Introduction to Bail and the Rule of Law

Have you ever wondered why Bail holds relevance to the rule of law? Have you ever wondered what bail is and how it continues to impact our modern Australian society? There is a lot of information out there and we have created three primary pages for you to check out that clarify the issue of bail.

Click on the below images to follow the links!

What is bail?

Bail and the importance of liberty are well known concepts in the contemporary public sphere. Bail determines whether an individual may return home while awaiting trial or remain in custody, with or without conditions. Yet in contemporary society, it is commonly misconstrued as a way to punish offenders who have not been formally found guilty or as a ‘get out of jail free’ card used by the wealthy and powerful.

For this reason, it might be surprising to learn that the concept of bail is a critical aspect of the rule of law and is an example of how our legal system reflects principles such as the presumption of innocence. When considering an application for bail, the bail authority weighs up their right to liberty against other considerations, such as the safety of the community, the interests of justice, and the need for the accused person to appear at court as part of the trial process. It can take months or even years before a matter comes to trial.

Why does it matter?

The topic of bail quite often appears in the media due to high profile crimes being committed by individuals who have been released into the community on bail. Some examples you may have heard of include the sexual assault and murder of Jill Meagher in Melbourne in 2012, the Lindt Café Siege in Sydney in December 2014, the Melbourne Car Attack on Bourke St in January 2017, a growing number of car and property thefts committed by young offenders on bail across NSW and QLD, particularly in regional areas, and various cases of homicide committed by offenders bailed on charges relating to domestic violence offences across Australia.

The antagonistic light the media portrays alleged criminals in can cause community distrust in the bail process. These resources will help to provide a greater understanding as to why alleged offenders may be released into the community before and during their trial period, rather than being held in remand.

We want the public to feel safe in their communitiesy as we and to understand that bail is a reflection of important human rights and rule of law principles, particularly the presumption of innocence and the right to liberty. The bail process must uphold these principles to ensure that we maintain a fair and just legal system.

Presumption of Innocence

In our society based upon the rule of law, a person can only be punished for a breach of the established laws of the land.  A person is only considered guilty for breaking a law when the justice system, based upon satisfactory legal evidence, rules that the accused is guilty.  Before this time, even if an accusation has been made, the accused is still considered innocent according to the law.  This principle is called the Presumption of Innocence.

The presumption of innocence ensures that people are not punished before being found guilty of the crime they are accused of, and is an important check on the power of the government.  It protects the rights of the accused and must be protected at all times.

The International Covenant on Civil and Political Rights (ICCPR) Article 14.2 states,

Everyone charged with a criminal offence shall have the right to be presumed innocent until proved guilty according to law.

However, the presumption of innocence is not absolute – there are good reasons why a person can be deprived of their liberty before being found guilty. Bail is one such example. The process of granting or refusing bail in the courts must be carefully considered to ensure there is an appropriate balance between the rights of the individual to be presumed innocent and the safety of the community.

The ALRC (Australian Law Reform Commission) discusses this balance regarding bail that is;

‘process-oriented’, aiming to ensure that the accused re-appears in court either to face charges or to be sentenced.

And, that

a person who is on bail before trial has not been convicted of an offence, [which] accords with the principle of the presumption of innocence.

Right to Liberty 

Article 9 of the ICCPR dictates that persons will

‘not be subject to arrest and detention except as provided for by law, and provided that neither the arrest nor the detention is arbitrary’

If an individual is arrested, they should be informed of the reason for their charges and must be tried before court within a reasonable period per Article 9 of the ICCPR. The bail process must consider the weight of depriving someone of their freedom as they await trial in addition to other mitigating and aggravating factors.

Community Safety

It is often a difficult juggling act to prioritise the safety of ordinary citizens in the community against the presumption of innocence and right to liberty that an accused or unconvicted offender is otherwise entitled to.

Interrelationship of Bail and Rule of Law

The rule of law plays an integral role in shaping bail laws because its principles are based on the presumption of innocence and the right to liberty. The legal system must be careful to uphold the true purposes of bail and the Government must ensure that bail laws remain appropriate for securing those objectives.

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