Presumption of innocence has little to do with whether a person facing court charges should be granted bail because such a decision has to be based on the criteria listed in the law, according to Judge Giovanni Bonello.
“The refusal to grant bail does not reflect on whether the accused will later be found guilty or not, nor does it make it easier for the prosecution to prove the accused is guilty... A court, in refusing to grant bail when the conditions for granting it are absent, in no way breaches the fundamental rights of the accused,” Judge Bonello, who served on the European Court of Human Rights, said.
Bail, and the manner in which it is granted, came under the spotlight earlier this month when Justice Minister Carmelo Mifsud Bonnici suggested that granting bail to hardened criminals should be restricted.
He was speaking after it emerged that a man shot in the leg during a foiled armed robbery on a jeweller’s house in Attard on December 3 was on bail, pending criminal proceedings over an-other foiled hold-up, this time on the HSBC operations centre in Qormi. Even in that case, he ended up with a bullet lodged in his jaw after a shoot-out with the police.
Criminal lawyers disagreed with Dr Mifsud Bonnici’s comments arguing that restricting bail would do away with a basic principle in criminal law presumption of innocence.
This argument was also made in the case of David Gatt, the former police inspector who then became a lawyer, charged over his involvement in four major hold-ups. He has since been denied bail.
Judge Bonello pointed out that when it came to granting bail the law allowed the court a wide margin of discretion and also laid down conditions when bail should not be granted. “These include the gravity of the offence the accused is charged with, the previous behaviour of the accused, the possibility of tampering with the evidence or intimidating the witnesses, the possibility of the accused absconding and, overall, an assessment of the social danger the accused could, if guilty, represent,” he explained.
Lawyer Roberta Lepré, representing Victim Support Malta, agreed it was important to maintain a balance between the human rights and presumption of innocence of an accused person and the victim’s right to security.
The Times spoke to police officers and experienced prosecutors who pointed out that breaching bail conditions was not rare.
Police officers believe that in the case of people with a criminal record who are charged over serious crimes bail should not be granted easily.
One officer was worried about the message sent to society through granting bail in serious cases. “This could backfire against us investigators because informants would think twice before helping the police arrest a person who would soon be out and about,” he explained.
Another problem faced by the prosecution was what a senior police officer termed as lack of consistency among magistrates, some of whom gave more weight to society’s interests when deciding on a bail request.
“We don’t like to see people in jail... The most important is justice for all, including society as a whole,” another officer said.
A police inspector said the solution did not lie in not granting bail but in speeding up court proceedings that often dragged on for years.
Human rights lawyer Therese Comodini Cachia agreed adding: “The longer it takes for the justice system to try the accused, the less pertinent the grounds for refusing bail usually become.”
Bail law
The Criminal Code lays down that a court can grant bail if, after taking into consideration all the circumstances of the case, the nature and seriousness of the offence, the character, antecedents, associations and community ties of the accused, as well as any other matter which appears to be relevant, it is satisfied there is no danger the accused, if released on bail, will: not appear for a court sitting; will escape from Malta; will not observe bail conditions; will try to interfere with witnesses or obstruct the course of justice; will commit another crime.