Innocent until proven guilty

In recent times there have been calls by concerned citizens that Judges and Magistrates should use their discretion to deny bail to persons charged with certain offences, notably kidnapping, pending the hearing and determination of their cases.  There have also been suggestions to amend the bail laws to widen the category of offences for which bail is not to be granted. One fully understands the pain of victims and their families who have suffered the callous whims of a few who are terrorising the peace of the majority.  At the same time we must be careful that in our haste to condemn the few we do not saddle ourselves with unjust laws that can be used as a tool of oppression.  At Law School an eminent lady legislative draftsman would tell us that when a law is being drafted the draftsman must consider what could happen if that law falls to be implemented by persons bent on abusing it and weigh the potential consequences of abuse against the mischief the law seeks to correct.  That analysis helps to put things in perspective for the draftsman. 

Here, to begin to put the debate into perspective for the rest of us non-draftsmen, we propose to outline the existing laws relating to bail and to inform members of the public about the process of obtaining bail. The Constitution provides two sometimes competing rights.  One is to be presumed innocent when charged with a crime.  The other is that no law may deprive one of reasonable bail without just cause.  Bail is available for most offences.  Only murder and treason are non-bailable offences. Bail is primarily intended to secure the attendance of an accused person to face his trial or case.  It is not intended to punish him.  Only when a person has been convicted should the law seek to punish him.  A secondary role of bail is to ensure that persons who have committed offences do not commit further offences while on bail pending the hearing of their case.  Thus the Bail Act of 1994 provides that a person who has been convicted of an offence on three separate previous occasions of a similar nature to the one charged, is not entitled to bail. 

When a person is charged bail may arise in different circumstances.  Police Officers of a particular rank are allowed to grant bail at a police station in respect of minor offences.  Secondly, a justice of the peace can also fix bail for a person who has been charged and is waiting to be brought before the Magistrate. When the person is brought before the Magistrate, the Magistrate may revisit the grant of bail depending on the representations made.  At this time there are several options open to the Magistrate.  The Magistrate can put the accused on his own bond.  In that case the accused is made to sign his own bond document pledging to attend court on all of the hearings of the case until it is ended, and if he does not, then a sum of money would become payable. If the accused does not then turn up for court the Magistrate has the power to issue a warrant for his apprehension with a provision either fixing an amount of bail or ordering that on arrest no bail is to be granted.  Another option is to fix bail with a surety.  A surety is a pledge by someone other than the defendant to ensure the attendance of the defendant each time the case is called and, if the defendant does not turn up, that surety may be held responsible for the failure to attend. 

This surety or bailor puts up his or her property, whether a parcel of land, or land with a building, as the security.  If the defendant does not appear at court this property may be forfeited by the State to the value of the amount of bail. In a case where the defendant absconds, a summons to show cause as to why the bail should not be forfeited is issued.  The surety comes before a Magistrate to give an account of what steps were taken to ensure the attendance of the defendant. If the surety or bailor is not able to show sufficient cause the Magistrate can order that the property be forfeited, that is, confiscated by the State to the value of the amount of bail. Taking bail is therefore a serious obligation.  If you don’t think you can ensure the attendance of a defendant you should not take their bail. In order to take bail a bailor must have a deed in his name for a property which is unencumbered and for which the relevant land or land and building taxes are fully paid up.  An unencumbered property is one which is not mortgaged or for which a judgment or charge has not been registered.  Further that deed must be a “clean deed” which means that it must not be the subject of another bail obligation.  Any false declarations made in the bail documents may be prosecuted. (To be continued next week)

Ronnie Boodoosingh
Attorney at Law
The Law Association of Trinidad and Tobago