Bail

• Author: George Belnavis
• Profession: Attorney-at-law of over 30 years practice at both the Public and Private Bar and is currently Senior Tutor II at the Norman Manley Law School, Kingston, where he has taught for nearly 20 years
• Pages: 15-35

Bail / 15

Bail may be defined as the release by the Police, Magistrates’ Courts, High

Court or Court of Appeal of a person held in legal custody while awaiting

trial or appealing against a criminal conviction. Conditions may be imposed

on a person released on bail.

A person granted bail undertakes to pay a specified sum to the court if

he fails to appear on the date set by the court. This is known as bail in one’s

own recognizance. Often the court also requires guarantors (known as

sureties) to undertake to produce the accused or to forfeit the sum fixed by

the court if they fail to do so. In these circumstances, the bailed person is,

in theory, released into the custody of the sureties. Judges have wide

discretionary powers as to whether or not bail should be granted, and for

what sum. Normally, an accused is granted bail unless it is likely that he

will abscond, or interfere with witnesses, or unless he is accused of murder,

attempted murder, manslaughter, rape or attempted rape, or has a previous

conviction for any such an offence. The accused, and the prosecution, in

limited circumstances, may appeal a decision on bail.1

At common law, the grant of bail is discretionary. The discretion must

be exercised judicially. Bail is not to be withheld merely as a punishment

and on an application for bail, the following principles must be considered:

1. The nature of the accusation;

2. The nature of the evidence in support of the accusation;

3. The severity of the punishment which conviction will entail; and

4. Whether the sureties are independent or indemnified by the accused.

(See Archbold 38th Edition 1973 Sweet and Maxwell paragraph 292

at page 87).

The Bahamas, Barbados, Jamaica, and Trinidad & Tobago all have Bail

Acts which are fundamentally based on the English Bail Act 1976. In

most of the other territories, the legislation dealing with the bail is not

2

Bail

15

16 / Criminal Practice and Procedure

comprehensive and is basically similar in content. As Seetahal points out,

‘they merely set out the outer limits for the grant of bail and in some cases

the procedure. They allude to the discretion of the Judge or Magistrate to

grant bail, but do not state the circumstances in which this discretion is to

be granted, unlike the Bail Acts. The exercise of this discretion is thus

determined by the Common Law.’2

Granting of Bail

The Police, a Magistrate, Justice of the Peace or a High Court Judge may

grant bail.

The Police

Antigua & Barbuda and St Christopher & Nevis

The statutory provisions in these two territories are identical. In Antigua

& Barbuda the provisions are contained in section 37 of the Magistrate’s

Code of Procedure Act CAP. 255:

A person taken into custody for any offence without a warrant shall be

brought before a Magistrate as soon as practicable after he is so taken

into custody and if it is not, or will not be practicable to bring him

before a Magistrate within 24 hours after he has been taken into custody,

any member of the Police Force in charge of any police station shall

inquire into the case, and except where the offence appears to him to

be of a serious nature, shall discharge the prisoner upon his entering

into a recognizance with or without sureties for a reasonable amount

to appear before some Magistrate at the time and place mentioned in

the Recognizance.3

In St Christopher & Nevis, the provisions are found in Section 42 of the

Magistrate’s Code of Procedure Act CAP. 46.

The Bahamas

A Peace Officer making an arrest without a warrant, in exercise of any

powers conferred upon him by the Penal Code, the Police Act or any other

law for the time being in force, shall, without unnecessary delay and not

later than 48 hours after such arrest, take or send the person arrested before

a Magistrate appointed to preside in a Magistrate’s Court having jurisdiction

in the case unless the person arrested be earlier released on bail or by a