CSPC Briefing – Impact of Delays and unaffordable bail on ATD’s

1. CSPC Briefing – Impact of Delays and unaffordable bail on ATD’s Wednesday 3 November 2010

2. Presentation Contents • Introduction • Further Investigations • Withdrawals • Case Finalisation Times • Bail Protocol • Bail – 2 Stage Approach

3. 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

4. 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

5. Withdrawal of Cases • 65% of matters defended by Legal Aid SA are withdrawn before trial • There are a multitude of reasons for this high withdrawal rate • Most are withdrawn at a late stage when trial preparation has already been done resulting in the ineffective use of resources • The CJS Review Protocols seeks to address this by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

6. 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

7. 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

8. 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

9. 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

10. Thank you