Former Chief Magistrate and attorney-at-law K.A. Juman-Yassin S.C. says that there are many factors which a court has to consider in determining whether or not a person is granted their pre-trial liberty.
What is sure he said, however, is that, as the law currently stands, it is the magistrate who has the discretion to grant bail and that it must be accepted that in the exercise of that function, they will act within the confines of the law, unless the contrary is proved.
Just recently, the decision of a city magistrate to grant bail to four men charged with unlawful possession of guns and ammunition, came in for sharp criticism from Attorney General Anil Nandlall SC, who said it sent the wrong message.
Principal Magistrate Sherdel Isaacs-Marcus granted bail to the quartet on the condition that they lodge their passports with the court and further ordered them to report to the Brickdam Police Station.
In a statement issued on his Facebook page, Nandlall said among other things that the magistrate’s decision to grant the men bail on their first court appearance had “rightfully” evoked “grave concern and criticism” among citizens.
He then suggested that the state may soon have to “resort” to the “extreme” measure of subjecting some of the decisions handed down by magistrates to judicial review in the High Court and lodge complaints with the Judicial Service Commission (JSC).
In his letter, Yassin espoused that in deciding whether or not to grant bail, a magistrate always has to bear in mind the constitutional protection of the defendant to wit that a person accused of a criminal offence is always to be presumed innocent until proven guilty; even as he noted that “justice must not only be done to a victim but also to an accused person.”
In making this point he reminded that Article 144 (2) of the Constitution provides that “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.”
Referencing a number of case law precedents, Yassin said that the duty of a magistrate in 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.
In accordance with case law, the overall test for the magistrate to consider he said, is whether the defendant will appear in court for his trial were bail to be granted, but noted that there are other considerations which guide a magistrate along this road.
Regardless of what occurs at the first hearing of a case, Yassin said that 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.
Short sharp shock
There are some instances he said, where a magistrate may wish to give to a defendant what he described as “a short sharp shock” to see what incarceration feels like if that defendant does not change his ways.
The former chief magistrate said that he has done that and found that even an overnight remand had made a difference in several matters; but in deciding to grant bail, the magistrate he said, always has to bear Article 144 (2) in mind.
Yassin then goes on to list a range of other factors which he said may be considered as the particular case warrants—(a) whether the defendant has previous convictions and more importantly whether they are of the similar nature, (b) whether the defendant also has pending matters of a similar nature, (c) the circumstances of the offence, and whether any violence was used, or any other aggravated matter occurred in the commission of the offence, (d) the prevalence of the offence and (e) whether there is any objection to bail by the police.
The objection he said, 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 he said that the matter would be adjourned for a medical or progress report, (f) that the defendant may interfere or threaten a witness or witnesses, (g) that the defendant may not attend court if bail is granted and is a flight risk, (h) that the defendant does not have a fixed place of residence, (i) that the defendant has given a different name from what he is known by, and (j), the severity of the punishment if the defendant is found guilty.
He said that the magistrate may also impose other conditions as the case requires; such that the defendant lodge his passport with the court or police, report daily or when ordered to, to a police station, have no contact with the complainant or such other reasonable conditions that the magistrate may deem fit and proper.
“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,” Yassin declared.
It was on this point that he said “justice must not only be done to a victim but also to an accused person.”
He then shared another tactic he said he used as a magistrate, when confronted with an offence which was prevalent or which was angering society. He said that there were 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.
Yassin said that he would refuse bail, if the matter was indictable and taken summarily then he ensured that police prepared and served their witness statements within the minimum time. If they failed to do so bail he said would be granted.
If they did, he said he would then fix an early date for trial and ensure that the matter was completed expeditiously, while stating that sometimes counsel wanted a long date for trial and hoped that if given bail would be granted.
Yassin said that he did not fall into that 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,” he said.
Yassin said that 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,” he added.
