17 April, 2010
Bail: We are looking at the second of our fundamental rights in
Anguilla, the right to personal liberty. The right to bail when we are in custody is properly to be considered in any discussion on the right to personal liberty. When we have been arrested and brought before the Magistrate, we shall not have enjoyed this right if the Magistrate does not consider the question whether we ought to be granted bail until the case against us is made ready. Sometimes, it can take weeks or months before the police are ready to present the evidence against us to the court. It is considered unjust for us to remain in custody until the police get their act together and decide to bring forward the case before the court. Once we are convicted by the court, we can no longer claim to have any right to personal liberty.
Until we are proved guilty, it must be that only in exceptional cases will the Magistrate order us to be confined pending the trial. For centuries the proper test of whether bail should be granted or refused has been whether the defendant will appear for trial. Bail may never be withheld merely as punishment. This principle is as applicable now as it was centuries ago. So, it is at the early stage when an arrested person is brought before the Magistrate for the first time after arrest that the question of bail arises. The Magistrate must consider the question even if the person in custody is too poor or too unaware of his or her right to ask for bail.
The rules for giving an accused person in custody bail are contained in the Magistrate’s Code of Procedure Act. Section 67 states that a person charged with an offence punishable with fine or imprisonment for a term not exceeding two years is entitled to be admitted to bail. That means that the police are not permitted, except in the most exceptional case that I can hardly imagine now, to object to bail. If fact, in such minor crimes they usually grant bail at the police station and do not even bother to bring the accused to court for him or her to apply to the Magistrate for bail.
Where the offence is more serious, the Magistrate may grant bail depending, for example, on whether the Magistrate considers that the offender might flee from the jurisdiction, or might commit another offence, or might interfere with the witnesses.
In the two cases of murder and treason the Magistrate may not grant bail. Only the judge can approve granting bail in such a case. The procedure is for the judge to hear the application for bail, and if the judge considers that it is appropriate for the person charged with murder or treason to be bailed, then the judge sends the matter to the Magistrate to admit the person to bail. The judge does not set the conditions for bail himself or herself. The reason for this is that the bail may have to be policed, and the accused brought back to court from time to time to have bail renewed. It is more appropriate for the Magistrate’s Court to be the place where all this activity is conducted.
The circumstances in which a Commonwealth Caribbean court may today refuse bail are well established by the cases. The right to personal liberty, although not absolute, is a right which is at the heart of all political systems that purport to abide by the rule of law and protect the individual against arbitrary detention. The only recognised grounds for refusing bail are (i) the risk of the defendant absconding bail; (ii) the risk of the defendant interfering with the course of justice; (iii) the risk of the defendant reoffending while out on bail; (iv) preserving public order; and (v) if detention is necessary to protect the defendant. We have a useful judgment from George-Creque J on this very provision in the law of