In a society where 605 murders were recorded in 2022, the highest in our country’s history, it is only natural that law-abiding citizens would clamour for more punitive measures for those convicted of crimes, especially murder.
The grant of bail, however, is not and should never be treated as a punitive measure. Bail is not granted to those persons convicted of crimes, (except in exceptional cases, where an appeal is filed) but rather it is a legal process available to persons who are alleged to have committed a crime. A person is presumed innocent until proven guilty. Therefore, for persons charged with having committed a criminal offence are cloaked with the presumption of innocence unless and until a Judge sitting alone or a jury of his/her peers says otherwise. Moreover, constitutionally, every citizen has the right not to be deprived of reasonable bail without just cause.
Perhaps, the best place to start in understanding the bail process generally and specifically for murder accused, would be an examination of what exactly constitutes the legal remedy that is bail.
What is Bail?
Bail generally 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 attendance of the accused at his court proceedings. Where a person is granted bail with a surety, the surety becomes responsible for ensuring the accused’s attendance at every hearing, until the case is determined. Should the accused person fail to appear at his hearing, the surety becomes liable to lose whatever asset(s) or sums of money were used as security to secure that person’s bail. Conversely, once the matter is determined and the accused person adhered to his bail conditions, then the assets or money held as security will be returned to the surety.
Who is entitled to Bail?
According to the Bail Act, a Court may grant bail to any person charged with any offence, other than an offence listed in Part I of the First Schedule to the Act. A court also shall not grant bail to a person who is charged with an offence listed in Part II where that person has been convicted on three occasions arising out of separate events, unless upon making an application to a Judge, that person can demonstrate that (s)he should not be remanded in custody. Offences in Part I of the Schedule include treason and piracy. Offences in Part II of the Schedule include but are not limited to offences such as trafficking in or possession of drugs for the purpose of trafficking, possession and use of firearms or ammunition with intent to injure, rape, and robbery.
Prior to 2022, murder, which is one of the offences listed in Part I of the First Schedule was considered to be a non-bailable offence. However, since the Court of Appeal decision in Akili Charles (Civ Appeal No. CA S 046 of 2021), which was affirmed by the Privy Council ([2022] UKPC 31), it is now understood that a person charged for the offence of murder, may upon the discretion of the Court, be granted bail.
Why Bail for Murder?
The view of the courts is that at the inception of our country’s Constitution, there was no general ban against the grant of bail to persons who were charged with murder. Thus, it was always within the jurisdiction of the Court to grant bail. Any attempt therefore to remove the jurisdiction of High Court Judges to grant bail to persons charged with murder offends the rule against the separation of powers and trespasses on the function of the Judiciary. Furthermore, such a general ban is not reasonably justifiable in a society having respect for the rights and freedoms of the individual.
As such, murder is to be treated as a bailable offence but it does not mean that the grant of bail for a person charged with murder is automatic. A person must still satisfy the Court that there are no substantial grounds for believing that if released on bail (s)he would not fail to surrender to custody, would not commit an offence while on bail or would not interfere with witnesses or otherwise obstruct the course of justice. One of the major factors that the Court considers before exercising its discretion to grant bail, is the nature and seriousness of the offence and the probable sentence likely to be given. As a necessary consequence, the Court must consider the strength of the proposed evidence against the accused.
While a person may be granted bail for murder, the fact remains that murder is still the most serious offence. Bail applications of this type therefore are meticulously considered by the Court. The severity of the offence is often a reason for caution. This very well may be the reason why, of the 698 applications for bail for murder accused, that have been made as at May 2023, only 39 have been successful.
Submitted by:
Whitney Franklin
PDII Senior of the Public Defenders’ Department
Legal Aid and Advisory Authority
23 Stanmore Avenue, Port-of-Spain
Contact: 638-5222
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