Dear Editor,
The issue of magistrates in the granting of bail to persons appearing before them has been in the public domain for some time now. How should the exercise of the power given to magistrates be exercised? What are the criteria that a magistrate should examine when deciding to grant or not to grant bail? Are the recent concerns raised that magistrates in granting bail to persons who were alleged to be in possession of firearms and in another case where an accused person facing more than one rape charges justified?
The duty of a magistrate as to the admitting a defendant to bail is judicial and not merely ministerial, and therefore an action will not lie against the magistrate without proof of malice for refusing to admit to bail a person charged with an offence and entitled to be admitted to bail (R v Badger 4 Q.B 468 and Linford v Fitzroy 13 Q.B 240). The overall test for the magistrate to consider is whether the defendant will appear in court for his trial, if bail is granted (R v Robinson (1854) 23 LJQB 286). However other considerations and factors can guide a magistrate along this road. A person when charged by the police or by a private criminal prosecution will firstly appear before a magistrate so that the charge could be read. If the charge is a summary one then the person will be asked to plead and the response will generally be guilty or not guilty. If the charge is an indictable one then the charge is read and where in some instances a charge can be reduced to a matter whereby the magistrate can conclude the matter without it having to go before a jury in the High Court, an application can be made by the prosecution or the defendant for the matter to be taken summarily under the Administration of Justice Act or some other legislation. The magistrate can decide to take the matter summarily and then the charge is read to the accused and he is asked to indicate whether he is guilty or not guilty. Where a matter is to proceed as an indictable offence then the charge is read and is adjourned for a date for commencement or for report as the police may not have completed their investigation or file.
However when a person pleads not guilty the matter is adjourned either for report or a date is fixed for trial. In some instances when a person pleads guilty, the matter can be adjourned for compensation to be made or for a report or some other reason. Regardless of what occurs at the first hearing, the magistrate has to decide whether to place the defendant on bail or remand him to prison, fix a date when the matter will be called back and then on that date to again determine whether to grant bail or further remand the defendant. There are some instances where a magistrate may wish to give to a defendant a short sharp shock for him to see what incarceration feels like if that defendant does not change his ways. As a former Chief Magistrate, I have done this and even an overnight remand had made a difference in several matters. There are some offences where bail cannot be granted and as such the question of bail cannot be considered. In deciding to grant bail, the magistrate always has to bear in mind the constitutional protection of the defendant that a person accused of a criminal offence is always presumed to be innocent. Article 144(2) of the Constitution of the Co-Operative Republic of Guyana states as follows “It shall be the duty of the court to ascertain the truth in every case provided that every person who is charged with a criminal offence – (a) shall be presumed to be innocent until he is proved or has pleaded guilty.”
The magistrate in determining whether to grant bail has to also consider the following – (a) whether the defendant has previous convictions and more importantly whether they are of the similar nature of the offence which is currently before the court, (b) whether the defendant has any pending matters before the Court or any other Court and, if so, whether they are of a similar nature as to the current matter that is being considered, (c) the circumstances of the offence, and whether any violence was used in the commission of the offence, or any other aggravated matter, that the defendant may have done in the commission of the offence, (d) the prevalence of the offence in the jurisdiction of the matter before the court, (e) whether there is any objection to bail by the police. The objection may be, in matters of assault or wounding that the investigation is not completed, the injuries suffered by a victim are serious and that the victim may die, or that in a robbery or theft, items were found in the possession of the defendant, or, other reasons that the police may wish to advance for the consideration of the magistrate. As such the matter will be adjourned to get a medical or progress report, (f) that the defendant may interfere or threaten a witness or witnesses, (f) that the defendant may not attend court if bail is granted and is a flight risk, (g) that the defendant does not have a fixed place of residence, (h) that the defendant has given a different name from what he is known by, and (i), the severity of the punishment if the defendant is found guilty.
A magistrate may grant self-bail to a defendant and as is stated in the Summary Procedure Act – “suffer the defendant to go at large.” The magistrate in granting bail has to determine the amount of bail and whether other conditions, such as the defendant entering into a recognizance with or without a surety conditioned for his appearance in court at the next sitting, should be applied. The magistrate may also impose other conditions as the justice of the case requires and these may be that the defendant lodge his passport with the court or the police, report daily or on such days to a police station, have no contact with the victim or such other reasonable conditions that the magistrate may deem fit and proper. The law as it stands at the moment gives to the magistrate the discretion to determine the amount of money that the defendant has to lodge with the court in order to secure bail and whether there is a need for the defendant to find a surety or sureties to secure his attendance in court. The defendant can lodge with the court that sum or a transport or title if approved and there is no mortgage or lien on it. In a number of cases where a person has an old transport or title, that person will have to get a current valuation to ensure that the property lodged has the value, in the event that the bail is later escheated, and the property has to be put up for sale.
The sum of bail set by the magistrate should not be excessive in the circumstances and if so then an application can be made to a judge of the High Court to have this sum reduced on the ground that the bail set by the magistrate was unreasonable and tantamount to a denial of bail. If bail is refused by a magistrate, a defendant may also approach the High Court to review the refusal of the magistrate to grant bail and a Judge in this review can either grant bail or refuse the application. As a consequence the magistrate should record either on the case jacket or in his minute book the reason(s) for the refusal to grant bail so that the Judge in the review can ascertain that the reason for the refusal was correct and within the law.
The question as to the prevalence of the offence in the jurisdiction or city where the offence took place cannot be ignored. At the moment there seems to be an increase in offences where persons are robbed by perpetrators on motor-cycles or bicycles; also the use of fire-arms in the commission of these crimes is of concern to the public at large. Let us also not forget the escalating rise in spousal abuse! What is a magistrate to do in these circumstances? The magistrate lives and is a member of the society and would be aware of what is happening and the concerns and revulsion of society to crimes that make the same society unsafe, afraid and insecure. Should the magistrate turn a blind eye, forget all the principles that should guide him and just refuse to grant bail? I think not as if that is done then the magistrate would be in breach of the oath he took and would not be doing justice. Justice must not only be done to a victim but also to an accused person. I will tell you another thing that I also did when I was a magistrate and a defendant appeared before me with an offence which was prevalent or which was angering society. There were also cases of robbery committed on foreigners and the defendant and his lawyer knew that if the matter was dragged out, then the victim would leave the country and would not be able to give evidence. (That situation is now cured to a great extent as the law now provides for the evidence to be taken virtually.) I would refuse to grant bail, if the matter was indictable and taken summary then I ensured that police prepared and served their witness statements within the minimum time. If they failed to do so bail would be granted. If they did, I would fix an early date for trial and ensured that the matter was completed expeditiously. Sometimes counsel wanted a long date for trial and hoped that if this is given then bail would be granted. I did not fall into this ploy much to the annoyance of some lawyers. I thought and still do that justice was done as there was a speedy trial and consideration was given to the prevalence of the offence.
As the law stands at the moment, it is the magistrates who have the discretion to grant or not to grant bail and we must accept that in the exercise of this function that they will act within the law unless the contrary is proved. We may not agree how that discretion may have been exercised but must show respect to the magistrates. At the end of the day, the police have to ensure that their file is completed as quickly as possible so that they can present their case for trial. The court has to ensure that postponements are justified and the time of witnesses is not wasted when they come to court to give evidence as they may get frustrated and allow the matter to be dismissed by failing to attend court to give their evidence. The judiciary must respect the time of persons who come and appear before them and they should set out to manage their time in a responsible manner.
Sincerely,
K.A. Juman-Yassin S.C.
Attorney-at-Law
