Herald on Sunday editorial: Judge right on tougher line

Judge Russell said recently that bail was being granted much more readily than it used to be, and that judges could not take any more chances. Photo / Thinkstock

This Christmas, more alleged criminals will be in jail awaiting trial than in any previous year on records supplied by our prisons. The number has steadily increased since this Government came to power, to a estimated 1671 this week.

But you wouldn't know it, from the numbers set loose to offend again. A stable criticism of the judicial system is that judges are unresponsive to public concerns. Much of the sustenance for that sentiment this year has been supplied by the number of offenders released on bail who promptly re-offended.

One case, that of Christie Marceau, brought the concern to a crescendo. There were calls for Judge David McNaughton to stand down after details emerged of his decision to bail the teenager who went on to kill her.

One judge, at least, has not been deaf to the popular outcry.

During a hearing at the Auckland District Court this month, Judge Russell Callander said bail was being granted much more readily than it used to be, even for very serious offences, and that judges could not take any more chances. He was declining a bail application by Cavell McKee, who allegedly robbed a jeweller's shop in March last year by placing a shotgun to the owner's face and handcuffing his 73-year-old mother.

Judge Callander noted that McKee was first arrested in 2009 to face drug charges. "Some judge" had granted him bail.

He was arrested again two years later for allegedly assaulting a woman with whom he lived. He was given bail again, but was arrested two months later for another alleged assault against two men. Last year, High Court Judge John Priestley finally revoked McKee's bail and he has been in custody since.

Judge Callander has made clear his worry about the consequences of a more lenient approach to bail. "We are almost weekly now presented with ugly situations in court where violent offenders seek and obtain bail only to return home to inflict either death or further grievous injury on the original complainant," he said. "That strikes fear into the heart of any rational community and, indeed, into the heart of any rational judge assessing risk issues on bail."

Judge Callander is right to say bail has been granted too readily. With the benefit of hindsight, it is apparent that too many chances have been taken in terms of offenders absconding or reoffending.

But if Judge Callander's line in the sand is well warranted, the imprint should not run too deep.

It would be unfortunate if judges erred too far on the side of strictness because of a fear of the public backlash or a blemish on their record. Well-settled principles of bail have always slanted it in favour of citizens' right to liberty.

Bail, not jail, is the rule generally followed except in heinous crimes or murder cases.

Judges should decide each bail application on its merits. In each case, they should act on the information provided by the police, psychologists, the prosecution and the defence, and base their decision on the balance of probabilities.

From time to time, mistakes will be made. That, unfortunately, is inevitable in a judicial system in which 145 judges handle about 160,000 cases each year.

Realistically, judges can only seek to strike a balance that recognises both well-established principles and any discernible danger to members of the community.

This cannot be a matter involving no risk whatsoever. Too rigid an approach would be ill-founded. That would be possible only if bail were abolished and more prisons built to accommodate those held in custody.

But Judge Callander is right to point out the perils of too lenient an approach to bail.