Friday Filing: Throwing Away The Key

There have been several sources to my musings this week on the subject of detaining those who have been accused of crimes but not yet convicted of those same crimes: firstly, there has been a documentary on the experience of American county ‘jails’, wherein those who have been arrested are detained until their case is resolved if they or their families are not able to post bail, and secondly, the comments of some Victorian politicians in particular who seem determined to create an atmosphere of fear to surround the huge numbers of violent criminals who are being released on bail pending the resolution of their charges.

Notwithstanding the usual ‘law and order’ auction that goes on in the midst of state level political campaigning in Australia, I have been concerned by the rhetoric coming from Victoria which would see the implementation of a presumption against bail in that state should there be a change of government at the next election. It is the same kind of rhetoric we have seen in other states, including New South Wales, at times, and I have to confess to being particularly alarmed at its advent and spread within Australian public discourse.

I say this for two fundamental reasons. Firstly, and perhaps less obviously, is that a presumed denial of bail once someone is arrested and charged with a criminal offence could be construed to indicated a presumption of guilt for said person, rather than the presumption of innocence that each and every citizen is entitled to until the contrary is proven beyond a reasonable doubt. This presumption is already endangered by the way in which the media reports on the arrest of specific individuals, usually those who have a public profile, and at times put on the public record the untested basis of the prosecution’s case. This represents a very serious undermining of the separation of powers that is at the heart of the structure of our society which presumes that the executive, of which the police is an agency, does not determine the guilt or otherwise of any citizen, a task which belongs to the judicial arm of society. There is already too much blurring of the distinction between the executive and the judicial for even more to be allowed without comment or protest.

The second reason is because a person’s liberty is something precious to them and should not be removed from them by some arbitrary means, including a political decision designed to prey on the fears of other members of society whether those fears are genuine or have been whipped up by political discourse. The only means by which a person’s liberty should be removed from them is following a due process overseen by the judicial system, and should be a last resort in the time before the resolution of whatever has led to the individual being brought into the criminal justice system. In other words, rather than there being a presumption against bail, there should always be a presumption in favour of bail being granted, with a contrary assessment having to be justified before a magistrate. The level of justification, the burden to be assumed by the state agency responsible, might not be the criminal threshold (i.e. beyond reasonable doubt) and could well be the lower civil threshold (i.e. on the balance of probabilities), but there should be a need to justify a decision to deny bail. Such a decision should not rest in the hands of those who are responsible for the arresting of the individual either, since this would seriously wound the doctrine of separation of powers mentioned above.

At the heart of the rhetoric towards a presumption against bail is the cultivation of a climate of fear that seems to be the modus operandi of those involved in public discourse, both here in Australia and elsewhere in the world. The stirring up of fear, usually directed against a particular type of event or a particular group of people, plays to a very primal part of human psychology. There is a very primal urge in human beings to be safe from real or perceived threats, and the grasp at anything that might provide that safety which is so longed for. The cultivation of a climate of fear by politicians or other public figures is usually accompanied by a claim that the same politician or public figure has a solution that will alleviate the fear and provide safety to those who embrace that solution. What goes unsaid, however, is that some of the proposed solutions will only contribute to a lessening of fear through the abrogation of fundamental human freedoms, such as the arbitrary detention without due process that stands behind a presumption against bail.

Resisting the urge to seek safety from fears that are essentially randomly generated by those with what might be considered to have ulterior motives requires people to transcend the primal urge to seek safety and apply a more critical analysis to what is being claimed by those who are making the claims that give rise to the sense of fear. Such a task is not easy admittedly since fear is such a primal and powerful emotional driver, yet it is possible to do if people are prepared to take a deep breathe and move their analysis from the emotional to the rational in order to uncover the reality of what is being called for by those who seek to prey on our fears.

Combatting serious crime in society is a task that features high on the responsibilities of any government, and rightly so since individual members of society cannot do that themselves. There are significant costs involved in making this task a reality – the costs associated with crime prevention and detection, the costs of courts, the costs of detaining offenders. Another cost that can go unforseen, however, is not measured in dollars but in the ability of citizens to enjoy their fundamental freedoms free from the arbitary exercise of governmental power by their government.

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Article by Andrew Doohan

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