12 December 2008 Media Statement
Cosgrove: Bail law changes all about slogans and posturing, not substance and protection
Labour law and order spokesperson Clayton Cosgrove says the National Government is rushing through bail law changes that
amount to “nothing more than smoke and mirrors.”
Mr Cosgrove says: “National’s plan to repeal the 2007 Amendment to the Bail Act is not about making New Zealand
communities safer. The change is all about National trying to pretend to New Zealanders that it is tough on crime. New
Zealanders as a whole will not feel safer as a result of this Bill if it is passed,” he said.
“If National really was tough on crime, it would be moving decisively to implement Labour’s legislation to ensure
criminals serve two-thirds of their sentences before getting parole.
“Instead it is posturing on bail law changes, knowing full well that only a handful of alleged offenders, about 75 on
the muster according to what John Key said this week, may be denied bail under its changes. In fact, according to the
briefing Justice gave Labour, only 10 more remand beds will be needed next year. To put that in perspective, over 15,000
are remanded in custody each year.”
Mr Cosgrove said the Labour Government amended the Bail Act in 2007 simply to respond sensibly to a series of judicial
decisions. “The amendment clarified the previous law to ensure that where there is ‘real and significant’ risk to the
community bail should be denied.
“The amended law did not make it easier to get bail, as National claims. The reality is that the percentage of violent
offenders who offended while on bail declined steadily under Labour, as acknowledged by National in its Bill.
“National’s misleading claims are also certainly not supported by remand figures. The remand prisoner population grew by
about 30 percent from 2004 to 2008.”
Mr Cosgrove said National had already begun posturing on law and order issues. “As every week of its administration
passes, it will be forced to posture more and more. Law and order and safer communities cannot be achieved by slogans.
National will soon discover that, if it is not blinded by its own rhetoric.”
Background information
The Labour Government’s intention in the 2007 Bail Amendment Act was to clarify the law and to respond to a number of
judicial decisions, rather than make any significant changes.
The new law clarified the level of risk required before an alleged offender was remanded in custody, as being “real and
significant.” Labour believed that the references to “risk” were previously too vague and should be clarified.
The “real and significant” threshold was chosen by examining judicial decisions on the previous “risk” threshold,
especially in the Court of Appeal’s 2002 decision in R v Hines (CA384/02, 29 November 2002).
In R v Hines, the Court of Appeal implicitly agreed with the High Court that to amount to just cause for continued
detention, the risk that a defendant may interfere with a witness should be “more than nebulous and insignificant and
should be a real and significant risk”.
In line with Hines, Labour’s legislation consistently provided that the threshold in section 8 (1) be clarified by
providing that “a risk” of the defendant not answering bail, interfering with witnesses or other evidence, or offending
while on bail, means a “real and significant risk”.
The R v Kahui (High Court) case was one of the first decisions after Labour’s changes came into force. In that case,
Justice Heath stated that the change to a ‘real and significant risk’ does “not seem to me to put the test any higher
than it was under the previous legislation, but rather to emphasise the need for a proper inference to be drawn from
proven facts; as opposed to the Court engaging in speculation or guesswork about the possibility of risk.”
ENDS