i. David Bain
Ultimately, David Bain was acquitted. To be able to lawfully punish him the Crown had an onus to prove, at a fair trial, that the jury could be sure he was guilty. This, the Crown never did. Bain had spent a little under 13 years in prison, as a result of his flawed conviction, and upon being acquitted, he sought compensation for the time he spent in prison.
Because he was acquitted at a re-trial, and not at the appeal that got him the retrial, his road to compensation for the time spent in prison was a little harder. The Cabinet guidelines that have been set required extraordinary circumstances, in addition to Bain establishing his innocence.
This led to a report from Ian Binnie, a retired Canadian Supreme Court Judge, and a dismissive response from the then Minister of Justice, but my view on compensation didn’t turn on any of the legal complexity. I know what the guidelines say (and they’re largely in-line with other countries), I just simply disagree with them. Bain spent thirteen years in prison, and the Crown never actually proved in Court, what it needed to prove in Court to get the convictions that would see him sentenced to prison. For me, that should be enough.
It isn't for the Government. It isn't for most similar governments.
I am mostly happy to proceed on the basis that a person is innocent until proved guilty. I am certain that the Government should proceed on that basis. A man whom the Government could not prove guilty – and whom the government should therefore recognise as innocent – spent nearly thirteen years in prison, when he should not have: compensation should follow. (Ultimately, the Government paid Bain a shade under $1m, not as compensation, and significantly less than he would have received in compensation, but enough to ensure his legal action went away)
ii. The rise in pre-trial remand
Remand prisoners (those who have been charged, but not convicted, and also those convicted, but not sentenced) make up a large, albeit apparently falling, proportion of New Zealand’s prison population. In the early-mid 2010s, there was a sharp increase in the remand population, more than doubling over only a few years.
This increase is usually, but misleadingly, attributed to National’s 2013 Bail Amendment Act. The law itself cannot be the direct cause – it made no material change to the onus or test for bail for the vast majority of people who appear before the Courts - but I do not think the timing is mere coincidence. There was a narrow change in the law, but Police, prosecutors and judges got the sense that Parliament (and perhaps the public too) wanted bail to be harder to get, and acted accordingly. The rest was history. It’s New Zealand’s version of Clinton Crime Bill – blamed for the vast increase in the size of the imprisoned population in the US, but clearly not to blame (it only increase penalties in the federal system, but the majority of the increase in incarceration rates that followed it was in state prisons).
For the most part, the increase in remand prisoners is not the cause of the increase in the prison population. Someone who is convicted and sentenced to four year imprisonment for burglary, and who serves two years before being paroled is just one prisoner, serving two years in prison, whether that imprisonment is one year as a sentenced prisoner and one year as a remand prisoner, or two years as a sentenced prisoner. It matter for them (remand prisons are worse), but the numbers are mostly the same.
Of course, this isn’t true for one small, but very important group of remand prisoners: those who are acquitted, and those who are convicted, but who do not receive prison sentences.
iii. Interim injunctions in civil proceedings
As a general rule in civil proceedings, if you sue someone for something, you go to trial, and if you win, you may be able to enforce a judgment. If the claim was for money, it’s enforceable against assets if necessary, if the claim was for some sort of court order, breach of it can be punishable by contempt of court, and potentially imprisonment.
But there are times when this isn’t enough. If someone is using one of your trademarks, then an 18-month wait until a full trial of your application for an order that they stop using your trademark may be too long to wait. Your business may have folded, or employees had to have been let go, and the person whom you claim has caused you loss may not be in a position to fix things if ordered to pay financial damages.
So sometimes, you can obtain an interim orders. In my trademark hypothetical, you could apply for court order stopping use of your trademark before you even get to trial. Because the other side won’t get a full opportunity to defend itself, the legal test for getting interim orders is more involved than you would need at the trial itself, but if you can make the case, you can get one.
But getting interim orders comes at a risk: you might not succeed at trial. And if that happens, you are liable for the damage caused by the interim order: at your request, and for your benefit, there was a court order stopping from doing what it turns out they were entitled to do. And they might have been put to great expense because of it. So one of the things you have to do when applying for interim orders is to provide an undertaking as to damages: a promise that, if you fail to obtain final orders, you’re good for the financial consequences. And this even applies when it is the Government seeking interim orders.
iv. Privatising the losses
The criminal justice system exists to pursue societal goals – society at large is supposed to benefit when people who seriously breach society’s standards are held to account – which is why the Crown prosecutes, and not individual victims.
But when the Crown fails to establish guilt, it isn’t society that bears the cost, even when the Crown has opposed bail.
The government has come to the Court: it has told a judge, we are confident that we have the evidence needed to convict this person of a serious offence, and are confident that upon conviction, we can show that a prison sentence at least as long as the time spent in remand will result. And we think it is really important, for the benefit of society, that this person be detained now, before we have actually proved beyond reasonable doubt that they are guilty.
Being prosecuted is a massive imposition. Being denied bail for any length of time is orders of magnitude worse. You will likely lose your job, if you have one. If you didn’t, you immediately lose any welfare benefit, which may mean you lose your home, which may break up your family. Even a short remand in prison can have devastating personal and financial consequences.
And if the Crown got it wrong, if it prosecuted you in circumstances where actually, it shouldn’t have been so sure it had the evidence necessary to convict, it doesn’t have to make it right. If it sued you, and got interim orders, it would, but because the claim was a prosecution, and the interim imposition was imprisonment, the Crown washes its hands.
I’ve long thought this distinction was unjustifiable. Interim orders detaining someone in prison pending a criminal trial aren’t so different from interim orders stopping a tort, or another civil breach, that society should bear the costs of the failed civil claim, but not the costs of the failed criminal one.
v. Compensation for pre-acquittal remand
I have been meaning to write this blog post for maybe a decade. And if you’ve read this far, you’ve probably guessed my proposal. Not only do I think compensation should be awarded to all those who have their convictions overturned – itself a relatively radical proposal – I also think that when the Government prosecutes you, and fails, then it ought to bear the financial cost of putting right any restrictions it imposed in the interim. Society claims the benefit of the criminal justice system, it shouldn’t privatise the unjust losses.
Why has it taken me so long to write this up? Well, it seemed so unlikely, and so likely to be so unpopular, that it always seemed a long way off. But I now wonder whether that is the case.
In a piece on Kiwiblog, opposing any loosening of bail laws, Jess McVicar of the Sensible Sentencing Trust argues:
Assertions of widescale injustice are also exaggerated. Time spent on remand is credited against any eventual term of imprisonment, meaning the impact on most defendants is neutral. The only real injustices are with those who are acquitted (around 9% of cases) or who or receive a sentence that would not have seen them imprisoned for that length of time. We would be better off providing compensation to this small minority than trashing our current bail laws.
Sensible Sentencing and I will disagree on a lot, especially in relation to things that happen before conviction, but the two sentences ending the quote above give me hope for common ground. It is time for the Crown to compensate all those whom it wrongly imprisons, including the acquitted who spend time in prison on remand.