

    However, some of the solicitors who present before us are woefully bad. Although it is not our job to tell them their job, sometimes I think they need to understand how and why we make our decisions.

    I am not really interested in hearing a mini trial, although it might help the solicitor in developing their arguments for the trial itself. I’m interesting in finding out if there is a likelihood of more offences, any risk of intimidation of witnesses, or if they are a flight risk. Answer those questions, then I can make an informed decision.

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  2. Sub Rosa22 September 2017 at 20:53

    Agreed to some extent, but it’s not entirely clear what you mean by “a mini trial”. The main exceptions to bail for unconvicted defendants generally are subject to a real prospect that the defendant will be sentenced to custody in the proceedings. On top of which, the circumstances and seriousness of the alleged offence and the strength of the evidence may be very relevant to assessing the exception under consideration. It follows that the defence has every right to put such matters before the court. Plainly a defendant who expects to be acquitted (or, if convicted, faces a light, non-custodial sentence) is most unlikely to fail to attend for trial, or feel the need to intimidate witnesses. Moreover, if he didn’t commit this offence in the first place, there’s less reason to think he’d commit other offences if granted bail.

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