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CSPC Briefing – Impact of Delays and unaffordable bail on

ATD’sWednesday 3 November 2010

Presentation Contents

1. Introduction2. Further Investigations3. Withdrawals4. Case Finalisation Times5. Bail Protocol6. Bail – 2 Stage Approach

Introduction• Delays in Court Proceedings are caused

by a multitude of factors such as:– Further Investigations and/or Quality of Investigations– Missing Dockets and/or Charge Sheets– Witnesses not arriving/available– Accused not arriving from Prison/Accused on bail not arriving– Accused not accessible/arriving for consultations with Legal Representative– Accused changing legal representation for various reasons such as:

• Conflict of Interest with co-accused• Conflicting Instructions to Legal Representative• Dismissal of Legal Representative• Inability to pay private practitioners fees

– Absence of court staff/officials/Presiding officers/Prosecutors/Legal Representatives

– Lack of running courts rolls where trials days are spread over a period of time

Further Investigations

• Vast majority of trials take less than 5 days actual court time to finalise

• High proportion of all postponements /delays are to permit further investigations - police arrest before ready to proceed to trial

• Resources that could have been used to provide substantive legal aid are consumed in attending to postponements

Withdrawal of Cases• 65% of matters defended by Legal Aid SA are

withdrawn before trial• There are a multitude of reasons for this high

withdrawal rate• Most are withdrawn at a late stage when trial

preparation has already been done resulting in the ineffective use of resources

• The CJS Review Protocols seeks to address this by ensuring proper docket reviews

Case Finalisation Times• Legal Aid SA has set targets for

finalisation of cases and this is monitored. In Q2 of 2010/2011

– 19% of District Court cases were not finalised in target of 6 months

– 24% of Regional Court cases were not finalised in target of 9 months

– 42% of High Courts cases were not finalised in target of 12 months

• HC matters mostly link to appeals and the delays are as a result of problems with obtaining case records

Bail Protocol

• Legal Aid SA practitioners are trained extensively in bail applications and are required to consider applying for bail in each criminal matter

• Detailed standard form bail affidavit in Practice Manual provides a checklist of factors to be considered in each case.

• Legal Aid SA practitioners also have a mandate to review and apply for a reduction in bail in appropriate matters ito S63(1) of CPA

Bail Protocol Cont

DCS statistics • 9 000-10 000 detained persons at any

one time who have been granted bail but who have not paid bail amount

• Of these 8 000-9 000 were granted bail below R2 500

• over 4 000 detainees were granted bail of less than R1 000

Bail – 2 Stage Approach• In recent precedent setting litigation undertaken by Legal Aid

SA it was clarified that judicial officers must follow a two-stage approach in considering bail (Jacobs vs The State Unreported CA&R 24/2009 EC:PE)

– firstly whether the accused should be released on bail – secondly the affordability of the amount

• As this filters through to magistrates it should help reduce the number of persons in detention who have not been released because they cannot afford the bail set

• Some magistrates remain reluctant to consider alternatives to monetary bail such as daily reporting

• Police remain reluctant to consider alternatives to arrest and detention such as summons for ensuring that accused persons come before court

Thank you