CSPC Briefing – Impact of Delays and unaffordable bail on ATD’s
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CSPC Briefing – Impact of Delays and unaffordable bail on
ATD’sWednesday 3 November 2010
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Presentation Contents
1. Introduction2. Further Investigations3. Withdrawals4. Case Finalisation Times5. Bail Protocol6. Bail – 2 Stage Approach
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Introduction• Delays in Court Proceedings are caused
by a multitude of factors such as:– Further Investigations and/or Quality of Investigations– Missing Dockets and/or Charge Sheets– Witnesses not arriving/available– Accused not arriving from Prison/Accused on bail not arriving– Accused not accessible/arriving for consultations with Legal Representative– Accused changing legal representation for various reasons such as:
• Conflict of Interest with co-accused• Conflicting Instructions to Legal Representative• Dismissal of Legal Representative• Inability to pay private practitioners fees
– Absence of court staff/officials/Presiding officers/Prosecutors/Legal Representatives
– Lack of running courts rolls where trials days are spread over a period of time
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Further Investigations
• Vast majority of trials take less than 5 days actual court time to finalise
• High proportion of all postponements /delays are to permit further investigations - police arrest before ready to proceed to trial
• Resources that could have been used to provide substantive legal aid are consumed in attending to postponements
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Withdrawal of Cases• 65% of matters defended by Legal Aid SA are
withdrawn before trial• There are a multitude of reasons for this high
withdrawal rate• Most are withdrawn at a late stage when trial
preparation has already been done resulting in the ineffective use of resources
• The CJS Review Protocols seeks to address this by ensuring proper docket reviews
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Case Finalisation Times• Legal Aid SA has set targets for
finalisation of cases and this is monitored. In Q2 of 2010/2011
– 19% of District Court cases were not finalised in target of 6 months
– 24% of Regional Court cases were not finalised in target of 9 months
– 42% of High Courts cases were not finalised in target of 12 months
• HC matters mostly link to appeals and the delays are as a result of problems with obtaining case records
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Bail Protocol
• Legal Aid SA practitioners are trained extensively in bail applications and are required to consider applying for bail in each criminal matter
• Detailed standard form bail affidavit in Practice Manual provides a checklist of factors to be considered in each case.
• Legal Aid SA practitioners also have a mandate to review and apply for a reduction in bail in appropriate matters ito S63(1) of CPA
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Bail Protocol Cont
DCS statistics • 9 000-10 000 detained persons at any
one time who have been granted bail but who have not paid bail amount
• Of these 8 000-9 000 were granted bail below R2 500
• over 4 000 detainees were granted bail of less than R1 000
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Bail – 2 Stage Approach• In recent precedent setting litigation undertaken by Legal Aid
SA it was clarified that judicial officers must follow a two-stage approach in considering bail (Jacobs vs The State Unreported CA&R 24/2009 EC:PE)
– firstly whether the accused should be released on bail – secondly the affordability of the amount
• As this filters through to magistrates it should help reduce the number of persons in detention who have not been released because they cannot afford the bail set
• Some magistrates remain reluctant to consider alternatives to monetary bail such as daily reporting
• Police remain reluctant to consider alternatives to arrest and detention such as summons for ensuring that accused persons come before court
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Thank you