Bail must be balanced against societal interests – High Court Judge
The process of bail is simply to obtain the release of oneself or another by providing security for a further appearance in court with or without conditions. The question of bail has oftentimes been the subject of adverse comments by members of the public who hold the view that sometimes bail is granted when situations do not warrant.
At a recent webinar aimed at providing reporters, university students and members of the Guyana Police Force and civil society with a better understanding of Guyana’s Judiciary, High Court Judge Sandil Kissoon explained that “bail is an entitlement and not a privilege” based upon existing laws.
To better understanAd the issue of bail, Justice Kissoon highlighted that it starts with the right to liberty of every citizen enshrined in Article 139 (1) of the Constitution. Also, he noted that Article 144 (2) of the Constitution of Guyana guarantees due process of the law and the presumption of innocence for every citizen charged with a criminal offence.
“Civilisation has from ancient times, regarded the liberty of the subject as sacrosanct. Life and liberty both are the most sacred of our fundamental freedoms and it is now enshrined in the laws of every civilised nation and international charter,” he further noted.
He explained that the relevance of this is two-fold, in that it makes us aware of the importance of the process of bail as a mechanism for the protection of our fundamental rights and secondly, it informs and guides us that only in cogent and compelling circumstances a citizen may be deprived of his liberty when charged with a bailable offence.
“The presumption of innocence is a very important factor when dealing with the issue of bail. The process of bail is an essential component of the criminal justice system and its fundamental importance lies in its preservation and protection of the liberty of each and every citizen charged with a criminal offence in whose favour the presumption of innocence applies.”
He explained that the rationale for the grant of bail includes: to protect the liberty of the citizen who is presumed innocent until proven guilty; to ensure the protection of the public interest and public safety, to ensure the defendant receives a fair trial and most importantly it removes a burden on the treasury of providing housing, care and maintenance of persons who are detained.
He, moreover, noted that the legislative framework governing the grant of bail in Guyana encompasses bail at every stage of the criminal proceedings which are at the stage of the investigation, bail pending trial and filing an appeal after conviction.
“The purpose of the bail provision is intended to balance the need to ensure accused persons appear for their trial; the need to protect the community and the administration of justice and the right to protect the liberty of persons who are presumed to be innocent,” the Judge added.
According to Justice Kissoon, the Criminal Law Procedure Act sets out the categories of offences bail ought to be granted for, and also makes provisions that if bail is denied by a Magistrate for an accused person to make an application before a Judge of the High Court for their release.
Further to that, he said there is also an express statutory provision against the imposition of excessive bail. Justice Kissoon went on to clarify that Section 82 (c) of the Criminal Law Procedure Act does not contemplate the remand of a defendant charged with an offence which carries a term of imprisonment of less than two years.
Notwithstanding, he pointed out that in appropriate cases, Magistrates may remand a defendant, “as experience has taught us what appears to be a slight or minor offence in the first instance [such as] threatening behaviour, threatening language leads to much more grave offences after the fact.”
During the webinar, Justice Kissoon informed that the following conditions are to be considered when granting bail: the likelihood or otherwise of the defendant disparaging before trial; the chances of him committing further offences when out on bail; the chances of him interfering with the course of justice when out on bail; where the crime is one of extreme violence or sexual assault or mental abnormality is reasonably suspected; whether he may tamper with witnesses; whether there are reasons concerning the investigation or prosecution of the matter that requires him to be kept in custody.
He, however, underscored that paramount consideration is at all times given to whether the defendant will appear for his trial. With regards to objections to bail, he said that local courts have ruled that objection to bail must be supported by cogent facts to lead to this refusal. Majority of criminal matters are disposed of in the Magistrates’ Courts.
In this regard, the Judge stated that it is important to note that Magistrates are creatures of statute meaning that they cannot act outside or beyond the bounds or parameters of the authority which is granted under the legislation.
For example, he outlined that in relation to specific offences, Parliament has removed and/or limited the discretion of a Magistrate to grant bail. This, he added, is evident in the Narcotics and Psychotropic Substances Control Act, which authorises a Magistrate to only grant bail in limited circumstances for special reasons. Furthermore, he said that by Section 15 of the Kidnapping Act, a Magistrate has no discretion to grant bail for offences under this Act.
On the other hand, he explained that a Judge of the High Court has the discretion to grant bail for every criminal offence and may exercise that discretion even in respect to offences which are not ordinarily bailable where there is inordinate delay in the commencing of the trial. On this note, Justice Kissoon referred the local case of Hemchand Persaud v the Attorney General, in which bail was granted for the offence of murder by the late Chief Justice Ian Chang. (G1)