My opinion on bail system in Britain and America
Author: Ma Release Date: March 30, 2006 15: 49: 06
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Introduction: Bail refers to the system of releasing an arrested person on the condition that the arrested person provides a guarantee or accepts certain conditions. In the Anglo-American legal system, the bail system has been developed, the legislation tends to be perfect, and the judicial practice experience is also rich. China's bail pending trial system is similar to it in some aspects, but its essence is different, the actual application ratio is not high and its function is limited. However, some prominent problems in the judicial field, such as high detention rate, long-term detention and extended detention, have greatly hindered the democratization of criminal proceedings in China and seriously violated citizens' personal freedom. How can we not only ensure that criminal suspects and defendants are tried by the court, but also guarantee their due freedom rights? In order to find a solution, the judiciary turned its attention to the bail system abroad. The author thinks that what is most worth learning from the bail pending trial system is the concept of rights and its meticulous operating procedures, so this paper mainly introduces these aspects in order to learn from them.
First, the basic introduction of the bail system
(A) the meaning of bail
According to Longman Law Dictionary, bail refers to "the system of releasing the arrested person on the condition that the arrested person provides guarantee or accepts certain conditions". The bail system originated in Britain and was formed in the 3rd century. Pollock and Maitland believe that the bail system stems directly from actual needs, not from the love of abstract freedom. [1] After 500 years of slow development, 1826, the Criminal Justice Act promulgated by the United Kingdom fundamentally transformed the old bail system and made it a brand-new system. The concept of bail right began to appear and became a basic right of citizens. Article 1 of British Bail Act 1976 stipulates: (1) Bail may be granted during the proceedings in which a person is accused or declared guilty or related proceedings. (2) A criminal who has been arrested for a crime or is being issued with an arrest warrant may be granted bail [2]. The law tends to allow anyone who lives under surveillance to be released on bail. It is normal to grant bail, but there are very strict rules on not allowing bail.
(2) The general procedure of bail.
Britain and the United States require that arrested suspects should be released on bail or detained by judges or police as soon as possible. Generally speaking, the procedure of bail pending trial is divided into four stages: application, trial, ruling and relief.
1, application.
This stage is generally at the end of each litigation stage, and the most common is that the criminal suspect is forced to arrive at the case after arriving at the case. However, because it is a right for Britain and the United States to grant bail to criminal suspects and defendants within a certain range, in most cases, defendants do not need to apply for bail themselves, but are approved by officials who have the right to decide bail ex officio. According to Article 27 of the British Criminal Justice and Public Order Act (1994), the police can attach any conditions they think fit to the defendant's bail, except that he is required to stay in a bail hotel.
2. Hearing and defense.
Hearing is not a necessary stage of bail procedure, because when the criminal suspect and defendant meet the conditions of bail, the judge can decide bail directly without hearing. The American Federal Bail Reform Act 1984 stipulates that the judge can only decide to detain the defendant after hearing. For violent crimes, major drug crimes and cases that may be sentenced to death or life imprisonment, prosecutors should apply and judicial personnel should hold hearings [3]. In other cases, judges can usually decide to hear cases ex officio. Bail procedure also highlights the principle of adversary system. When the prosecutor and the defense lawyer can't reach an agreement on whether to bail, the court will enter the complete defense mode. In the process of deciding whether to bail, the judge must listen to the defendant's defense and the arguments of both the prosecution and the defense in open court. All decisions to refuse bail are also made in public. The court must record in detail the reasons for refusing bail or attaching bail conditions, and serve a copy of the record to the defendant as soon as possible. Generally speaking, bail decisions must be made with the participation of lawyers and prosecutors.
3. ruling.
Whether the judge agrees to bail or not, a formal ruling must be made, because this ruling will be the basis for the defendant to apply for relief. If the judge grants bail, the ruling must specify the conditions that the trustee should abide by and the punishment after violating the bail regulations; If the judge refuses to grant bail, he must clearly state the reasons for his refusal.
Step 4 get rid of it.
"No relief, no rights". British and American countries also have detailed provisions on bail relief. Scotland's "1995 Criminal Procedure Law" stipulates that the defendant who refuses to accept the bail decision can also seek relief by reviewing the appeal [4]. In addition, most countries in Britain and the United States have stipulated the procedures for applying for habeas corpus. Habeas Corpus [5] is a judicial order issued to detainees, whose function is to examine the legality of detention or imprisonment and correct illegal detention or imprisonment.
(3) the way of bail
In English law, bail can be divided into unconditional bail and conditional bail. Unconditional bail came into being before conditional bail and was widely used. Unconditional bail, release without asking for money or witness guarantee or other conditions. Compared with unconditional bail, Britain has set various conditions for conditional bail. Conditional bail is basically applicable to criminal suspects with serious criminal circumstances. The most common applicable conditions include living at a designated address, not contacting with designated personnel, not going to a specific place, imposing a curfew, calling the police at a specific time, and under certain restrictions, the court may require a deposit to ensure the defendant to appear in court on time. Others include time limit, surrender of passport, electronic technology monitoring, etc. [6]
(four) the operation guarantee of the bail system
In countries that have established bail system, the services provided by social organizations and institutions that support bail have created a good operating environment for the bail system. The National Probation Department in England and Wales plays an important role in providing expert advice and assisting the courts in making bail or imprisonment decisions for defendants. For example, the rights of a probationer in court include the right to provide bail information service, the right to use probation and bail hotels, the right to report the prisoner's situation to assist the court in sentencing decision, and the right to use community correction or put forward remand imprisonment. These rights play a unique role in the bail procedure. [7]
Bell Hotel 1972 was born in Britain. Its purpose is to provide a fixed place, strictly supervise the defendants and help them obey social correction. Gillian Hurst, a senior probation officer in Essex, England, said the court could order these defendants to stay in bail hotels. This person may not have a stable address, or he may be homeless or have no stable residence. The court is concerned about whether they will commit another crime while on bail. The person's habitual residence may not be suitable as a place to decide bail. For example, they may violate their parents or children. If the crime tried or punished is not supervised in society, it may indicate that the public is in danger, so it is necessary to designate him to live in a bail hotel, which is conducive to the supervision of bail bondholders [8].
Special bail support groups can understand the life background and psychological state of defendants and criminal suspects, help them restore their confidence in active life, explain the procedural significance of appearing in court and ensure their appearance in court. Britain also has a duty lawyer system. The lawyer on duty is on call, and the expenses are paid by the state, which can provide bail application service for criminal suspects in time.
Second, the theoretical basis of bail system
Any litigation system has its corresponding theoretical basis, and so does the bail system. The author believes that the theoretical basis of the bail system prevailing in Britain and the United States is as follows:
(A) the concept of freedom
Freedom is one of the core contents of human rights, and Spinoza believes that "freedom is more precious than anything". [9] The right to personal freedom is one of the basic human rights of citizens after the right to life and health, and it is an important basis and guarantee for citizens to exercise other rights, so it should be protected as much as possible rather than deprived. In criminal proceedings, it is particularly important to emphasize the protection of the defendant's legal freedom rights. The author believes that the bail system of restoring the defendant's pre-trial freedom largely reflects the satisfaction of this requirement. If not being detained for non-statutory reasons before trial in the bail system is the negative freedom enjoyed by the participants in the proceedings, then the right to apply for bail, the right to review bail requests and the right to appeal at all stages of the proceedings are the embodiment of the participants' right to exercise positive freedom. In the bail system, bail pending trial is the norm, detention is the exception, and personal freedom cannot be sacrificed unless absolutely necessary. In criminal proceedings, it is undoubtedly a paradox if the defendant's subjective position and various litigation rights are publicized with great fanfare, while depriving the defendant of his personal freedom is a common phenomenon and pretrial detention is the norm.
(2) Presumption of innocence
Presumption of innocence means that anyone should be regarded as innocent in law until he is finally confirmed guilty through legal judicial procedures. Beccaria said, "A person can't be called a criminal until the judge decides." [1 1] "As long as it can't be concluded that he violated the contract that gave him public protection, society can't cancel his public protection", [12] "If the charges are uncertain, an innocent person should not be tortured, because according to the law, his crimes have not been proved". [ 13]
Since those criminal suspects awaiting trial are legally considered innocent, it is necessary to imprison or detain those who are legally innocent. Since the trial result is innocent before it is announced, detention is contradictory to it unless it is absolutely necessary. It can be seen that the bail system ensures the realization of the principle of presumption of innocence in criminal proceedings, which provides the necessary theoretical premise for the further establishment and development of the pre-trial bail system.
(3) Balance between prosecution and defense
The state holds sufficient judicial resources, and state organs can take a series of measures and means to discover, prove and punish crimes, so as to realize the state's punishment right and safeguard the overall interests of society. But power is perishable, expansive and destructive. Montesquieu said that "all people with power are easy to abuse their power". [14] Westerners never believe in state power, and think that there is a crisis of infringing individual rights lurking in state power. In order to eliminate this crisis, we must emphasize the balance between individual litigation ability and national coercive power, and use rights to restrict power. In the pre-trial procedure, once the arrested person is suspected of being guilty and his personal freedom is restricted, he is faced with a powerful state machine, and the state has sufficient manpower, material resources and financial resources to collect and collect evidence of his guilt. The arrested person is at an obvious disadvantage, and it is much more difficult for him to plead and prove his innocence than for the judicial organs to prove his guilt. It's not fair. Just like boxing, it's not a heavyweight at all. Two players can't compete.
The balance between prosecution and defense is an effective way to correct the congenital imbalance of power (interests). The establishment of mutual checks and balances of criminal procedural rights (interests) not only meets the requirements of criminal substantive law, but also reflects the inherent needs of criminal procedural justice. In judicial theory, "regular triangle structure has the function of ensuring judicial justice, and relying on the function of litigation itself and giving full play to its restrictive role can make judicial justice and enhance people's trust" [15]. The author thinks that the operation of bail system embodies this principle, firstly, the principle of judge's discretion, and secondly, bail can bring obvious benefits to the defendant.
Bail procedure basically follows the principle of judge's discretion. The litigation system in common law countries mostly follows the principle of judge's discretion. Because it is necessary to restrict the exercise of the compulsory punishment power of the examining and prosecuting organs, and it cannot hinder their enthusiasm and initiative in prosecuting crimes, it can not only ensure the accuracy of investigating crimes, but also ensure that criminal suspects can get timely and effective procedural relief when they are illegally violated by extended detention, so that the whole procedure can be justified. Only judges can be competent for such an important task, and only neutral judicial organs can play such a role. The judge's detachment and neutrality have independent intrinsic value, which makes both the prosecution and the defense equally, thus making the judgment result more easily respected and trusted by both sides. In some common law countries, the power to decide bail is given not only to judges, but also to the police as investigation organs. Under certain circumstances, there are a large number of police bail in Britain, but this is mainly to improve judicial efficiency and does not violate the principle of judge's discretion, because people who are dissatisfied with the police decision can seek relief from the judge, and the final decision on bail remains with the judge.
The right to bail embodies the concept of equal rights and the balance between prosecution and defense. It is given to ensure that a certain concept of fairness and natural justice is not affected by special circumstances, and it is a manifestation of the improvement of the criminal suspect's litigation status. Giving the criminal suspect and defendant the right to release before trial is obvious to his interests: (1) Not everyone who is detained before trial is punished by detention. According to the data released by the United States in 2000, 47% of the detainees were sentenced to imprisonment, about 27% were acquitted or the case was closed, and the rest were given non-imprisonment punishment. In many cases, detention is unnecessary; [16](2) It can be manifested as a positive impact on the judicial process. Defendants released on bail and awaiting trial do not need to be detained, which is convenient for defendants to find witnesses and new evidence, and has more opportunities to discuss with lawyers and prepare their defense, and does not hinder criminal proceedings.
(4) Litigation interests
"Without justifiable reasons, people can't increase the economic consumption of the program in the process of operation. Other things being equal, anyone who cares about public welfare has reason to choose a scheme with lower economic consumption. " [17] Bail embodies this principle. First of all, if the state organ exercising the right of prosecution tends to detain the defendant in the process of prosecution, it will require a lot of manpower and material resources, which will inevitably lead to a shortage of judicial resources. The wide application of bail system can greatly reduce the pressure of detention places and reduce the cost of detaining criminal suspects and defendants. Specialized state organs can devote more manpower, material resources and energy to other links of criminal procuratorial activities, so as to rationally allocate judicial resources. Secondly, it is up to the judge to decide whether or not to get bail pending trial and when to cancel bail pending trial, which can ensure objectivity and justice and reduce the chances of retrial or criminal compensation caused by indulging in crimes and misjudging innocence, which is also the performance of litigation benefits. Thirdly, according to the provisions of the Bail Law, the police must collect evidence during bail before making charges, otherwise they can only release the suspects. In order to combat crime, the police must speed up their work and improve their work efficiency, which is of great significance to criminal proceedings. Beccaria said: "The faster and more timely the punishment for crimes is, the fairer and more beneficial it will be. It is fair because it reduces the useless and cruel torture that uncertainty brings to prisoners. " [ 18]
Conclusion:
There are many differences between the bail system and China's bail pending trial system in nature, operating procedures, security methods, post-bail monitoring measures, the role played by decision-making organs and even lawyers. The author thinks that the bail system in Britain and the United States is much more advanced than that in China, and there are great differences between them from the perspective of concept and system norms, and the so-called differences reflect the shortcomings of the bail system. Therefore, it is the most direct, feasible, simple and effective way to reform the bail system by learning from foreign bail system models and establishing a bail system with China characteristics.