BAIL – A FRESH LOOK

When we first discussed the topic of bail in July 2023, we looked at what bail is, who was entitled to bail, and why bail became accessible to persons charged with murder as a result of the decision of Akili Charles.

As a reminder, bail refers to a monetary sum that may become payable for or on condition of pretrial release from custody. The purpose of bail is to ensure the return of the accused person at subsequent proceedings. The Bail Act is the legislation that governs how bail is granted. It also sets out the necessary provisions for enforcing the requirements related to the grant of bail.

With the recent passage of the Bail Amendment Act 2024, some of these questions have again arisen in the public domain. As we discuss the recent amendment, we will examine what changes have been made and what you need to know about them.

What is the Bail Amendment Act 2024?

The Bail Amendment Act 2024, “the Amendment Act”, which was assented to on 19th July 2024, is an act to amend the existing Bail Act, Chap 4:60. What this means is that various sections in the existing law will cease to have effect and will now be replaced by the sections included in the Amendment Act. In some cases, new sections have been introduced where there was no previous section addressing a particular issue.

How does the Amendment Act change the previous Bail Act?

The key change that the Amendment Act introduces is the repeal of the previous section 5 and the substitution of a new one. The previous section 5 dealt with eligibility for bail, in other words, who is entitled to bail. Correspondingly, it also set out the categories of persons who were not entitled to bail. The new section 5 also deals with issues of eligibility and specifically addresses the circumstances in which bail may be granted.

In essence, this new section seeks to give effect to key comments made by the Privy Council in the Akili Charles judgment and now, among other things, officially gives Masters of the High Court, the power to grant bail to persons charged with murder. This therefore means that now, both Masters and Judges can hear and grant bail applications for persons charged with murder.

Masters of the High Court are similar to Judges in that they have some of the powers of a single judge, except where the law specifically limits their powers.

In relation to those persons specifically charged with murder, the new section also shifts the burden onto the person charged to show exceptional circumstances that justify why he/she should be granted bail. This is a shift from the old law as it was previously recognized that the onus was on the State to satisfy the Court that the person charged should not be granted bail. This applies to all murders regardless of the date of charge.

Persons charged with certain firearm offences or certain specified offences in which a firearm was used are also now required to show exceptional circumstances to justify why they should be granted bail. This applies to those matters charged on or after the assent of this amendment.

For persons charged with serious (indictable) offences other than murder, such as those specified in Part II of the First Schedule, the basis upon which bail may be granted remain the same, except that, where the person has a pending charge for a specified offence or a previous conviction for an offence for which the penalty is ten years or more, the Judge or Master may not grant bail unless the person charged can show sufficient cause why he/she should not remain in custody. The Act has also replaced Part II of the First Schedule of the Act which is much wider than what previously existed.

What does this mean for persons charged?

These new changes place a more rigorous burden on persons charged with murder, and would-be repeat offenders of other serious offences to justify why they are entitled to bail. If you were already granted bail before 19th July 2024 and just awaiting to access same, your bail will continue to apply because it predates the Act.  If, however, you have not been granted bail, you will now be subject to the provisions of the new legislation.  It is important to note, that anyone charged with murder before, on, or after the amendment will now be required to meet the requirements of the Act when applying for bail.

Importantly, if you are denied bail under these new provisions, the Judge or Master must give written reasons for the refusal or granting of bail should either side wish to appeal. An appeal can be filed up to fourteen days from the date of the decision.

This Amendment also places a duty on the Attorney General to review the Bail Act every five (5) years and to cause a report on the review to be laid in Parliament.