Bail Acts Of The Caribbean Report
Bail Acts of theCaribbean ReportPrepared for IMPACT Justice by Nailah Robinson, Tutor, Faculty of Law, University of theWest Indies, Cave Hill Campus, BarbadosJanuary 2018
ContentsIntroduction . 4General Provisions . 5The Right to Bail .5Offences which are not punishable by imprisonment .8Offences which are punishable by imprisonment .8Conditions of Bail .10Police Bail .10Bail Procedure.11Sureties.12Young People .13Significant Differences Between Countries . 15Bail for Murder .15Professional Sureties .16Review of cases .18Current Issues . 19Young Persons .19Recent Amendments to Tackle Gun Violence .19International Legislation . 22United Kingdom .22Australia .22The United States .23Canada.24Conclusion. 262
CasesAdrian Nation v DPP 2010 HCV 5201, decision July 15, 2011 (unreported) . 18Bardoon v Magistrates (2nd and 3rd Courts) TT 1965 CA 59, decided April 22, 1965 (unreported) . 15Danielle St. Omer v AG Trinidad and Tobago CV 3475 of 2015, decision October 7, 2016 (unreported) . 18R.B (A Juvenile) v AG SCCrimApp 205 of 2015 decided September 1, 2016 (unreported) . 17The State v Gideon Hashiyana (cc 04/2010) [2010] NAHC 30 (29 March 2010). 14Warren Cassell v R, [High Court Criminal Appeal No. 1 of 2012] decided 25th July, 2012 . 7StatutesAntigua and Barbuda Bill. 7, 8, 10, 11, 12, 14, 16Antigua and Barbuda Constitution . 6Antigua and Barbuda Firearms Act . 14Antigua and Barbuda Magistrates Code of Procedure . 14Antigua and Barbuda Sexual Offences Act . 14Barbados Bail Act .7, 8, 9, 10, 11, 12, 13, 14, 15Barbados Constitution . 6Belize Bail Reform Act of 1999. 17Belize Constitution . 6Canada Criminal Code . 22Dominica Bail Bill. 7, 8, 10, 11, 12, 13, 15, 16Dominica Constitution . 6Dominica Firearms Act, 2011 . 15Grenada Constitution. 6Guyana Constitution . 6Guyana Criminal Law Procedure Code. 13Guyana, the Police Act Cap 16:01 . 11Jamaica Bail (Interim Provisions for Specified Offences) Act 2010 . 19Jamaica Bail Act. 7, 8, 10, 11, 13, 17Jamaica Bail Amendment Act 2010 . 19, 20Jamaica Constitution. 6Montserrat Constitution . 6Namibia Criminal Procedure Act. 15New South Wales Bail Act 1978 . 21St. Kitts & Nevis Constitution . 6St. Lucia Constitution . 6St. Lucia Criminal Code. 7, 10, 11, 12, 13, 14St. Vincent and the Grenadines Constitution . 6St. Vincent and the Grenadines Criminal Code of Procedure . 7, 15Trinidad and Tobago Bail Act .7, 8, 9, 10, 11, 12, 13, 15, 16Trinidad and Tobago Constitution . 6, 183
IntroductionAt present, only 4 of the Member States have enacted special Bail Acts. The Trinidad andTobago Act is the oldest, dating from 1994. Barbados and Jamaica followed in 1996 and 2000respectively. St. Kitts is the most recent, having enacted the legislation in 2012. Dominica andAntigua and Barbuda have tabled Bills in Parliament. 1,2 These Acts are largely based on the BailAct 1976 of the England which is still in use there today. St. Lucia does not have a special BailAct but has included equivalent provisions in its Criminal Code 2004.In the other Caribbean jurisdictions, the bail provisions are piecemeal. Although they speak ofthe discretion of judge and Magistrate to grant bail, they do not state the considerations.Instead, the common law principles are used.Countries with Bail ActsMember StateLegislationTrinidad & TobagoBail Act (Chap 4:60, 1994)BarbadosBail Act (1996-28)JamaicaBail Act 2000St. LuciaCriminal Code 2004St. Kitts & NevisBail Act 18 of 20123(Dominica)(Bail Bill introduced October 2016)(Antigua & Barbuda)(Bail Bill introduced s/THE-BAIL-BILL-2016-23-11-16.pdf3Unfortunately this Act was not available either online or in the Law Library24
Countries without Bail ActsMember StateLegislationAntigua & BarbudaMagistrates’ Code of Procedure Act, Cap 255 s62 (Bail Billintroduced 2016)BelizeCrime Control and Criminal Justice Act, Cap 102, SummaryJurisdiction (Procedure) Act, Cap 99 (2000), Indictable ProcedureAct, Police Act, Juvenile Offenders ActDominicaMagistrates Code of Procedure Act, Chap 4:20, s58 (Bail Billintroduced 2016)GrenadaCriminal Procedure Code, Cap 72 ss 47-49, Juvenile Justice Act 24of 2012GuyanaCriminal Law Procedure Code, Cap 10:01, ss81-87, GuyanaKidnapping Act (6 of 2003) (no bail for kidnapping), Firearms(Amendment Act) (no bail for certain offences), SummaryJurisdiction (Procedure) Act, Summary Jurisdiction (Appeals) Act,3:04, Criminal Law Procedure ActMontserratCriminal Procedure Code, 9 of 2010St. Vincent & theCriminal Procedure Code Cap 172, (1988)GrenadinesGeneral ProvisionsThe Right to BailMost of the countries provide in their Constitutions that a person who has been charged butwho is not tried within a reasonable time is entitled to be released either unconditionally or5
upon reasonable conditions. Some of the Constitutions expressly mention bail, and a few statethat the bail must not be unreasonable.For example, the Antigua and Barbuda Constitution at Section 5(4-6) provides(4) When a person is arrested, excessive bail shall not be required in those cases where bail is beinggranted.(5) Any person who is arrested or detaineda.for the purpose of bringing him before a court in execution of the order of a court; orb.upon reasonable suspicion of his having committed or being about to commit a criminal offenceunder any law,and who is not released shall be brought before the court within forty-eight hours after his detention and,in computing time for the purposes of this subsection, Sundays and public holidays shall be excluded.(6) If any person arrested or detained as mentioned in subsection (5) (b) of this section is not tried withina reasonable time, then, without prejudice to any further proceedings which may be brought against him,he shall be released either unconditionally or upon reasonable conditions, including in particular suchconditions as are reasonably necessary to ensure that he appears at a later date for trial or forproceedings preliminary to trial and, subject to subsection (4) of this section, such conditions may includebail.Similar provisions are found in the Barbados Constitution at section 13(3)(b), Belize 5(5),Dominica 3(5), Grenada 3(5), Guyana 139(4), Jamaica 14(3), St. Vincent and the Grenadines27(5), Montserrat 6(6), St. Lucia 3(5) and St. Kitts & Nevis 5(5).Trinidad is somewhat different. The Trinidad and Tobago Constitution provides at section 5.(1) Except as is otherwise expressly provided in this Chapter and in section 54, no law may abrogate,abridge or infringe or authorise the abrogation, abridgment or infringement of any ofthe rights and freedoms hereinbefore recognised and declared.(2) Without prejudice to subsection (1), but subject to this Chapter and to section 54, Parliament maynot—(f) deprive a person charged with a criminal offence of the right—6
(i) to be presumed innocent until proved guilty according to law, but this shall not invalidate alaw by reason only that the law imposes on any such person the burden of proving particularfacts;(ii) to a fair and public hearing by an independent and impartial tribunal; or(iii) to reasonable bail without just cause;Although these provisions can be considered a Constitutional right to bail, most of the countrieswhich have Bail Acts still expressly mention the right in the Act. Thus, the Barbados Bail Actprovides at section 4(1)4(1) Subject to this Act, a defendant shall be entitled to bail.(2) Where bail is granted, the conditions of bail shall be reasonable.This is repeated in the Jamaica Bail Act at section 4(1), the Dominica Bill at section 4(1) and theAntigua and Barbuda Bill at section 5(1).The St. Vincent and the Grenadines Criminal Code of Procedure provides at section 43 that bailshall not be excessive, and continues that the amount of bail shall not be deemed to beexcessive if it is equal to or less than the maximum fine prescribed for any offence with whichthe applicant has been charged.The Trinidad legislation makes other provisions which will be further discussed below. Thequestion of bail for capital offences will also be discussed below.A defendant who has been refused bail by a judge may reapply if there has been a change ofcircumstances, such as matters of health or delay in obtaining a trial date.In Trinidad, following a 2005 amendment, both defendant and prosecutor can appeal to Courtof Appeal in respect of judge’s decision on bail. In Jamaica, since Amendment 20 of 2010, the7
prosecutor can appeal the Resident Magistrate’s decision to grant bail. Previously, only thedefendant could appeal. Antigua and Barbuda, Dominica and St. Lucia also provide forprosecutorial appeals, but Barbados does not.Bail may also be granted after conviction has been handed down if the defendant has appealed.However, this is only granted in usual circumstances as there is no longer a presumption ofinnocence.4Offences which are not punishable by imprisonmentThe Acts generally provide that bail is available to an accused in relation to offences which arenot punishable with imprisonment except in certain cases:1. If he or she has previously absconded2. If he or she has been arrested while on bail3. If he or she needs to be protected for his or her own welfare.These provisions are found at section 5(3) of the Barbados Act, 3(3) and 4(4) of the Jamaica Act,and 6(4) of the Trinidad Act.Offences which are punishable by imprisonmentWhere the offence is punishable by imprisonment, the Acts provide that the courts mustconsider certain factors. These are described in the Trinidad Act at 6(2), the Jamaica Act at 4(1),the Barbados Act at 5(1), the Dominica Bill at 6(1) and the Antigua and Barbuda Bill at 7(1).For example, the Trinidad Act reads:4See for example the Montserrat case Warren Cassell v R, [High Court Criminal Appeal No. 1 of 2012] decided 25July, 2012.8th
6(2) Where the offence or one of the offences of which the defendant is accused in the proceedings ispunishable with imprisonment, it shall be within the discretion of the Court to deny bail to the defendantin the following circumstances:(a) where the Court is satisfied that there are substantial grounds for believing that thedefendant, if released on bail would—(i) fail to surrender to custody;(ii) commit an offence while on bail; or(iii) interfere with witnesses or otherwise obstruct the course of justice, whether inrelation to himself or any other person;(b) where the Court is satisfied that the defendant should be kept in custody for his ownprotection or, where he is a child or young person, for his own welfare;(c) where he is in custody in pursuance of the sentence of a Court or any authority acting underthe Defence Act;(d) where the Court is satisfied that it has not been practicable to obtain sufficient informationfor the purpose of taking the decisions required by this section for want of time since theinstitution of the proceedings against him;(e) where, having been released on bail in or in connection with the proceedings for the offence,he is arrested in pursuance of section 13;(f) where he is charged with an offence alleged to have been committed while he was releasedon bail; or(g) where his case is adjourned for inquiries or a report and it appears to the Court that it wouldbe impracticable to complete the inquiries or make the report without keeping him in custody.The Acts continue that in exercising its discretion, the Court may consider the following:(a) the nature and seriousness of the offence or default and the probable method of dealing with thedefendant for it;(b) the character, antecedents, associations and social ties of the defendant;(c) the defendant’s record with respect to the fulfilment of his obligations under previous grants of bail incriminal proceedings;(d) except in the case of a defendant whose case is adjourned for inquiries or a report; the strength of theevidence of his having committed the offence or having failed to surrender to custody; and9
(e) any other factor which appears to be relevant.In Barbados, the Court can also consider the length of time the defendant is likely to spend incustody if the matter is adjourned. In Jamaica, the Court can consider whether the accused is arepeat offender, but section 4(6) then provides that where this has been taken intoconsideration, a different court must hear the substantive criminal charge.Conditions of BailThe Court can set certain conditions for bail. For example, the Trinidad Act provides at section12,12. (3) A Court may further require any person applying forbail to—(a) surrender his passport to the Court;(b) inform the Court if he intends to leave the State;(c) report at specified times to any police station(4) Where it appears that the applicant for bail is unlikely to remain in Trinidad and Tobago until the timeappointed for him to surrender to custody, he may be required, before being released on bail, to givesecurity for his surrender to custody and the security may be given by him or on his behalf.Police BailIn all of the jurisdictions, senior police officers can grant bail in a similar manner as magistrates.In Barbados, the Act provides at section 6 that the officer must be of the rank of inspector orhigher, or must be the officer in charge of the station to which the accused was brought. Bailmust be considered where the defendant cannot be brought before the court within 24 hours.Bail must be granted for offences where there is no imprisonment. It may be granted to forother offences. In St. Lucia, section 594 provides that bail must be considered if the accusedcannot be brought before a Magistrate “without undue delay” but in any event within 72 hours.Otherwise the provision is
which have Bail Acts still expressly mention the right in the Act. Thus, the Barbados Bail Act provides at section 4(1) 4(1) Subject to this Act, a defendant shall be entitled to bail. (2) Where bail is granted, the conditions of bail shall be reasonable.
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