JOINT SUBMISSION ON THE BAIL SYSTEM REVIEW BY THE EQUAL JUSTICE PROJECT AND THE HUMAN RIGHTS

FOUNDATION OF AOTEAROA NEW ZEALAND

The Equal Justice Project

The Equal Justice Project is a student run pro-bono legal services organisation operating

out of the University of Auckland Law School since 2005. The Human Rights team

within the Equal Justice Project is dedicated to developing human rights discourse by

contributing to government and non-governmental initiatives. Every New Zealander is

entitled to the fundamental rights enshrined in the International Covenant on Civil and

Political Rights affirmed by the New Zealand Bill of Rights Act. Hence, the team also

endeavours to promote awareness of issues affecting fundamental human rights and to

encourage student participation in debates surrounding these issues.

Human Rights Foundation

The Human Rights Foundation is a non-governmental organisation, established in

December 2001 to promote and defend human rights through research-based education

and advocacy. We have made submissions on new laws with human rights implications.

We also monitor compliance and implementation of New Zealand’s international

obligations in accordance with the requirements of the international conventions New

Zealand has signed, and have prepared parallel reports for relevant United Nations treaty

bodies to be considered alongside official reports. Though the primary focus of the

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Foundation is on human rights in New Zealand, we recognise the universality of human

rights and have an interest in human rights in the Pacific and beyond.

I INTRODUCTION

In March of 2011 the Ministry of Justice issued its preliminary review of the New

Zealand Bail System. The review proposes several changes in relation to bail. However,

this submission focuses on the introduction of a reverse burden of proof for class A drug

offenders and those charged with murder; along with the removal of the presumption in

favour of bail for young defendants. This submission will highlight the human rights

implications of the above proposed changes to the Bail Act 2000.

II CONTEXT

The right to liberty is among the most fundamental of human rights and is irrevocably

inscribed in the constitution of modern democracy. Because it protects the basic capacity

for freedom, there are a number of other rights that flow from the right to liberty: such as

freedom from arbitrary arrest or detention; the right to a presumption of innocence and

the right to bail. Any review of the bail system will inevitably have an impact upon the

right to liberty, and it is therefore necessary to examine thoroughly the potential

consequences of the preliminary proposals.

The preliminary proposals are here considered in the context of New Zealand’s domestic

and international human rights obligations. Numerous human rights treaties and domestic

statutes protect the right to liberty highlighting the exalted status and universal

acceptance of the right. Some of those include:

1. The New Zealand Bill of Rights Act 1990 (NZBORA):

a. s 18 Right to freedom of movement;

b. s 23 Rights of persons arrested or detained;

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c. s 24 (c) Everyone charged shall be released on reasonable terms and

conditions unless there is a just cause for the detention; and

d. s 25(c) The presumption of innocence.

2. The International Covenant on Civil and Political Rights (ICCPR):

a. Art 9 Right to liberty and security of the person; and

b. Art 14(2) The presumption of innocence.

3. United Nations Universal Declaration of Human Rights (the ‘UDHR’):

a. Art 3 Everyone has the right to life, liberty and the security of the person;

and

b. Art 9 No one shall be subjected to arbitrary arrest, detention or exile.

4. Charter of the United Nations (the ‘Charter’):

a. Art 6 Right to liberty and security of the person

5. European Convention of Human Rights (ECHR):

a. Art 5 Right to liberty and security; and

b. Art 6(2) Right to be presumed innocent.

6. Canadian Charter of Rights and Freedoms 1982:

a. s 11(d) The presumption of innocence; and

b. s 11(e) The right not to be denied reasonable bail without just cause.

7. Human Rights Act (UK) 1998 s3 and, by extension, Art 5(3) of the Convention

for the Protection of Human Rights and Fundamental Freedoms (the

‘Convention’).

Furthermore, this submission will draw on the jurisprudence that establishes a number of

other relevant rights — including the right to a presumption of innocence.

While this submission places the emphasis on the human rights of the defendant in the

pre-trial context, we recognise that the issue at hand is one of balancing the rights of the

defendant against those of the victim and a need to protect the broader community.

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III INTRODUCTION OF A REVERSE BURDEN OF PROOF FOR

DEFENDANTS CHARGED WITH CLASS A DRUG OFFENCES AND MURDER

Jurisprudence and Rights Affected by the Reverse Burden

The New Zealand Bail System Review proposes to reverse the burden of proof for

defendants charged with serious class A drug offences and murder. This section

addresses the rights affected by the reverse burden of proof.

The presumption of innocence is understood as one of the most fundamental elements of

the legal system, and has a long standing doctrine at common law (sometimes called “the

golden thread”), dating back to the seminal case of Woolmington v DPP.1 The

importance of the presumption is recognised in practice by imposing the burden of proof

upon the prosecution: the immutable right to liberty requires that all reasonable doubt of

guilt must be extinguished.

This proposal will make it significantly more difficult for defendants that fall into the

requisite category of offenders to achieve bail, and do so in relation to allegations when it

is often relatively easy for the prosecution to meet its own burden of demonstrating

grounds to withhold bail. Reversal of the burden of proof constitutes a breach to the

presumption of innocence; and introduces a severe limitation on the fundamental rights of

liberty guaranteed to individuals. Therefore, the reverse burden of proof can only be

justified if there is clear evidence that the benefits to the community outweigh the

disadvantage to defendants.

It is therefore instructive to examine the approach taken to reverse burdens in other

jurisdictions.

1 Woolmington v DPP [1935] AC 462 (HL).

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1 United Kingdom

How is the balance to be struck between the rights of the defendant and those of the

community? The House of Lords decision in Sheldrake v DPP confirmed that English

judges are prepared to recognise some exceptions to the presumption of innocence. 2 It

was held that infringing the presumption of innocence (Art 6(2) ECHR) is justified in

some cases and will not offend against the Art 6(1) right to a fair trial. In determining

reverse burden cases the following points should be taken into account:

1. Whether it is fair and reasonable in the achievement of a proper statutory

objective for the state to infringe the presumption of innocence; and

2. Whether the exception is proportionate — that is, whether it goes further than is

reasonable necessary to achieve that objective.

This is in line with decisions of the Human Rights Committee under the ICCPR; Article

9(3) prescribes that “the general rule” for people awaiting trial is that they should not be

detained in custody. Therefore, bail should ordinarily be available to detainees.

Exceptions can be made - when necessary to:

ensure the presence of the accused at the trial;

avert interference with witnesses and other evidence;

and prevent reoffending.3

The consultation document proposes shifting the balance between these conflicting rights

by imposing a reverse burden of proof, rather than “an outright ban on bail”.4 An outright

ban on bail was implemented in the United Kingdom by the Criminal Justice and Public

Order Act 1994 (CJPOA). It was subsequently removed due to widespread criticism from

2 Sheldrake v DPP [2004] UKHL 43.3 Already provided for determining “just cause” in s8 of the Bail Act 2000.4 Ministry of Justice “Bail in New Zealand: Reviewing Aspects of the Bail System” (March 2011) S 6.1 at [120.].

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the public, academics, and the Strasbourg Court in the cases of Caballero v United

Kingdom5 and SBC v United Kingdom.6

In response to the widespread criticism of CJPOA, a reverse burden of proof was

introduced for those charged with serious violent and sexual offences and who had a

previous charge or conviction for such an offence.7 This is a less severe restriction on the

right to liberty than that proposed in the New Zealand consultation document, although

because of the tension with the right to bail (Human Rights Act 1998 (UK) and ECHR)

this amendment has also been tested before the courts. In the leading British case of R

(O) v Crown Court at Harrow, the House of Lords found the reverse burden of proof to

be inconsistent with the aforementioned rights; and held that it was bound to read the

statute as only establishing an evidential burden. 8

It follows that — at least in the opinion of the House of Lords — the appropriate balance

in this area is to be struck in favour of the presumption of innocence.

2 Canada

In the case of R v Oakes the Supreme Court of Canada set down a test for assessing

whether a reverse burden of proof is “justifiable in a free and democratic society”. 9 The

court held that there must be a rational connection between the reverse burden of proof

and the aim of the State to reduce rates of recidivism.

3 Australia

In the Australian case of R v Momcilovic, the Victorian Court of Appeal held that the

burden of proof imposed on a defendant by s 5 of the Drugs, Poisons and Controlled

5 Caballero v United Kingdom (2000) 30 EHRR 643.6 SBC v United Kingdom (2001) 34 EHRR 619.7 Bail Act 2000, s10 has a similar provision. 8 R (O) v Crown Court at Harrow [2006] UKHL 42.9 R v Oakes [1986] 1 S.C.R. 103. See also s1 of the Canadian Charter of Rights and Freedoms 1982 and s5 of the New Zealand Bill of Rights Act 1990.

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Substances Act 1981 infringed the presumption of innocence recognised by s 25(1) of the

Charter of Human Rights and Responsibilities Act 2006. 10

The Court rejected arguments that s 5 could be “reinterpreted” to render it compatible

with the presumption of innocence; however the legal burden imposed on the defendant

was read down to an evidentiary one.

4 New Zealand

The New Zealand Supreme Court has addressed the issue of reverse burden of proof in

Hansen v R.11 The majority of the Court held that the reverse burden of proof in s6(6) of

the Misuse of Drugs Act 1975 was a breach of s25(c) of the NZBORA; nor was it a

justified limitation under s5 of the NZBORA. However, the Court found that s6(6) could

not be read down in light of s4 and that a breach of a fundamental human right could not

be avoided.

The Supreme Court found itself at odds with the approach taken by the House of Lords in

R v Lambert.12 In that instance a similar breach of the presumption of innocence was read

down as imposing only an evidentiary burden on the accused. However, the important

point for present purposes is that the Supreme Court determined that the reverse burden

of proof was not justified.

The cases highlighted above indicate that the United Kingdom and Australia have been

extremely cautious in discarding fundamental rights of the defendant; unlike the New

Zealand Supreme Court they have chosen to read down the reversal in accordance with

defendants’ rights.

Nor is it clear from the consultation document why the reverse burden of proof is

considered necessary; sections 10 and 12 of the Bail Act 2000 already cover instances

10 R v Momcilovic [2010] VSCA 50.11 Hansen v R [2007] 3 NZLR 1.12 R v Lambert [2001] UKHL 37.

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where a reverse burden of proof applies. We submit that imposing a reverse burden of

proof as proposed in the consultation document is not a justifiable limitation to the

presumption of innocence and rights of persons charged.

As noted above, the issue is one of balancing the rights of the defendant against

protecting the community at large and preserving the integrity of court proceedings.

However:

a) The reverse burden is not warranted on the statistics provided in the consultation

document (see below);

b) The proposed change will result in an unjust and disproportionate treatment of

defendants charged with class A drug offences and murder;

c) Pursuant to NZBORA, the right to bail is subject only to a determination of

whether or not there is “just cause” for the continued detention of the defendant.13

“Just cause” may be established where there is a real risk that the defendant may

fail to appear in Court, interfere with the investigation or reoffend if granted

bail;14

d) Accordingly, the reversal of the burden of proof constitutes an unjustified

limitation on the rights of defendants. Such rights include the right to the

presumption of innocence and the right not to be detained unless there is a “just

cause”.

Analysis of Statistics for Class A Drug Offenders and Defendants Charged with

Murder

The statistics presented in the Bail System Review consultation document do not justify a

need for a reverse burden of proof for Class A drug offenders and defendants charged

with murder. The following is an analysis of the statistics presented in the Bail System

Review for the two categories.

1 Defendants Charged with Class A Drug Offences13 S24(b) New Zealand Bill of Rights Act.14 S8(1) Bail Act 2000.

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There are no circumstances at the present in which a reverse burden of proof applies to a

defendant charged solely with serious drug offending.15

The statistics presented in the Review document16 show that: 34% of the defendants

charged for serious class A drug offences reoffend while on bail; out of those 38.3% of

the offences involve drugs; and 46.3% of the re-offenders are imprisoned.

However the important thing to note is that over 40% of defendants imprisoned for

offences committed on bail were imprisoned for a maximum of only 6 months.

Even though it may appear at the outset that the reoffending rate while on bail for class A

drug offenders is high (34%), an important aspect to be kept under consideration is that

almost half of the defendants imprisoned for offences committed on bail are only

imprisoned for a maximum of 6 months. As the sentence imposed is the best indicator of

the seriousness of offending the conclusion to be drawn based on the statistics made

available is that most offences committed while on bail are not particularly serious.

In addition, it is important to keep in mind the 66% of defendants on bail who do not

reoffend on bail. This high percentage of defendants not reoffending will also be

subjected to reverse burden of proof making it harder for them to be released on bail and

potentially increasing the likelihood of their rehabilitation.

Under the New Zealand Bill of Rights Act s24 grants the right to bail only subject to a

determination of whether or not there is a “just cause” for the continued detention; s8 of

the Bail Act 2000 outlines that “just cause” may be established when there is a real risk

that the defendant may fail to appear in Court, interfere with the investigations or

reoffend on bail.

15 Bail System Review Document at [80]. 16 Bail System Review Document at pages 27- 28.

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It is our submission that based on the statistics the current Act should not be reformed to

introduce a reverse burden of proof for class A drug offenders; the higher burden makes

it more difficult for the defendant to be granted bail. A high percentage of offenders

under this section who do not reoffend on bail are in danger of being detained contrary to

various fundamental rights and this step may be counter-productive.

The statistics do not indicate a level of public safety concern such that the reverse burden

of proof can be claimed to be a “justified limitation” in a free and democratic society in

terms of s5 of the New Zealand Bill of Rights Act. There needs to be a rational

connection between the limitation and the goal being pursued17 and in this instance there

is no such connection.

2 Defendants Charged with Murder

Most defendants charged with murder are remanded in custody. In the period between

2004- 2008: 334 individuals were charged with murder and only 18 were granted bail for

the entire period while 105 were partly on bail and partly in custody.18

Out of the 123 who spent time on bail only 14 (11.4%) were convicted of re-offending:

11 out of these 14 defendants were fined, ordered to do community work, or imprisoned

for a maximum of 6 months for offences committed on bail.

It is also important to keep in mind that defendants who have a history of serious

offending may already be subjected to a reverse burden of proof under s10 of the Bail Act

2000.

Statistics show that those who do reoffend on bail do so for considerably less serious

crimes. Also, the re-offending rate for defendants charged with murder is very low at

11.4%. No statistics are provided to support that defendants charged with murder re-

offend on bail with more serious crimes than defendants charged with any other offence. 17 R v Oakes, above n 7.18 Bail System Review Document at page 33.

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It is our submission that based on the statistics the reverse onus of proof is not a “justified

limitation” under the New Zealand Bill of Rights Act.

IV REMOVAL OF THE PRESUMPTION IN FAVOUR OF BAIL

Analysis of the Statistics Provided for Young Defendants under 20 years

The consultation document proposes to remove the presumption in favour of bail for this

category of defendants if they have previously served a prison sentence. Therefore, this

section will focus only on the statistics for re-offending rates of young defendants with

previous prison sentences.

Between 2004-2008, 1153 out of 1340 young offenders with a previous prison sentence

were granted bail: 48.6% were convicted of offending on bail and 30.7% were

imprisoned for offending on bail.19

However the important thing to note is that the court can only remand a young defendant

in custody if satisfied that no other course of action is acceptable or if a reverse burden of

proof applies.20

Hence, the assumption that the presumption of innocence applied to the young defendants

who were granted bail can be made.21 This in turn indicates that the reverse burden did

not apply; from which we can draw the conclusion that the defendants on bail were not

charged with serious violent or sexual offences to begin with.22

As to their reoffending the most serious offence committed on bail was a violent offence

(101/560) but the highest re-offending was in regards to property offences (256/560).23

19 Bail Review Document Table 6 at page 43. 20 See s10 and s12 Bail Act 2000.21 This is just an assumption. Will need more empirical data as to the number of young defendants who have been granted bail despite the reverse burden. 22 Otherwise the reverse burden would have applied under s10 Bail Act 2000.23 Bail Review Document Appendix 5.

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80 out of the 101 who committed violent crimes while on bail were imprisoned; 198 out

of the 256 were imprisoned for property offences. But for the 80 violent offences over

half (45) were imprisoned only for maximum period of 1 year; in regards to property

offences 95 out of 198 were imprisoned for a maximum of only 6 months.24

Even though it appears that the rate of re-offending on bail is relatively high for young

defendants with previous convictions — the majority re-offend with less serious property

or violent offences. The statistics provided do not justify a need to remove the

presumption of bail for concerns of public safety.

Effect of Prison Environment upon Young Defendants

There is insufficient statistical evidence to suggest that the removal of the presumption in

favour of bail for defendants aged 17-19 years is justified. However, the statistics relied

in the Review document underestimate the complexity of the decision to grant bail for

young defendants.

The overarching philosophy of the youth justice system must be to rehabilitate rather than

to punish young offenders, a position which is better served by avoiding custodial

detention of defendants between the ages of 17-19.

To not give weight to the age of the alleged offender is contrary to the United Nations

Standard Minimum Rules for the Administration of Juvenile Justice (The Beijing Rules),

which state: 25

Rule 2.2 (a) A juvenile is a child or young person who, under the respective

legal systems, may be dealt with for an offence in a manner which is different

from an adult

24 Ibid.25 United Nations Standard Minimum Rules for the Administration of Juvenile Justice (The Beijing Rules), Adopted by General Assembly resolution 40/33 of 29 November 1985

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Rule 13.1 Detention pending trial shall be used only as a measure of last

resort and for the shortest possible period of time.

Rule 13.2 Whenever possible, detention pending trial shall be replaced by

alternative measures, such as close supervision, intensive care or placement

with a family or in an educational setting or home.

A study carried out by the Australian Institute of Criminology found that there is no

evidence that keeping more young offenders on remand reduces the incidence of property

crime.26

Keeping young people on remand isolates them from family and community and

interrupts school and employment. It may therefore have a counterproductive effect by

increasing the rate of reoffending. 27

The adverse effects on individuals remanded in custody are well documented and

include:

the exposure to inmate sub-culture;

exposure to gang culture;

stigmatisation by the public which may reinforce a perceived criminal identity on

the part of the prisoner;

erosion of family ties; and

separation from the community. This places an undesirable strain on the

psychological development of young adult defendants and exposes them to

criminogenic influences, which is likely to increase the rate of recidivism.

26 Vignaendra, Weatherburn and McGrath ‘The Specific Deterrent Effect of Custodial Penalties on Juvenile Reoffending’, AIC Reports 2009. 27 ‘Embedding Diversion and Limiting the Use of Bail in New South Wales: A Consideration of the Issues Related to Achieving and Embedding Diversion into Juvenile Justice Practices’ (2010) 21 (3) Current Issues in Criminal Justice 467, at 469.

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Accordingly, it is submitted that the presumption in favour of bail for young defendants

must not be removed because it provides an important means of protecting a vulnerable

and impressionable group of young defendants from the adverse effects of incarceration.

Moreover, the proposed changes may result in the detention of a significant number of

defendants (over 50%) who may not have committed offences whilst on bail. It is

respectfully submitted, then, that these individuals will have their right to liberty and

right not to be detained without a “just cause” unfairly and unjustifiably curtailed.

V RECOMMENDATIONS

We submit that in its review of the Bail System in New Zealand, that the Ministry take

the following views into account:

1. That the burden of proof for defendants charged with murder, and for defendants

charged with serious class A drug offences, should remain with the prosecution.

A reverse burden of proof would breach various fundamental rights.

2. Furthermore, the presumption in favour of bail for youth offenders should not be

removed. It is essential that the youth justice system remain oriented towards

rehabilitation and reintegration, rather than punishment.

3. The New Zealand Supreme Court has made it very clear that reverse burdens are a

breach of fundamental human rights if they cannot be justified in a free and

democratic society. A close analysis of the statistics of offending in New Zealand

suggests that such a reverse burden is not warranted.

4. Lastly, there is the potential for this issue to be raised before the United Nations

Human Rights Committee on this issue based on breaches of rights contained in

the ICCPR.

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