When an accused person has been charged and is waiting for their trial or sentencing, they may be released on bail. This means they are out in the community rather than in prison and usually this means there are certain conditions that they must abide by.
One of those conditions may be protective bail. This condition is generally imposed in circumstances where there is an alleged victim to the alleged offence, for example the accused may be charged with assaulting someone and the alleged victim of the alleged assault may be protected by a protective bail condition.
Witnesses may also be covered by protective bail conditions. The person protected by the bail condition is called the “protected person”.
In this article, we’ll go through everything you need to know about protective bail and what to expect if bail conditions are breached.
What is protective bail?
Having protective bail conditions usually means that you cannot talk to or go near the protected person. The condition is usually worded in a way that you cannot communicate or attempt to communicate directly or indirectly with the protected person or approach within a certain distance of the Protected Person or where they live, work or are educated.
Communication more commonly includes things like text messages or phone calls, but can also include “liking” a post or sending a friend request on social media. If an accused person is subject to protective bail conditions, they also cannot arrange for someone else to communicate with the protected person on their behalf.
The specific wording of protective bail conditions depends entirely on the case in question and may slightly differentiate in each circumstance so it is important to read through the condition carefully so that you can understand what you can and cannot do. If you are unsure, you should speak with a criminal defence lawyer.
Why are protective bail conditions imposed?
Protective bail conditions are imposed primarily to protect alleged victims and witnesses. These conditions are imposed to stop an accused person from being threatening or intimidating or otherwise interfering with the criminal justice system running its course.
The condition also protects the administration of justice by prohibiting an accused person from discussing their version of events with potential witnesses. In criminal cases, it is extremely important that each witness be able to independently give their version of events freely and to the best of their own recollection, and without being influenced by others.
What happens if a protective bail condition is breached?
A breach will result in a further criminal charge of breaching a protective bail condition.
if you are charged with breaching a protective bail condition, in order to be granted bail again, you must satisfy the Court that you have exceptional circumstances. It can be very difficult to show exceptional circumstances, and this may mean that you are remanded in custody, and have to spend time in jail until your matter is resolved.
Therefore, it is extremely important to abide by any protective bail conditions imposed.
The protected person cannot consent to an accused person breaching a protective bail condition. The condition is not imposed by the protected person, but by the court. This means only the court can vary that condition to allow communication and contact. You should speak to a criminal lawyer if you have questions or need advice around this.
What if the protected person wants to talk to me?
Sometimes protective bail conditions can cause significant issues to an accused person. This can happen where, for example, there is a domestic dispute between a husband and wife and one of them is charged with a criminal offence and placed on bail with protective bail conditions prohibiting them from returning to their own house and from speaking to their spouse. This can also indirectly prohibit them from seeing their children or being able to get their personal possessions from their house.
In some cases, the protected person may also not want the condition imposed as the relationship between them and the accused may be continuing and can cause difficulties for both parties.
An accused person can apply to have a protective bail condition varied or removed entirely. This must be done in court and, until a court has made the change, the condition will be a part of the accused’s bail and must be followed.
In some cases, the condition can be varied to allow contact between the accused and protected person but specify that the accused cannot behave in a derogatory, intimidatory or offensive manner towards the protected person.
Prior to protective bail conditions being removed or varied, the court will generally require the police or prosecution to speak with the protected person to get their views on whether the condition can or should be removed or varied. In domestic violence cases, there is a specialist family violence team within the court that will be involved in the process and will prepare a report for the court after speaking with the alleged victim.
Talk to a Perth bail lawyer about your rights
If you are subject to protective bail conditions and you are unsure about what you can or cannot do, or you would like advice applying to the court to vary or remove a bail condition, or you have been charged with breaching a protective bail condition, please contact our experienced criminal lawyers at Chambers Legal on (08) 9500 8915 or at [email protected].