WILL YOU SPEND THE WEEKEND IN JAIL? An argument for immediate bail, unless exceptional circumstances dictate otherwise Irrespective of whether one is arrested at a road block owing to unpaid traffic fines, arrested late at night for driving under the influence of alcohol, or arrested on a warrant of arrest, the immediate concern is seldom one of proclaimed innocence, justice and a full ventilation of the facts, but rather the apprehension that one is required to spend an extended (or any) period in the custody of the South African Police Services. THE IMMEDIATE FOCUS FALLS UPON THE SECURING OF BAIL AND RELEASE UPON PAYMENT Usually, the accused will be able to contact a representative, explain the circumstances and seek assistance. However, one is not always able, in response to an unexpected arrest, to successfully contact ones chosen representative and several calls have to be made to secure immediate representation. There have, however, been situations recently arrested persons were only allowed to make one phone call, thus severely hampering the bail procedure. On occasion, initial requests have been made for bail, or for a release on a warning to appear these have been refused by the arresting officer, prior to the administrative issues having been dealt with and a proper application being made. In the ordinary course, there are three alternative forms of bail: In certain circumstances (except for the charges listed in Schedule II parts 2 and 3) Police Bail is notionally available to the accused. Therefore, once the arrest has been effected, and the administrative issues dealt with, the accused may be released on bail prior to being brought before a magistrate. Police Bail may be given by any Police Official above the rank of NonCommissioned Officer, in consultation with the Police Official charged with the investigation of the offence, and the amount of bail so deposited at the Police Station. A second option available to the accused is to seek bail from the prosecutor (who must be authorised in writing by the Public Prosecutor). Such Prosecutor may grant such bail after consultation with the Investigating Officer. This option is available in respect of Charges appearing under Schedule XII. The accused shall be subject to any bail conditions imposed and will be required to be present at court on the first court day after the bail was granted whereat the Magistrate may extend the bail granted, or hear a formal application for bail at that time. The most drastic circumstances arise when bail applications as set out above are denied by the Police and/or Prosecutor or when they are not authorised to grant bail. In such circumstances the accused is required to make a formal bail application in court. This requires that the accused remains in custody until such time as this bail application is heard. An accused has a constitutionally protected right to be brought before a magistrate within 48 hours of having been arrested. However, this 48 hours does not include weekends. The practical result of this is that if an one is arrested on a Thursday or Friday, and the other mechanisms of bail are refused (or unavailable), one may have to remain in custody until Tuesday or Wednesday the following week, before being brought before a Magistrate. Court Bail can no longer be applied for on an urgent basis, or after hours. In exceptional circumstances, and really only when the Police Officials and Prosecutors fail in their duties, may an urgent and after hours application be made to the High Court. Such application is not for bail, but to compel the Criminal Justice Officials to perform their duties. This is, however, unlikely and the worst case scenario Bail should only be refused where the accused is regarded as a flight risk, and a person who likely will not attend the trial. The Police, Prosecutor or Magistrate will consider this, together with various other factors in determining whether or not to grant bail. Some of these other factors, which the accused should be able to present to the Official considering a bail application include, but are not limited to, the existence of any previous convictions, threats of violence towards other persons or society in general, the likelihood that the accused will harbour any resentment to any person, possibility of interference with the investigation and witnesses and the disposition of the arrested person to commit the offences listed in Schedule I. Importantly however, should the accused be intoxicated at the time of arrest, he will not be released from custody until sober, this implying that at least one night will be spend in custody if one is arrested when under the influence of liquor or drugs. Complicating Factors – The Possible Politicisation of Arrest Concerns have been raised, both by the SAPS itself, and the public at large that arrests are being effected for political leverage, based upon irregular targets set for the SAPS members, or arrests are being effected in respect of “petty” crimes to “keep the numbers up” where an arrest may not necessarily be appropriate. The possible argument as seen in recent High Court decisions that an arrest in a particular situation is made in order for the SAPS to prove a point (particularly where an arrest is made without a warrant) only serves to exacerbate the implication that arrests are not being used as a last resort in the most drastic of cases. There are alternative ways to secure an accused’s appearance at trial, such as a warning to appear, or a summons In a case where an accused is not a flight risk, not arrested on a charge which poses a continued threat to the public; and if upon an initial investigation it appears that there may be a legitimate defence available to the accused, it will be in the interests of justice to release the arrested person, particularly when taking into account considerations of prejudice and the balancing of interests between the State and the Defence. Where an arrested person does not pose a risk to the State, they should be released on bail or on a warning based on the constitutional right to freedom, which right would be infringed unreasonably in the event that such an arrested person is not granted bail or released on warning. Views of the South African Police Service (“SAPS”) Notwithstanding an apparent popular call for accused persons to be apprehended and to remain in custody, the internal policies of the SAPS must also be considered. The following principles apply: 1. The SAPS are instructed, where possible, to avoid the detaining of an arrested 2. 3. 4. 5. person for the 48 hour time period where indications are that the arrested person is innocent, or that there is no reason to believe that this person will not attend the trial, and the release of the arrested person will not jeopardise the investigation. Arrest, whilst a recognised and formal mechanism to secure the attendance of an accused person at trial, it is the most invasive method, to secure a persons attendance at trial and constitutes one of the most drastic infringements of the rights of an individual and should therefore be regarded as an absolute last resort. A member of the SAPS should refrain from effecting an arrest if the attendance of that person at trial can be secured by first completing the investigation and then referring the docket to the Public Prosecutor to issue a summons. The “tendency” to effect arrests after 16h00 on a Wednesday afternoon (or on a Thursday or Friday, by implication) and then to fail to ensure that that person is brought before a court before the weekend (as is permitted in terms of the 48 hour rule) is regarded as being “unacceptable”. The SAPS are expected to clearly explain the timing of an arrest, by making an entry in the Investigation Diary, or at the very least to explain why the arrested person was not released before the weekend (where such bail is available). Provincial Commissioners, Area Commissioners and Station Commissioners may be held personally responsible in the event that these principles are not upheld. Recent case law has also held in favour of the prospect of granting bail, and the mechanisms to ensure the presence of the person arrested at the subsequent trial. Judge Bertlesman, in the recent case of A Louw and Another v the Minister of Safety and Security and Others, Transvaal Provincial Division, (Case Number 8835/03) pointed out that the SAPS are required to take a case by case approach in considering the whether arrest is the most appropriate means of securing the attendance of the accused at trial. It was stated that “if there is no reasonable apprehension that the suspect will abscond, or fail to appear in court if a warrant is first obtained for his/her arrest, or a notice or summons to appear in Court is obtained, then it is constitutionally untenable to exercise the power to arrest” Conclusion Legally speaking, in so far as the factors discussed above can be demonstrated to the SAPS, and the accused conducts himself in a co operative manner the chances of having to remain in custody awaiting trial should not be high where bail is available Unfortunately, the system requires persons at all levels to understand and appreciate the reasons for arrests, and that other mechanisms are available. To some extent, it appears to have become the easy option to effect an arrest and then to use this (or even the threat of this incarceration) to ensure the cooperation of the accused. This is incorrect, and steps should be taken to ensure the attendance of an accused at trial by means other than incarceration. If this cannot be achieved and the accused must be arrested, then the release of the accused should be secured as soon as possible, not least because taking into account the current climate in South African prisons, the detention of an accused, prior to a guilty verdict (except where circumstances themselves dictate otherwise) may in itself be challengeable.