Jan 14, 2022·edited Jan 14, 2022Liked by Samuel Bickett
Re the bail situation, the current operation seems to be a 25-33% bail rate for the "safest looking", to give effect to the clear intention that most defendants don't get bail and the fact that bail is not just ruled out. The people up there seems to have accepted this interpretation.
TBF, I don't think the "will not continue to commit" is malice on the drafters' (someone in LAC) part. If nothing else, it could bounce in the worst possible way - to the drafter, who probably breathed a sigh of relief when the Hong Kong judges handled it the way they did. Keeping it to "will not commit" will do nicely for their purposes. "Will not continue to commit" is actually quite common language - one example below:
and the drafter probably just cut and paste the formulation, thinking he is following "common law" practices.
The irony is that in some ways, the mixture of NSL and the common law means that defendants can have a poorer shake than they would even in the Mainland. The first day NSL was enacted, I remember the police arresting a 15-year-old, and I was thinking, "Man ... up there wouldn't she get until 16 before she can be liable for a national security crime at all"?
This bail situation is another. The common law *assumes* good faith on the part of the prosecutor and the courts, and thus has no hard-baked time limits. Up there, even with the relevant authorities rubber-stamping all the extensions, in two years it must be decided once and for all in the court. Possibly motivated by a 99% statistical conviction rate, the rule is actually followed, more or less. Two years starts looking decent when compared to infinity.
If "pre-trial detention" is technically not punishment, even in the case of bail being granted ... the judge sets tight bail conditions that look very similar to the "Control" + Deprivation of Political Rights articles in the Chinese Criminal Law. In essence, by the PRC's own written standards, the defendants are being punished for indefinite periods.
The problem for the CFA is courage aside, that there's no statutory basis (like a hard deadline in law) that allows them to justify throwing the case out. In essence, the NSL wants the courts to treat the accused acts as at least equivalent to a violent crime, a far cry from misfeasance. I don't think a "soft standard" like "abuse of process" is going to cut it.
Re the bail situation, the current operation seems to be a 25-33% bail rate for the "safest looking", to give effect to the clear intention that most defendants don't get bail and the fact that bail is not just ruled out. The people up there seems to have accepted this interpretation.
TBF, I don't think the "will not continue to commit" is malice on the drafters' (someone in LAC) part. If nothing else, it could bounce in the worst possible way - to the drafter, who probably breathed a sigh of relief when the Hong Kong judges handled it the way they did. Keeping it to "will not commit" will do nicely for their purposes. "Will not continue to commit" is actually quite common language - one example below:
https://www.mainelegislature.org/legis/statutes/15/title15sec1097.html
and the drafter probably just cut and paste the formulation, thinking he is following "common law" practices.
The irony is that in some ways, the mixture of NSL and the common law means that defendants can have a poorer shake than they would even in the Mainland. The first day NSL was enacted, I remember the police arresting a 15-year-old, and I was thinking, "Man ... up there wouldn't she get until 16 before she can be liable for a national security crime at all"?
This bail situation is another. The common law *assumes* good faith on the part of the prosecutor and the courts, and thus has no hard-baked time limits. Up there, even with the relevant authorities rubber-stamping all the extensions, in two years it must be decided once and for all in the court. Possibly motivated by a 99% statistical conviction rate, the rule is actually followed, more or less. Two years starts looking decent when compared to infinity.
If "pre-trial detention" is technically not punishment, even in the case of bail being granted ... the judge sets tight bail conditions that look very similar to the "Control" + Deprivation of Political Rights articles in the Chinese Criminal Law. In essence, by the PRC's own written standards, the defendants are being punished for indefinite periods.
The problem for the CFA is courage aside, that there's no statutory basis (like a hard deadline in law) that allows them to justify throwing the case out. In essence, the NSL wants the courts to treat the accused acts as at least equivalent to a violent crime, a far cry from misfeasance. I don't think a "soft standard" like "abuse of process" is going to cut it.
I am curious. Who decides which judge presides over what case? Is it like a lottery or a specific person will make the decision randomly?