Citation(2005) 17 SAcLJ 867
Date01 December 2005
AuthorLOW Siew Ling LLB (Hons) (National University of Singapore); Assistant Registrar, Supreme Court of Singapore.
Published date01 December 2005

Bail is a fundamental component of our criminal justice system, yet it has received scant judicial or academic attention in recent years. This article seeks to re-examine this area of law in the light of two recent cases on bail, which have demonstrated the inherent conflict between private rights and the public interest in every bail application. The article begins by stating the case for the publication of a set of official guidelines and benchmarks, before turning to examine the deficiencies in the existing system and offering concrete suggestions for reform. It concludes by reiterating the importance of finding a fair balance between protecting the rights of accused persons and upholding the interests of public safety, in order to build a more open and responsive bail regime.

I. Introduction

1 Bail is a fundamental component of our criminal justice system,

yet it has received scant judicial or academic attention in recent years. The dearth of legal argument is especially surprising, when one considers the serious public and private interests that are at stake. On the one hand, the presumption of innocence and the constitutional right to liberty1 suggest that an accused person should not be detained until he has been tried and convicted. On the other hand, pre-trial remand safeguards the public interest by securing an accused’s attendance in court and ensuring that

potentially dangerous individuals are kept safely behind bars during investigation and trial.

2 Bail law represents the meeting point between these two conflicting interests. While there is a tendency among legal practitioners to view bail as a matter of procedure, its practical effects on both the accused and society at large cannot be underestimated. When an accused person is denied bail, or cannot raise the bail amount fixed by the court, he is not only temporarily deprived of his liberty, but his ability to conduct his defence is also substantially curtailed. Statistical studies have further indicated that when all other relevant factors are held constant, an accused who has been detained in remand is more likely to receive a conviction or custodial sentence than one who has been released on bail.2 The recent case of Yeo Eng Siang v PP3 also demonstrated that the potential for injustice is especially acute if an accused is subsequently acquitted, for he would have served the practical equivalent of imprisonment for a crime he did not commit.

3 Conversely, the release of an accused on bail may carry potentially damaging ramifications, the most prominent of which is the risk that the accused may abscond. The recent escape of three accused persons charged in a much-publicised drug bust4 has thrown the problem into sharp relief. Not only do incidents of absconding undermine public confidence in the criminal justice system, they also raise issues of public safety, as these fugitives are left to circulate freely in society, whether in Singapore or abroad.

4 While it may be fortuitous that recent high-profile cases have thrown the spotlight on the question of bail, a re-examination of this area of law is long overdue. The last major treatise on the subject was published almost three decades ago,5 and comprehensive judgments and guidelines have been few and far between. What is of especial concern is the lack of guidance for the accused and defence counsel on issues of bail.

While government agencies such as the police, the Prosecution and the courts have access to confidential statistics and benchmarks to guide them in their work, the accused and defence counsel are severely handicapped because they must rely solely on existing jurisprudence, which is both sparse and outdated.6

5 This article will begin by setting out the case for the publication of a set of official guidelines on bail for use by all parties in court. It will then consider the existing law on bail and offer concrete suggestions for reform, which may be implemented either through the suggested guidelines or legislative amendment, if necessary.

II. The case for official guidelines

6 The starting point for considering the issue of bail is ch XXXV of the Criminal Procedure Code7 (“CPC”), which makes a distinction between bailable and non-bailable offences, as defined by s 2 of the CPC read with Sched A. The right to bail is absolute for a person accused of a bailable offence,8 but only discretionary when a person is accused of a non-bailable offence.9 Unfortunately, the statute does not specify relevant factors that the court should consider in determining whether a person accused of a non-bailable offence should be released on bail, save that he should not be released if there are reasonable grounds for believing that he has been guilty of an offence punishable with death or life imprisonment.10 There is also no indication of how the quantum of bail should be fixed, beyond a bare exhortation that it should be set “with due regard to the circumstances of the case as being sufficient to secure the attendance of the person arrested”.11

7 The paucity of legislative guidance has been ameliorated to a limited extent by case law, which has elaborated on the factors that the

courts should consider when granting or refusing bail12 and when fixing the amount of bail.13 The Subordinate Courts Working Papers Committee also released a brief Practice Manual on bail to the Law Society of Singapore in 1999.14 However, the material currently available is generally vague, and offers little by way of practical guidance to the accused and defence counsel.

8 The interests at stake in any bail application are too important to leave to wide expanses of little-regulated discretion.15 In the circumstances, it is submitted that the compilation and publication of official guidelines setting out general principles and benchmarks for all parties (ie, the police, the Prosecution, the Defence and the courts) would help to level the playing field and advance the cause of justice. A set of public guidelines would be beneficial to the criminal justice system for a number of reasons. First, it could help to address the information imbalance currently faced by defence counsel, who have no access to the accumulated resources and statistics of government agencies. If the accused were given some idea of the concerns that the court would be looking out for, he would be in a better position to address them to the court’s satisfaction.

9 By providing a common point of reference for all parties involved, these guidelines would also promote greater transparency and efficiency in the disposition of bail applications. Parties could make use of the guidelines to prepare their cases more effectively and streamline their arguments to the most relevant points of contention. The release of uniform guidelines and benchmarks would also ensure that the courts adopt a more consistent application of the law.

10 Finally, the guidelines could also be utilised as a tool to remedy existing deficiencies in the current bail system, which are discussed below. While some of the suggested reforms would require legislative intervention, others could be implemented through the guidelines themselves, which could then serve as a code of best practices for all parties.

III. Areas of suggested reform

11 While the lack of any major developments in local bail law may give rise to the impression that it is a static subject of study, the experience in other major common law countries demonstrates that the position is quite the opposite. In the US and the UK, the bail regime is recognised as an essential component of the criminal justice process that must necessarily evolve to meet the changing needs of modern society.

A. The two waves of reform

12 The development of bail law in the US and the UK is characterised by two distinct waves of reform. In the 1960s, the major policy debate centred on the gross inequities of the bail system, which failed to adequately protect the rights of the accused. Remand conditions were appalling, judges’ decisions were often arbitrary, and the system of bail bonds unfairly discriminated against the poor.16 These concerns eventually led American philanthropist, Louis Schweizer, to establish the Vera Foundation, which instituted the Manhattan Bail Project and proved that selected accused persons released on their own recognisance (“ROR”) had a lower non-appearance rate than those under the traditional bail system.17 These findings eventually led to the passage of the federal Bail Reform Act of 1966, which created a presumption in favour of ROR and introduced a set of model conditions to reasonably assure an accused’s appearance.

13 Research reports highlighting the high number of unnecessary remands also brought pressure for change in the UK, culminating in the enactment of the Bail Act of 1976 (c 63). For the first time, the legislation provided for a general right to bail, stating that accused persons had to be released on unconditional bail unless certain exceptions applied, and setting out the factors which the court should consider in making its decision.18

14 However, the tide began to turn against the accused in the 1980s, as rising concern over the release of dangerous criminals led to a public outcry against lax bail laws. In recent years, there has been a distinct shift in favour of protecting the public interest, even at the expense of the accused’s private rights. The process started with the introduction of the Bail Reform Act of 1984 18 USCA § 3141 to §3150 in the US, which allowed American courts to detain defendants solely upon a determination that no conditions that could be attached to bail would reasonably assure the safety of any other person or the community. This Act also created a rebuttable presumption that certain classes of accused persons, including most drug defendants, were presumed to be dangerous.19

15 This shift in policy was mirrored in the UK...

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