A few weeks ago, the granting of bail to Yorgen Fenech, accused of multiple counts of serious crimes, posed the problem of avoiding liberal bail when there is reason to fear absconding or further offences.

The use of money bonds as a part of the bail system in Malta obviously favours those able to procure the funds necessary for release. This has enabled rich persons accused of very serious offences, including those in organised crime, to obtain bail, whilst poor persons accused of relatively minor offences have been held in custody.

There ensued a public uproar, and the discussion is still ongoing on our bail system, centring on the fairness of its application, the effect of not granting bail on the assumption of innocence until proven guilty, the invalidity of the assumption that it is possible to predict the future possible behaviour of the accused, and the disadvantages of not granting bail.

In approaching this subject matter, one must keep in mind the conflicting policies inherent in the subject.

The desire of society to have the accused stand trial must be balanced against the desire that no untried accused be needlessly detained. Many times the practical availability of bail to an accused will depend upon which policy the court desires to place its stress on.

Grave abuses of bail are all too often perceived by the general public. There is a general complaint that admission to bail is a perfunctory routine, that the amount is fixed capriciously or with reference to arbitrary schedules with no real consideration of the circumstances of the particular case, that there is frequent carelessness as to the security, or no effective security for appearance in cases where such security is needed.

For a better understanding of the many facets involved in the proper administration of bail, it is worthwhile to inquire into the historical background of the subject. The delivery or bailment of an accused person into the hands of his friends while he is awaiting trial is a process that has its foundation deeply embedded in the traditions of English law. In fact, it has been said that the concept of bail is as old as English law itself.

Malta's present notions of bail, however, are specifically provided for in the criminal code. Moreover, Article 575(5) thereof affords the right to bail to anyone accused and remanded in custody whenever either a bill of indictment has not yet been filed or is not tried by the court of magistrates within the specified time, depending on the nature and gravity of the crime.

However, the concept of bail, as a matter of right in those circumstances, has caused its administration to be so inflexible that bail often fails in one of its purposes, namely securing the presence of the accused at the time of trial. The absolute right to bail has hindered the courts from using their sound judicial discretion in denying bail in cases where it seems likely from the individual's record that the accused will jump bail.

The notion of bail as a matter of right has forced courts to free an accused on the presentment of the proper security.

This discretion in determining the amount of bail is a factor that a court can use to counteract the undesirable results in administering bail caused by the lack of judicial discretion in refusing bail in the instances mentioned above.

I believe that the effective administration of bail depends on the wise exercise of judicial discretion in fixing the amount of bail. Unfortunately, bail is often administered routinely with no particular regard to the circumstances of the case, nor is careful thought given to what a reasonable and proper amount of bail would be.

The bail system derives most of its flexibility from the wide discretion that is allowed in fixing bail, but if the judge fails to take advantage of this allowable flexibility, the administration of bail is thereby greatly weakened.

The effective exercise of this important discretion in determining the amount of bail presupposes the consideration and evaluation of several elements that are inherent in each bail application, i.e., the nature of the offence, the penalty involved upon conviction, the pecuniary and social position of the accused, the general reputation and character of the defendant, the applicant's previous criminal record and the weight of the evidence held by the prosecution.

If carefully evaluated, each of these factors indicates the probability that the accused may or may not abscond.

Undoubtedly, the issues with bail in Malta become problematic since criminal proceedings take too long to be completed and do not pay homage to the fundamental right to a fair trial within a reasonable time.

The more time passes, the more the probability, if not certainty, that bail has to be given.

The root cause remains, apart from other factors such as lack of sufficient resources, lawyer tactics from both prosecution and defence counsels, and the length of the compilation proceedings that precede the trial proper, by jury or by the criminal court.

In many cases, granting bail is to avoid the situation of the trial process itself being the punishment.

While it is true that, to somehow redress this core problem, the government is bent on reforming the compilation procedures by reducing their timeframe, as well as protecting the rights of the victims as well as the accused, it remains to be seen whether this will solve the problem.

Dr. Mark Said is an advocate