In 1626, five knights, languishing in the squalor a London prison hulk, moved a writ to ‘show cause’ why they were imprisoned.
Their query was understandable. The hulk was rat-infested and they had been placed there without charge.
Charles I, a King of impeccable taste with a self-proclaimed stammer and a penchant for tyrannical rule, had detained them. The King had been trying without success to raise revenue for another of his disastrous foreign policy exploits on the Continent, and eventually resorted to a policy of ‘forced loans.’ But when his scarlet-robed councillors marched through the corridors of the knights’ residences calling for his Majesty’s dues, they were met with indignation. Forced loans, the knights correctly claimed, were illegal.
The King was bilious. He ordered the knights’ immediate incarceration, keeping their charge a secret. Before the King’s Bench, the knights argued that imprisonment without cause was illegal, and that they had a right to bail. Liberty, they argued, depended on it.
The Attorney General was not convinced, ruling that the clandestine nature of the knights’ detention was an issue of national security. ‘The King hath done it,’ he said, ‘and we trust him in Great Matters.’
Over the next few years an increasingly incensed Parliament formulated the Petition of Right, a foundational document of liberal democracy expressing the right to liberty, the presumption of innocence and the separation of powers. These lofty ideals were all anchored in one seemingly perfunctory right: the right to bail. Charles reluctantly signed it.
Leaping forward a few centuries we find NSW Premier Morris Iemma poised to further tighten bail laws when State Parliament resumes later this month. This is in the aftermath of Mohammed Haneef’s scandalous 25-day incarceration.
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Thanks to Lukas |
While the issue of Haneef’s detention without charge has been the subject of heated public criticism, the attack on his right to bail has received less attention. Indeed, in the same week that Iemma proposed new legislation restricting the number of bail applications a person accused of a serious offence can make in a local court, Phillip Ruddock threatened the judiciary with re-drafting the existing bail laws for terrorist offences so as, in effect, to curtail judicial discretion. Overseas, the UK Government has announced plans to extend the time a person can be held in detention without charge beyond the already extraordinary 28 days.
While we may be forgiven for failing to pay collective homage to the Knights, the principles they fought for should not be so quickly forgotten. We would do well to remember that the right to bail is just as crucial to civil liberty as the right to know the reason for your incarceration.
Bail can be a difficult issue to feel passionate about. In the gothic intrigues of criminal law, it rocks awkwardly back and forth on the sidelines. Perhaps this is why it’s such an easy target. In schoolyard terms, bail is the nerdy kid who sits alone at lunch pouring over Ginsberg’s ‘Howl.’ But this is precisely the point. Bail has a hidden ‘cool.’ Beneath its daggy proceduralism lies a gleaming armour of principle upon which the very core of our legal system rests.
Bail represents the liberty of the subject and the presumption of innocence. The Magna Carta gave birth to bail in the 13th Century and vested it with the responsibility of keeping a check on arbitrary exercises of power by the State. But bail by nature was always a diplomat, artfully balancing the demands of the State that the accused turn up to Court, with those demands of the individual that they be presumed innocent until proven guilty. When spurned, bail can wreak havoc on an individual’s life.
Criminologists have repeatedly found that denying an accused person bail increases their likelihood of conviction and results in substantial pre-trial punishment. They will be imprisoned in a maximum security remand cell with limited access to prisoner programmes, denied an income, risk losing their job and are cut off from community and support networks.
Further, as criminologist Chris Cunneen points out, there is no timeframe to assess their application. As a result, a disproportionately high number of remand prisoners commit suicide. Cunneen says, ‘They are placed in the worst conditions for the worst offences even though they haven’t been convicted.’
Iemma has stated that the NSW Government’s plans to restrict access to bail will increase safety and ‘help protect victims of violent crime.’
‘Currently there is no limit on the number of times a cashed-up accused can apply to the local court for bail,’ he said when introducing the planned changes in July this year. ‘This means that victims of crime are forced to re-live the events leading up to the arrest of the defendant.’
But such claims seem dubious. To begin with, an application for bail does not necessitate that the victim re-live the events of a crime. It simply means the Judge assesses whether the accused meets the criteria for bail, including housing and supervision arrangements. Cunneen says:
You can’t generalise the argument around safety. There are legitimate instances where the person should be denied bail which are based on that individual’s specific circumstances. But these [proposed changes]are general presumptions that aren’t determined by the specific instances of an individual.
And are people accused of crime generally ‘cashed up,’ as Iemma claims? Quite the opposite. ‘Bail is usually refused to people who are poor, homeless or who have intellectual disabilities. Bail conditions generally require that you reside somewhere and these people often can’t meet these conditions because they’re homeless. They’re criminalised because of their poverty,’ says Cunneen.
The NSW Bail Act has now all but crumbled under the weight of exclusion clauses. ‘Bail is not being used for the reason that it was originally intended,’ says Cunneen. ‘It’s now used as a form of preventative detention.’ What used to be a right to bail has now become a privilege.
There is a presumption against bail for any repeat offender accused of a minor crime (like a property offence), for anyone charged with a serious crime (like murder); for anyone involved in ‘riots’ or civil disturbances (such as protestors) and for anyone accused of a terrorist offence. Where initially there was a presumption in favour of bail, granted on the probability of whether you would appear in Court, now it is based on meeting strict criteria including high monetary sureties or whether you can show exceptional circumstances.
As a result, NSW has the highest remand population in Australia. The presumption against bail also violates sections of the International Covenant on Civil and Political Rights and encroaches upon judicial independence.
As the Government blunders forth in the War on Terror it swells to monstrous proportions. Like a lumbering giant, it crashes through the very laws it is meant to be protecting; laws which are also designed to protect us from abuses of Government power.
The Five Knights case reminds us that bail is part of a legal system that is designed to restrain power, of both the citizenry an
d the Government. Where executive power is kept in check by Charters of Rights in other Western countries, the Australian Government is dangerously unfettered in its power to override judicial decisions and crush individual liberties.
When Charles I exercised his divine right to rule in arbitrary and abusive fashion, the populus and their representatives drafted The Petition of Right. When he ignored this they chopped off his head. It seems our own Bill of Rights is well overdue; or failing this, a few swift and timely decapitations. 
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