Editorial Comment: Long investigations make bail more likely

Source: Editorial Comment: Long investigations make bail more likely | Herald (Opinion)

There is a general perception that armed robbery is becoming more common, partly driven by the side economy that is run on cash transactions in US dollars because people do not want to use the banking system for various reasons or wish to avoid coming to the notice of the tax collectors.

The police are doing a fairly good job of rounding up likely suspects, quite often at considerable risk to themselves since some gangs want to fight it out although the police now seem to be better prepared for this, ensuring that they have adequate back-up when they do affect an arrest.

The trouble starts after the arrest. The accused are taken to court promptly, as required by law. Magistrates are not allowed to grant bail in such cases so the suspects apply at the High Court. Usually the State makes a good case for denying bail and usually manage to get the judge to agree, at least for a while.

But then little happens. After a decent interval the High Court has little option, but to grant bail since people cannot be held indefinitely in the remand cells while what seems to be a very slow process in completing the investigation, at times with little further evidence that the accused was arrested in the company of others who are also suspects.

Bail is always touchy and there is a perennial dispute between police, prosecutors and judicial officers over when it should be granted. Police, correctly, point out that there are a fair number of suspected robbers who have been granted bail and who then fail to turn up for their next remand hearing.

Unfortunately that is not a legal argument. A judge has to look at each individual case, not at patterns. Even if a majority of robbery suspects skip bail, that cannot influence a judge faced with a particular individual making an application.

Each application has to be decided on its own merits in terms of the law and precedent. 

Added this there are other factors, such as a Constitutional ban on detention without trial which precludes keeping a prisoner “on ice” in a remand prison indefinitely. Remand prison in many ways is the exception, not a convenience and is certainly not a punishment.

It is meant basically to hold someone against whom there is already a very strong case for a serious crime for a short time before a trial is held and guilt or innocence is decided. 

When a court is faced with opposition to bail on the grounds that a lot of further investigation is required there is bound to be a need to find out how much evidence is already available and just what still needs to be done to tie up the prosecution case. And when there is not very much evidence available, except a strong belief that the accused is the person who committed the crime, a court is likely to take a bail application seriously, allowing the person to be at liberty with some restrictions while the investigations continue.

Even in many cases where bail is granted there are long delays, although the rights of the accused are less likely to be infringed, which is why we are now starting to get applications to have an accused removed from remand unless a trial date is set. 

Building the evidence for a trial is not a simple process. A conviction requires proof beyond reasonable doubt, not just a very strong suspicion. While investigators are allowed to know about previous convictions, previous arrests and other crimes that the accused person may be involved in, the courts are not. 

The solution appears obvious, a faster investigation which, in many cases, should be tying up a few loose ends because the basic case is already in place when the arrest is made. 

In any case having a complete and well-documented initial investigation of the original crime should mean there is not that much to do when an arrest is made, largely finding out if there is a strong tie between the arrested person and the crime.

Sometimes the bureaucratic process of communication between the investigating officers and the Prosecutor-General’s office adds to delays. The initial file is sent, the legal officers want more done, so a revised file is sent, in time, and then there are other loose ends. And so it goes.

In some jurisdictions the process is speeded up by allowing far closer co-operation between the prosecutor and the investigating officer; that is the position in most American states where the district attorney can take a more active role.

In others, such as in most of Europe, a law officer can supervise a police investigation and tell the investigators, daily if necessary, what they still need to find out before a decision to prosecute can be made.

But whatever the reasons for delay, they need to be fixed. And there could be several reasons, so several fixes are needed. The police could quite easily be overwhelmed at the investigation level and lack resources. Not every police officer makes a good detective, but the higher education standards now demanded from recruits should make the pool of potential detectives larger. 

There could be a strong case, in light of the desire by so many to advance their qualifications by private study, to finding out if there are suitable experienced police officers interested in law degrees who can fill a partial void in skills. 

An experienced detective who has received advanced legal training could be a good fit on some teams.

Home affairs ministers, or their equivalent, are obviously in continuous debate with finance ministers over manpower levels and resource budgets. But a good case can be made if there is a rise in particular crimes that need more manpower than operational reassignments can provide, or for resources that cannot be found by juggling budget items.

It is the same with the Prosecutor-General’s Office, and here there are possibly good grounds to change procedures to allow, in a set number of cases, far closer contact between a designated legal officer assigned to take the case to court and the investigating officer so gaps are filled quicker, or a decision is made that the case is too weak for trial.

The judiciary are normally open to early trial dates for accused people in custody and usually give priority in these cases when it comes to setting trial dates. So if the case can be completed quickly an early date can be set for trial and that, in turn, minimises the risk of serious human rights violations if bail is not granted. 

The progress that is required is co-operation between police and prosecutors to speed up preparation of criminal cases and then holding the judiciary to their policy of early criminal trials for those held in custody.