Bail and the presumption of innocence : a comparative legal study

Abstract

Every person arrested for allegedly having committed a crime, has a constitutional right to be released on bail if the interests of justice permit and subject to reasonable conditions. Every accused has a constitutional right to be presumed innocent until proven guilty. The focus of the research is on the consideration of bail be granted to an accused, charged with offences, falling within the ambit of the various schedules of the Criminal Procedure Act, and the effect thereof on the presumption of innocence and an accused’s constitutional rights, with a critical comparison to the Canadian law and its Constitution. The research investigates the origin and historical background of bail with specific comparison to our current South African bail legislation. The evidentiary rules in bail applications are explored and discussed. The reverse onus in schedule 5 and 6 bail applications and the effect on the presumption of innocence is meticulously assessed and analysed. The discussion of bail pending appeal, after leave to appeal having been granted against conviction, explores the reality of the restoration of the presumption of innocence, post-conviction. The conclusions reached in this research indicate that the Canadian bail legislation is more liberal and sensitive to the rights of an accused and, as such, the South African legislation should align itself with the Canadian legislation. The final recommendations propose particular amendments to the current legislation, which will address the criticisms identified in the research.