Monday, February 19, 2018

Injudicious campaigning

Political grand charge describes the Attorney General’s promise that bail law changes will take bandits, robbers, and rapists off the streets. Myth describes his inference that the Judiciary granted bail out of personal fear for criminals. And obsession describes his focus on finding work for the private prison facility at Santa Rosa, first meant as a makeshift arrangement for the thousands of gang leaders the Government hoped to incarcerate.

The Judiciary’s ability to handle the cases of repeat offenders expeditiously is critical to the proposed bail law changes but there’s no evidence that it was consulted on this Bail (Amendment) Bill 2013. This is an oversight because the Judiciary says the criminal justice system is unworkable and on Friday struck down another piece of law that interferes with its judicial discretion. Within his perpetual political campaigning and incessant talk, the AG continues to push unworkable law while failing to make systemic changes and produce tangible results.

In the Senate two weeks ago the AG inferred that the Judiciary granted bail out of personal fear. This was not part of his contribution to the debate on the bail amendment last December in the House. It is not mentioned in recent reports of the Judiciary, including its detailed annual reports and the Honourable Chief Justice’s annual speeches to the opening of the law term. This comes close to Section 34 as the inference, adopted by other Senators, may have contributed to the Senate’s approval of the Bail (Amendment) Bill 2013. The Judiciary now describes the inference as without foundation, irresponsible, dangerous, and capable of undermining public confidence in the Judiciary.

The AG’s inference could not be more ill-timed. While consultation with the Judiciary was an important part of the famous Administration of Justice (Indictable Proceedings) 2011 that included the infamous Section 34, nowhere in the debate on the Bail (Amendment) Bill is consultation with the Judiciary mentioned. That’s surprising since the strength of the Bail (Amendment) Bill’s power to continue to deny bail to the criminal defendants the AG targets, lies in the Judiciary’s ability to take evidence within the first 120 days of the reading of the charge. Given the Judiciary’s growing caseload and the challenges set out in its recent annual reports, is it unrealistic to expect the Judiciary to consistently meet this timeline, so that many repeat offenders will end up before judges seeking bail and deepening the problems.

In opening the current law term the Chief Justice declared the criminal justice system to be in crisis: “not the Judiciary, not the DPP, not the Police — the whole system”. Three critical issues are the lower numbers for indictments and criminal trials completed, and the lower conviction rate. In 2012, less than half of all criminal trials ended with guilty pleas or guilty verdicts. In the majority of cases the accused went free.

In 2012, only eight murder trials were completed and even as murder numbers are high, criminal indictments for murders have fallen. Between 2006 and 2012, there were only 187 murder indictments, though 2,200 murders were committed. Criminal indictments, the backbone of the fight against crime, are actually down by 50 per cent, but even with lower numbers the Chief Justice says if ten judges were assigned to deal exclusively with murder trials for five years, those cases already before the High Court will not be disposed of.

This is especially worrisome when you consider the Judiciary, with low arrest rates, is still not facing the high volume of cases it should be. What if arrest rates reach 25 per cent for murders or any other major criminal offence?

The AG cannot be serious about this Bail Bill being a measure to take bandits, robbers, and rapists off the streets. By his estimates the Bill will deny bail to a thousand defendants, including 249 persons with robbery charges. Here is where the bigger problems lie for the AG. Police Service data for the five-year period 2009-2013 show there were 21,553 robberies reported and 1,832 arrests. The AG is focused on taking 249 robbery defendants off the streets, but for nearly 20,000 robberies, no one has been charged.

The situation is no different for bandits and rapists. Between 2009 and 2013, for 20,658 reports of burglaries and break-ins, only 2,182 arrests were made. For over 18,000 reports, the perpetrators are still on the streets. And, in the case of sexual offences including rapes and incest, in the same five-year period there were 3,861 reports, 1,864 arrests, and an average arrest rate of 48 per cent. Two thousand sex offenders are walking the streets.

This is the other alarming fact about the data involving bandits, robbers, and rapists. Even though the Police Service reports that it received 50 per cent fewer robbery reports in 2013 compared to 2009, and almost 3,000 fewer reports of burglaries and break-ins, the rate of arrests for these offences has improved only marginally.

And, while the AG is trying to keep rapists off the streets with this Bail (Amendment) Bill, this is the fact. While between 2009 and 2013 there was a 30 per cent reduction in reports of rape, incest, and sexual offences, the rate of arrests also fell from 63 per cent in 2009 when there were 670 reports, to 40 per cent in 2013 when there were 472 reports.

Quite simply, the vast majority of criminal offenders are still walking the streets and on its own the bail law will not put them in jail. It is not serious offenders who are before the courts, but traffic offenders. Traffic offences increased by 450 per cent between 2008 and 2012, and in 2012 reached 50,000. One legislative measure will not solve the crisis. The system of criminal justice is unworkable and the AG cannot fix it. The Judiciary has warned that the challenges in its criminal division highlighted the urgent need for the reform of the criminal justice process, including convoluted trials. In response the AG offers more political grand charge and bacchanal.

(Happy 80th birthday to my father-in-law Cecil McMillan)

* Clarence Rambharat is a lawyer and a university lecturer.