The vexing question of bail

Any useful analysis of the system of bail in Trinidad and Tobago must begin with an examination of the Bail Act 1994 which is the overriding piece of legislation that outlines the framework for the grant of bail. The present difficulties as they relate to the system of bail arise not from overt defects in the legislation but rather in the interpretation and application of its provisions. Attorneys in criminal matters have in recent years, noticed the emergence of certain practices which are a source of great concern.  The first has to do with the practice of tracing - a process whereby police check their records to see whether the accused person has any previous convictions.

There is a perception that more and more magistrates are not prepared to even deal with the question of bail until the trace has been completed. While there can be no objection to a magistrate wanting to ensure whether a person may have previous convictions that are relevant to the exercise of the court’s discretion, the problem that arises is that most times the police never have the trace available on the first appearance or that the complainant does not appear and as a consequence the person is remanded sometimes (because of the workload in the court) to the next ten days before the material is provided to determine the issue of bail. This might have been tolerable if this was exceptional but it is not.  If the court wishes to adopt a conservative stance on this issue then pressure must be brought to bear on the State to ensure that the required information from the police is made available within 24 hours or less so that the individual’s right to bail may have some meaning.

Another area for concern deals with the perceived unwillingness by certain courts to deal with the issue of bail as it relates to certain types of offences which are on the face of it bailable. Two popular categories include the reluctance to grant bail to non-nationals even when they are on relatively trivial matters and those charged under the Sexual Offences Act. This practice is a matter of great concern and the courts should be prepared to grant bail even with stringent conditions if necessary but bail should be granted. Very often, the prosecution without more, objects to bail because of the nature of the offence - usually because of the seriousness of the offence. Such casual objections are counterproductive and fail adequately to take into account that by international standards, mere assertions by the prosecution of a general nature are an insufficiently sound basis for refusing bail. Objections to bail must be supported by “relevant” and “sufficient”  reasons   for departing from the presumption of bail.
There is need for the court prosecutors to exercise some greater discretion when fulfilling their obligations as officers of the court in determining whether to object to bail.

It is also necessary for the courts to ensure that the objections raised by the Prosecution are substantial and relevant. It is only when this is achieved that the spirit of the Act be maintained. There is need also for greater certainty and consistency in the type and amount of bail granted among the various magisterial districts. On one occasion, one magistrate in one jurisdiction granted bail to an 18-year-old first offender charged with demanding money ($30,000) with menaces in the sum of $250,000 with surety, and in that same week another court faced with a similar charge with a first offender demanding $50,000 was granted bail in the sum of $60,000 with surety. The judicial system perhaps would be better served if guidelines could be provided outlining a range of amounts that should be granted in bail depending on the circumstances of a particular case. This would lead to greater certainty in the law and would be welcomed. The current practice of granting bail, places an over-reliance on the use of sureties, and disadvantages the poor by stipulating that any surety taken must be in relation to land.  This is wholly unnecessary and causes severe prejudice to those who may not own land, but are still able to provide a surety in another form.

There is widespread use of unrealistic and onerous bail conditions (especially sureties) in cases where this may not be necessary, and that this is effectively denying defendants the opportunity of meeting those conditions.  In turn this results in many more persons being remanded in custody than may be necessary, and in accused persons spending longer in jail than any sentence that may be imposed if ultimately found guilty. This over-dependence on land does not reflect the principles of fairness and justice, which should be reflected in the granting of bail, especially for offenders who have pleaded not guilty. At the end of the day there is a need for extensive research to be done to investigate the situation as to the practice and statistics in relation to the granting of bail by different courts within the jurisdiction. There should be a detailed study relating to types of offenders, and for what types of offences bail is being granted (or not) and with what conditions imposed.  We urge that particular attention be paid to the issue of sureties, and statistics obtained as to the regularity of use of sureties, and the type and nature of sureties used (e.g. equity in land  and/or money sureties).

In the more serious offences, those which are generally indictable, it is interesting to note that almost 40-50 percent of the matters that get to the High Court end in favour of the accused person without a conviction being recorded. It would be a serious indictment on the system of justice if the statistics were to reveal that a large number of these persons spent extensive periods in custody awaiting trial because of the shortcomings of the bail system. 

Submitted by the Law Association