AuthorGeorge Belnavis
ProfessionAttorney-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
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
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

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