How would you handle someone who ends up with an aquittal but with certified bail breaches, and was remanded in custody after breaching non-onerous bail conditions? Bail breaches aren't an offence but also aren't exactly something the courts expect defendants to be doing. I think it would be fair in this case for the government to say hey it's not our fault you didn't play by the rules while waiting the outcome of your case. Or likewise if they were eventually aquitted but got remanded in custody after failing to appear in court.
Which could make for some complicated compensation decisions, because in practice decisions on bail are going to be based on multiple factors.
It's a question of fact in each case. Someone imprisoned when they shouldn't be, has suffered more harm that someone detained at home, who has suffered more harm than someone with a curfew.
I don't have a fundamental problem with the possibility of a contributory negligence-like analysis, but fundamentally the Government runs the risk. If it ask for someone to be locked up, and then can't justify that in the end, I don't see why the person you locked up should wear the cost.
9% is an enormous amount - it means that one person in ten on remand is innocent - sure we should compensate people put in this position, but we're obviously doing something wrong in the first place - are there publicly available guidelines that the prosecution use? or is all seat-of-the-pants stuff?
There's the bail act. It sets the test for bail.
I was thinking more about standards for prosecution, it does seem we're prosecuting more innocent people than we should be, do they kick out prosecutors who prosecute too many innocent people? does anyone keep track of this stuff.
we’re obviously doing something wrong in the first place
To an entity that measures value in money, the most certain way to get an injustice righted is to cost the perpetrator money. Since government does that…
The proposal would definitely reduce the injustice imposed by the legal system. At times it is quite random in who gets picked up and prosecuted erroneously, but more often there’s a systematic side. Specifically, being poor is a major factor. Which means that any compensation based on actual costs could well exacerbate that bias.
If the police have the option of arresting and holding a Professor of Laws or some unemployed wretch, I would expect their calculations of risk to be heavily biased towards letting the professor go while imprisoning the wretch.
And just wait for the right(eous) to point out that being fed and housed by the state benefits the wretch…