Friday, February 23, 2018

Talking about bail

Dana Seetahal logo39

Mark Fraser

 The current debate on bail and when or whether it should be withheld raises questions in the minds of many people, not what bail is but how exactly it operates.

Bail is deemed as pre-trial release in criminal proceedings. The question of bail only arises if a person has been arrested on a charge. In respect of a person who has been summoned to court, no question of bail arises, since he is not in custody. Bail may be considered a contract whereby an accused person is released on certain terms from custody to his surety or sureties. If granted bail, the defendant signs a bond in the court or the prison, undertaking to appear for his trial. This is the contract, which is “guaranteed” most of the time by a surety or sureties, as specified in the court order. 

When charged with a crime, an arrested person may be released from custody only on bail pending the determination of his case. Of course, a defendant may be released on signing his own bond, that is, with no surety, but this is not common practice and usually only occurs with trivial offences. Our Constitution specifies in section 5(2) (f) that an arrested person has a right not to be deprived of “reasonable bail without just cause”. It is clear, then, that the constitutional right to bail is not open-ended. A person may be denied bail once there is just cause.

Just cause can include many things. The chief determinant is the probability that if bailed the defendant is unlikely to attend his trial.  How a court makes this assessment varies but factors such as the seriousness of the offence, the severity of the punishment as well as the strength of the prosecution’s case will allow the court to determine whether the defendant is likely to be a flight risk. 

In a 2005 case the Privy Council recognised that, “It is obvious that a person charged with a serious offence, facing a severe penalty if convicted, may well have a powerful incentive to abscond or interfere with witnesses likely to give evidence against him, and this risk will often be particularly great in drugs cases”. The Privy Council approved the public interest grounds held by the European Court to justify the withholding of bail: the danger of flight, interference with the course of justice, the prevention of crime and the preservation of public order. In our Bail Act there is a requirement that the court should consider whether the defendant, if released on bail, is likely to interfere with witnesses or otherwise obstruct the course of justice. 

It is also another independent ground for refusal of bail if the defendant was already out on bail when he was charged with committing the current offence. This factor may ground the basis for a court refusing bail even if there is no likelihood of the defendant absconding. Further, the court may also refuse to grant bail in circumstances where the defendant has a bad criminal record. This makes it likely that he would commit further offences of a similar kind while he is on bail or be likely to abscond. In many of the recent amendments to our Bail Act Parliament has recognised and has made it difficult for such a person to obtain bail.

A defendant who has been refused bail by a judge may however reapply to the High Court for reconsideration of the issue on the basis of a change of circumstances since the refusal. These could include matters of health or even the delay in setting a trial date. The law now allows the applicant to appeal to the Court of Appeal on a judge’s refusal to grant bail. The prosecution also may appeal to the Court of Appeal a decision of a trial judge to grant bail to an applicant.

In recent times the legislature has sought to remove the discretion from the courts to withhold bail in respect of certain offences. That was so in  Mauritius and St Lucia. In 2006 the Privy Council considered an amendment to the Mauritian constitution which sought to deny the right to bail to persons charged with terrorism or drug offences (whether they had previous convictions or not). The Privy Council held that the law was unconstitutional as it was in breach of the separation of powers doctrine underlying the constitution. Bail was intrinsically within the domain of the judiciary and in a country founded on the rule of law and democratic principles it remained within that domain. 

In St Lucia a similar piece of legislation was struck down where the legislature had purported to deny the right to bail entirely in respect of a wide variety of offences including not only murder but also rape and firearm offences. 

In 2005, 2007, 2008 and 2011, in various amendments to our Bail Act, Parliament sought not to deny the right to bail completely but to restrict it in respect of certain offences. For instance, a person charged with kidnapping for ransom cannot get bail unless his case has not started within 120 days of the reading of the charge against him. Then he may apply to a judge to obtain bail. The obvious purpose of the law is to allow for the holding of a person accused of kidnapping for ransom for 120 days. 

There are also provisions denying bail to a person who has been convicted of three non-violent listed offences in the last 10 years and more recently denying bail to a person convicted of two violent listed offences recorded in the last 15 years. None of these laws has been challenged in the constitutional courts to date and the Government is now moving to deny bail in certain circumstances to persons who have one conviction for a listed violent offence. 

We await the outcome.

* Dana S Seetahal is a former independent senator