What you should know about bail

Some courts also grant what is commonly called “cash bail.”  Bail is fixed in a particular amount, say $50,000.  The court then orders that a part of that money be deposited into court, say $5,000 and a receipt is given.  When the matter is completed, whatever the decision, the court makes an order for the return of the money.  The defendant then makes an application to the Clerk of the Peace for the return of the sum deposited. This has allowed many defendants who would otherwise not be able to get a surety to stand their bail to obtain bail. 

The defendant himself or a close relative is called upon to put up money which they may lose if the defendant fails to attend court.  Having to deposit cash is often a powerful incentive for persons not to abscond or for family members to ensure their relative’s attendance. This device also has the effect of cutting out the illegal practice of professional bailors who demand a percentage of the bail amount as payment to stand bail for defendants.  With professional bailors there is no returning of any money at the end of the case!

Where a preliminary enquiry is held and the accused is committed to stand trial at the High Court, fresh bail is fixed to secure attendance at the High Court.  The same bailor can be used along with the same deed.  When the case is listed for trial at the High Court bail is again set to secure the attendance of the accused until the case is ended. In cases actually tried at the Magistrate’s Court and the magistrate finds the defendant guilty who wishes to appeal, bail may be set pending the hearing of the appeal. Where the penalty imposed is a custodial sentence of three months or less the magistrate is obliged to grant bail. 

If the sentence is for more than three months the magistrate has the discretion whether to grant bail.  Generally, where a magistrate refuses bail a defendant may make a fresh application for bail when the case is next called up once there is some change of circumstance, which the court can consider.  If the magistrate refuses bail an accused is entitled to make an application for bail to a Judge in Chambers.  This is usually done by a letter addressed to the Registrar of the High Court setting out the reasons why one submits bail should be granted.  Sometimes an affidavit is requested putting forward information the court should consider.  An oral application will sometimes be permitted.  The applicant or his attorney is required to contact the Registrar or an Assistant Registrar of the Court through the High Court Registry to arrange this.

Where the magistrate has refused bail pending appeal the convicted person can also make an application to a Judge in Chambers for bail. To grant an applicant bail, some judges are of the view that an applicant must show a real prospect that the case will succeed on appeal either on the basis that the conviction would be overturned or the sentence lessened.  It may therefore be necessary to apply for a certified copy of the notes of evidence from the Magistrate’s Court where the person was convicted so that the judge may review them.  The request is made to the Clerk of the Peace of the respective Magistrate’s Court.  Some judges will not consider the prospect of success of the appeal and can be urged according to the usual factors that govern bail. Where an accused has been convicted and sentenced to a term of imprisonment by a High Court judge bail will only be granted if the applicant persuades a Court of Appeal judge that there is a real prospect of success of the appeal.

Courts in granting bail consider many factors.  If an accused is making an application for bail then he or his attorney will have to satisfy the court that he is not likely to abscond if granted bail.  Factors which usually influence the court include whether there is a fixed place of abode, is the person employed regularly, social and family ties to the community, the seriousness of the offence, whether any previous bail obligations were fulfilled or not, the potential of threats being made to witnesses, the number of pending cases or convictions if any, support of family, any medical condition requiring special attention, whether there was voluntary submission to the court process and so on.  Someone making a bail application for himself should therefore tell the magistrate all of the information that is relevant to deciding the issue. 

Sometimes a magistrate will deny bail, temporarily, when the police need to trace the offender to determine if there are convictions or other pending cases.  As a practice however, police officers ought to trace accused persons by the time they are brought to court and prosecutors should not lightly object to bail on the basis of the need for tracing unless there is some credible information that there are such pending cases or convictions. In addition, in granting bail, a court is entitled to place on the defendant additional conditions to be fulfilled.  These include ordering the surrender of an applicant’s passport until the case is completed or requiring him to report to a designated police station periodically.  The latter order can be made especially when the court is of the view that it is desirable to keep an eye on the applicant.  

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