Very recently, an eighteen-year-old boy had the temerity to exercise his right to freedom of expression and ‘flipped the bird‘ or ‘gave the finger‘ to the presidential motorcade which was passing. He was promptly arrested without a warrant (hopefully by a member of the Police Force who saw the commission of this act) for the summary offence of making use of an obscene gesture. The offence is punishable upon conviction by a fine with an alternative of imprisonment.
When the charge was called in Magistrates’ Court, the youngster pleaded not guilty, whereupon the presiding magistrate refused to grant bail, and remanded him to prison until the next trial date one week later. At the next trial date, the prosecutor sought to amend the charge, the youngster again pleaded not guilty, and the magistrate again remanded him to prison until the next trial date. That exercise of discretion by the magistrate would have had the result that an eighteen-year-old boy was kept in prison for two weeks before even being tried, let alone convicted, on a trivial charge which, if proved, would have resulted in only a fine being imposed. Fortunately, the High Court intervened and ordered the release of the boy.
One is left to wonder whether this magistrate has never flipped the bird to a person with whom she may have at some point in her life come into conflict. She may have children or may have children some day. Hopefully they will never in the exuberance of youth flip the bird and have to appear in court before one such as herself. If they have that misfortune, she would and should be outraged by any exercise of discretion to imprison her children without bail for such a trivial offence.
The exercise of the discretion by the magistrate necessitates in this article a discussion of the principles upon which bail ought to be granted, taking into consideration the need to ensure that an accused person will appear to face justice at his trial, and the conflicting need to protect the individual right to liberty guaranteed under the constitution. Several factors should influence a magistrate in the exercise of her discretion to grant bail, including the likelihood of the accused absconding before trial, the likelihood of the accused committing further offences while on bail, and the likelihood of the accused interfering with witnesses while on bail. In any ordinary case, bail should be granted, and it is for the prosecution to make a clear and positive case for refusal of bail.
An important factor to be considered is the gravity and nature of the charge; bail should not easily be refused where the offence is minor. Common sense suggests that bail should not be refused where the penalty upon conviction is no more than a fine. Common sense suggests that, in such a case, the bail fixed should be no more in any event than the amount of the fine which would be levied. Fortunately, our High Court is not without a share of that common sense. As long ago as 1994, V Persaud, J sitting in the High Court stated shortly that “a convicted defendant should not be remanded to custody pending sentence when that sentence would be a non-custodial one.
He certainly should not be remanded at any stage when the offence itself does not provide for a custodial sentence. Too often a defendant is sent down for ‘a taste of life in prison’ and on his return to court sent home when the magistrate is assured that incarceration had a ‘salutary effect’ on him… As the law stands, bail is neither a matter of levity or largesse… If there is any mode short of confinement which would in all cases ensure the attendance of the accused to answer the accusation, it would not be justifiable to submit him to that indignity (of incarceration), since the effect is to subject him to the punishment of a guilty person before it has yet been determined that he has committed any crime.”
Magistrates should take heed not to lightly interfere with the pre-trial freedom of accused persons. Members of the public should take heed: keep your birds caged.