Georgetown, Guyana – The issue I am about to treat with may not worry you too much if you or anyone who concerns you have never been remanded to jail. But I’ll tell you, it should worry you as a citizen of Guyana; and it should worry you even more if you contribute to this beautiful country of ours by paying tax.
My recent visit home has left me very unsettled about the attitude of the magistrates’ court relative to the granting of bail to accused persons. I am speaking particularly about the Georgetown Magistrates’ Court. Might I make it clear, at the outset, that I CANNOT say that the practice which I will promptly document is consistent across all the courtrooms contained in the magistrates’ court. If it is, then I will be rendered equally uneasy by it. If it is not, then I will be relieved that this practice is not widespread. Furthermore, I have no interest in naming the particular court/s.
I sat in court an observed that several persons were denied bail despite impassioned pleas by individuals themselves when unrepresented, and attorneys on behalf of the clients they represented. I made bail applications as well and they were similarly denied. For one young man, who’s under the age of 20 years old, and whose matter I appeared in as a ‘friend of the court’, I took the liberty of addressing the court at length on the fundamental principles which should guide the granting of bail. Bail was nevertheless refused. I will revisit this particular matter shortly after I treat with the factors which should inform the granting of bail.
Unlike Trinidad and Tobago, Barbados, and the Bahamas, Guyana does not have a Bail Act. The Bail Acts in these territories guide the court in the factors which the court must consider in deciding whether or not to grant bail to the accused person. Trinidad and Tobago goes a tad further; there is a constitutional right to bail in Trinidad and Tobago. This right is not without restrictions, as courts do not have jurisdiction (authority) to grant bail to certain categories of accused persons; for instance, those charged with murder and treason. Also, even those who qualify by virtue of the constitutional right are still subject to the factors which the court must consider by virtue of the Bail Act. Guyana, on the other hand, does not guarantee its citizens a constitutional right to bail. Our Constitution (Article 139 (4) for those who care to look it up) states simply that an accused person should be released either unconditionally or conditionally if a trial into the allegations against that person cannot be commenced within a reasonable time. Now, what amounts to ‘within a reasonable time’ will vary depending on the circumstances of the particular case. So the right is really a right to a trial within a reasonable time; not a constitutional right to bail.
Though there is no Bail Act in our laws, the issue of bail is treated with in different pieces of laws. For instance, there is the Criminal Law (Procedure) Act Cap. 10:01 (particularly s. 82 in the online version) which deals with the granting of bail in Guyana generally. What the section says in essence is that someone who is charged with an offence (usually not so serious) where the penalty is either a fine or imprisonment for less than two years shall be entitled to bail. However, where the offence is of a serious nature and the penalty exceeds two years, then the discretion is that of the magistrate whether or not to grant bail. The exception is persons charged with any form of treason or murder; no bail!
So let’s talk about the magistrate’s discretion. This simply means that it’s up to the magistrate whether or not bail should be granted. However, the exercise of the magistrate’s discretion should not be informed by the magistrate’s mood- depending on which side of the bed he or she wakes. Otherwise, this leaves the accused person truly at the mercy of the magistrate. Since we have no dedicated Bail Act, the courts of Guyana must have regard to the common law (the law which was common to all of England and her colonies, Guyana included) principles relative to bail. There are four key principles:
1. The nature of the accusation (whether it’s arson, larceny, etc);
2. The nature of the evidence in support of the accusation (basically how strong is the evidence against the accused person);
3. The severity of the punishment which conviction will entail (whether a fine or/and imprisonment; and if imprisonment, then for how long); and
4. Whether the sureties (person who takes bail on behalf of the accused) are independent or indemnified (will be repaid) by the accused person.
The main consideration, which the court must always have at the back of its mind when deciding whether or not to grant bail, is whether the accused person will return to court for his trial. So naturally the court would be slow to grant bail in circumstances where the offence is a really serious one; where the evidence against the accused persons might be very strong; where the penalty is heavy; and where the surety might be under the control of the accused and not the other way. In addition to these factors there are other key factors which have a bearing on the exercise of the magistrate’s (or judge’s as the case might be) discretion: whether the accused has a fixed place of abode (this would make it easier to find him); whether the accused has ties to the community (this will perhaps reduce the likelihood of him just leaving without a trace); whether the accused is known to the police (this may mean simply whether the police are familiar with him, or whether he has a criminal record); whether he is likely to interfere with witnesses, or obstruct the course of justice. Some courts have regard to the age of the accused as well.
There is case law (what we call legal authority) which states that the court should be very slow to deny bail in instances where it has a discretion to grant bail. The denial of bail really should be a last resort. The court, the case law suggests, should, in circumstances where it has a legitimate cause to favour not granting bail, explore fully whether it cannot set certain conditions which will minimise the risk of the accused person not attending court whenever his matter comes up. And there are a number of conditions which the court has recourse to: the accused person can be called upon to surrender his passport (if he has one); he can be instructed to reside at a given address for a period of time or until his matter finishes; he can be instructed to report to a given police station on given days; he can be instructed to not have any contact with the victim (very common or automatic in crimes which have victims); etc.
The young adult I referred to above is charged with a serious offence which maximum penalty is heavy. The evidence against him, on the face of it, is not strikingly persuasive. He has no convictions and neither does he have any other matters pending. He has a fixed place of abode. His mother was present. He held himself as being gainfully employed in an honest job. The prosecutor’s single objection to bail was the seriousness and prevalence of the offence. He was denied bail. And so were others with accusations of less serious sins and equally generous circumstances in terms of being presumably first time offenders.
Society must be protected from individuals who are preys upon society. Our judicial system has a responsibility in this regard. However, the presumption of innocence (the notion of being innocent until proven guilty) must mean something, especially for those who don’t have a demonstrated history of criminality and those whose supposed infractions pose no threat to the safety of society. When such persons are denied bail at the magistrate’s court, their recourse is to seek bail at the high court before a judge in chambers (away from the public eye). This process is expensive both in terms of attorneys’ fees and the likely sum in which bail might be granted. This process is beyond the reach of many poor accused persons and their families; the young gentleman to whom I’ve referred is a striking example. Such attitude towards the granting of bail results in such absurdity as individuals charged with trafficking in a small portion of marijuana (who fail to satisfy the court that the rather subjective standard of special circumstances exists) being denied bail. And the burden is on the taxpayer to feed (at a disproportionate cost) these individuals while and for however long they are remanded. Do we even pause to think about what are the psychological and other consequences imposed upon those who are both morally and legally innocent for the matters for which they are improperly denied bail?
Finally, how do we reconcile denying bail to someone who is charged with let’s say trafficking in 40 grams of marijuana while granting bail to someone who is charged with spiriting away millions of dollars in tax payers money, or smuggling a collection firearms and ammunition? Bail is neither a tool of reward nor punishment. It is a facility in the administration of justice and its core objective must always be at the fore whenever the court is called upon to exercise its discretion to grant it.
