Attorney General and Minister of Legal Affairs Anil Nandlall on Thursday tabled a bail reform bill that once passed would require police to consider the granting of bail within 24 hours of taking persons into custody for non-serious offences.
According to its explanatory memorandum, the bill, aimed at reducing overcrowding in the prisons, will ensure the efficient functioning of the criminal justice system while recognising that a person is innocent until proven guilty and has a right to personal liberty.
The bill establishes that there is a right to bail and sets out clear circumstances where bail may be granted.
It has five parts and will apply to offences committed in Guyana or elsewhere. However, it does not apply to juveniles and any offence punishable by death. Bail for a juvenile is provided by the Juvenile Justice Act of 2018, while offences punishable by death are governed by the Constitution and Criminal Law (Procedure) Act.
Clause 4 (1) of the bill states “Where a person is taken into custody for an offence without a warrant, a police officer, if it will not be practicable to bring the person before a magistrate within twenty-four hours after the person is taken into custody, shall inquire into the case and, (a) if the offence is not punishable with imprisonment, shall grant the person bail with every convenient speed; and (b) if the office is punishable with imprisonment, may, unless the offence is a serious offence, grant the person bail as soon as practicable.”
“Serious offence” is defined as any offence in which the maximum penalty is death or imprisonment for a term exceeding five years.
Bail granted in both instances may be with or without sureties subject to a duty to appear before a magistrate at a time and place appointed by an officer, the explanatory memorandum states. It adds that where a person is not released from bail, they shall be brought before a court within 72 hours of their detention. However, the police would also have the ability to seek an extension of that detention period. Nevertheless, if the police cannot bring a charge against a detained person within a reasonable time, the bills says that person is entitled to be released from custody either unconditionally or upon reasonable conditions.
It also gives the court a responsibility to hear all bail applications without undue delay.
Part II of the bill has five clauses that set out the provisions regarding the right to bail. It also states that every person charged with an offence is entitled to bail and that conditions should be reasonable. This section also provides that every defendant may make an application for bail on each occasion that they appear in court.
Clause 7 of Part II stipulates the circumstances in which bail may be refused “…where the court is satisfied that there is substantial ground for believing that the defendant, if released on bail, would (a) not attend trial, (b) interfere with evidence or witnesses, or otherwise obstruct the course of justice, (c) commit an offence (not punishable by fine) while on bail or (d) be at risk of harm against which he or she would be inadequately protected.”
“Moreover, bail may be denied where the defendant should be kept in custody for his or her own protection or the preservation of public order,” the explanatory memorandum adds.
Additionally, the bill outlines that bail may also be refused when the defendant is charged or will likely be charged with a serious offence. It adds that the court shall take into account the interests of society against the right of the defendant to his or her right to liberty when considering bail. The onus is on the judge or magistrate, based on the evidence presented, to show why bail should not be granted.
Further, Part II of the bill provides that when dealing with the case of a defendant charged with an offence under the Domestic Violence Act, or Sexual Offences Act, the court’s paramount consideration with respect to granting bail shall be the need to protect the victim of the alleged offence.
Part III speaks to the conditions for bail. This section also empowers the court to vary or revoke any conditions of bail.
Meanwhile, Part IV of the bill speaks to bail procedures. It mandates the police and court to have a written record of all bail decisions which must also be supplied to the defendant. Where bail is refused, the magistrate shall inform the defendant of their right to appeal the decision or have it reviewed.
Part IV also indicates that the right to appeal is granted despite the nature of the offence.
Part V of the bill repeals section 20 of the Police Act, and Section 71 of the Summary Jurisdiction (Procedure) Act, which deal with bail for persons arrested without a warrant. It also deletes section 17(2) and section 26(1)(e) of the Court of Appeal Act Cap 3:01 which addresses the power of the court to admit an appellant to bail pending the determination of their appeal and the power of a judge of the court to admit an appellant to bail.
Additionally, it also deletes section 12(4) and 16(2) which addresses bail pending appeal and the apprehension of an appellant who had been released from custody on bail upon abandonment of an appeal.
