Mandatory bail: in pursuit of the proper balance

Jonathan Attard and Byron Camilleri are ministers for justice, and home affairs, respectively

There is no doubt that in a democratic society individual liberty is the rule and deprivation of liberty can only be the exception.

Persons accused of having committed criminal offences, irrespective of the gravity of the offence, also have a right to be presumed innocent.

These two hallmarks of individual freedom however do not exclude the detention of persons charged with having committed a criminal offence pending trial.

Pre-trial detention may serve many purposes related to the protection of society and the integrity of the judicial process but its main aim is to ensure that the accused will appear for trial.

That assurance may also be achieved in most cases through the imposition of bail conditions which provide sufficient security.

The role of the court in determining whether bail can be granted and in pitching the level of security demanded through the bail conditions may get very complex. It has been described as a process of assessing the level of security which would be sufficient “by reference to the accused, his assets and his relationship with the persons who are to provide the security, in other words the degree of confidence that is possible that the prospect of loss of the security or of action against the guarantors in case of his non-appearance at the trial will act as a sufficient deterrent to dispel any wish on his part to abscond” (ECHR Gafa vs Malta, 2018).

In a number of cases the court may decide that it is too big a risk to grant bail at all.

Prior to August 1989 the Criminal Code somewhat simplified the task of the court by providing that crimes against the safety of the Government and crimes liable to life imprisonment were unbailable.

That legal provision was challenged in the case “Dr. Lawrence Pullicino vs Commander of the Armed Forces” in which the Constitutional Court by judgment of the 12 April 1989 held that insofar as it deprived the court of discretion to grant bail the provision violated the right to personal liberty as protected under article 5 of the European Convention on Human Rights.

Parliament responded to that judgment by changing the law (article 575(1) of the Criminal Code) by means of Act XXIX of 1989.

The criteria which a court must take into account in setting bail conditions or in denying bail has also been the subject of a few cases against Malta in the European Court of Human Rights such as ‘Kolakovic vs Malta’ (2015) and ‘Gafa vs Malta’ (2018).

Our law has since 1989 adopted a system whereby bail becomes mandatory if by the lapse of certain time limits a bill of indictment has not been filed, the person charged has not been referred for judgment before the Court of Magistrates or a final judgment has not been given. Longer time limits apply in respect of the latter reason.

Logically, the law provides for time limits to stop running in a number of circumstances but those circumstances do not currently include cases where the accused has caused the postponement of a trial through self-harm and do not provide for the position of co-accused who may unduly benefit from the abuse of another accused.

As the law currently stands a co-accused can enable another co-accused to receive mandatary bail simply by causing the time limit to lapse through self-harm. This on a ‘no questions asked’ basis, insofar as actual release subject to conditions is concerned, and irrespective of the danger of absconding and of the peril to society.

By means of Bill 22 the Government is taking on this potential ‘get out of jail free with no questions asked’ card. The Bill proposes that more situations be added to those which suspend the time limit for mandatory bail namely when a trial cannot take place due to an accused’s self-harm or due to a reason attributable to one or more of the accused. In both situations the running of the time limit for the granting of mandatory bail including, to a more regulated extent, the time limit for the co-accused, will be suspended.

These amendments will not turn the clock back to 1989. The court will remain free to grant bail at any stage if it considers that there is sufficient justification and that adequate guarantees are in place to do so.

The amendments will shield the court from being prevented from considering whether an accused should be released on bail or not simply because time wasting tactics would have caused the current legal time limits to lapse.

The amendments do not play games either way with the right to individual liberty. They merely aim at preventing the abusive disruption of criminal trials in the interest of society in general and of the authority and integrity of the criminal justice system in particular.