To bail or not to bail?


The issue of the grant or denial of bail to certain accused offenders has recently re-entered the public discourse. This was generated to a significant extent by the admission of the Prime Minister at a media luncheon last Friday that he had been “hit for six” on learning that a murder accused had been granted bail, as he wondered aloud at the likely reaction of a relative of the victim encountering the accused in the supermarket or elsewhere in public. Earlier, we had heard calls from a few members of the Criminal Bar for there to be some consistency and even certainty in the principles governing the grant of bail for drugs offences by magistrates. 
The Prime Minister was immediately taken to task for his comments that were described by one attorney as being “out of touch with the realities of the delivery of justice in the country”. 
We are not sure what this criticism means. Was the Prime Minister making a legal point that the law does not permit the grant of bail to murder accused so that the judicial officer had acted inappropriately or was he simply asserting a sentiment felt by many citizens that there should be no legal possibility of this occurrence? 
If the first, he is plainly incorrect since local law, unlike some others, does not expressly prohibit the grant of bail to one accused of murder, even though one relevant consideration in that determination is “the nature and seriousness of the offence or default…” 
The second, however, is more excusable, since it merely amounts to an assertion that were he the officer, he would not have granted bail to such an accused, a sentiment that should resonate with more than a few Barbadians. In other words, that he would have exercised his discretion differently. Similar sentiments were expressed in New South Wales, Australia, two years ago when an accused wife killer was legally granted bail. One anti-violence campaigner described it as a “slap in the face” to murder victims and their families.
It may be precisely this general sentiment that lies at the heart of the criticism of the inconsistent bail rulings levelled by some members of the Criminal Bar. The cry for certainty in a circumstance where decisions are made on the basis of personal judgement appears misplaced and would amount to a constraint on the judicial officer, thereby removing the discretionary nature of his or her decision and converting bail decisions into a matter of precedent.
On the occasion on which he spoke, the Prime Minister promised to consult with the Attorney General on the matter, but he must have forgotten that the Honourable Attorney General had in April publicly dismissed any suggestion that the Bail Act should be amended so that those charged with murder should have no entitlement to bail in the High Court, “Rather”, he had declared, “what needs to be done is that the court process must be sped up”.
Indeed, the notorious relative sloth of the local court process is no mean contributor to the grant of bail in these cases where, according to the Bail Act, another relevant consideration is “the length of time the defendant would spend in custody if the court were to remand the defendant”. 
The decision as to whether or not bail should be granted on a criminal charge locally involves a collision between the presumption of innocence, the need to ensure the presence of the accused at the trial and the constitutional right of the accused to be afforded a hearing before an impartial tribunal within a reasonable time.
It is within these bounds and those considerations expressed in the Act only that the decision must be made.


Barbados Advocate

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