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Bail in sexual offences matters

Breaking Down the Sexual Offences Act

Today, I will discuss sections 81, 82, 83, and 84 of the Sexual Offences Act, Cap 8:03, Laws of Guyana (“the SOA”).

These sections regulate factors a court must consider in deciding whether to grant bail (section 81) and conditions that may accompany any grant of bail (section 83). Finally, section 84 of the Act dictates that if an accused is granted bail on a sexual offence charge, the prosecutor must inform the accused of this, and any conditions imposed on the grant of bail.

Can and should bail be granted in sexual offences matters?

The simple answer is yes. There are very few offences for which a person cannot be granted bail. These offences include treason and terrorism. For most other offences, even murder, bail may be granted.

Notably, a person who is not granted bail is put on remand. Contrary to popular belief, the purpose of remand is not to punish but to ensure that a person accused of an offence will attend his trial.

This legal reality flows from two important constitutionally protected fundamental rights: i) the right to liberty and ii) the right to be presumed innocent until proven guilty.

Since remand deprives a person of their liberty, courts will not deny bail unless there is a good reason. It is not enough that a person is accused of a criminal offence, even of a sexual nature. 

Section 81 – Factors to be considered when deciding whether to grant bail

I already stated that the primary consideration when deciding whether to grant bail is whether the accused will appeal for his trial. Sexual offences matters, however, attract additional considerations which courts are bound by statute to consider.

These include i) the need to secure the health, safety and well-being of the complainant or any witnesses (a court must consider if an accused is likely to harass, harm, intimidate or otherwise interfere with the complainant or a witness); ii) the need to protect any child affected by the offence or the decision on bail (this includes a child of an accused who may suffer if the accused is not granted bail), and any hardship that may be caused to the accused or his/her family members of bail is not granted.

The court will also consider the criminal record of the accused. Notably, while the court must generally consider the health and well-being of the complainant and any witnesses, the statute specifically calls on the courts to consider if there are: i) reasons to believe the accused would not appear for his trial or surrender to custody if found guilty, ii) would commit another offence while on bail, or iii) would otherwise obstruct the course of justice in any way.

The courts are also given broad discretion to consider “any other matters which may be relevant to the case in question.”

These factors consider both the complainant, the prosecution’s case, and the accused, allowing the court to take an approach that is fair to all parties.

Section 82 – Special rules for certain sexual offences

Section 82 sets out special rules mandating that an accused be remanded if certain circumstances exist.

Suppose a person accused of a new sexual offence involving penetration has a prior conviction for a sexual offence or is charged with a sexual offence with a child under sections 11-13 and 16, 18, or 21. In that case, bail must be denied unless the accused can show the court why bail should be granted.

This section reverses the general rule that the most crucial consideration is whether the accused will appear for trial or surrender to custody if found guilty. The Act dictates that if the accused has a particular criminal record or is charged with a sexual offence involving children, bail must be denied unless the accused shows the court “just cause” for granting bail.

Just cause may include that: i) the accused is not a flight risk; ii) the accused is not a threat to the public, including the complainant or any witnesses; iii) and/or the accused is not likely to commit an offence while on bail or interfere with the administration of justice.

These rules underscore the view that despite the presumption of innocence, it will be presumed that persons with a prior conviction of a sexual offence should be kept in custody pending trial. Additionally, it shows that the state takes a particularly hard stance regarding sexual offences against children and that no effort will be spared to protect children from an accused during the criminal process.

These rules, therefore, show that though there is a bid to treat all parties fairly in sexual offence matters, the state will prioritise the protection of children above the liberty of an accused if the circumstances warrant this.

Section 83 –   Conditions of bail

If a court, after considering any of the factors mentioned above, decides that bail should be granted, the statute provides various conditions that may be applied to: i) protect the integrity of the trial; (ii) protect the witness(es) or complainant(s); and or to ensure that the accused is present for the trial or surrenders to custody if found guilty.

These conditions include that: i) the accused may not communicate, directly or indirectly, with the complainant, witnesses, or any other person, including the prosecutor; ii) the accused may not harass or molest the complainant or any child; iii) the accused may not be in a place where a person lives, works, or frequents; and iv) the accused may not be on or around premises or an area where a specified person studies. These are not all the conditions stated in the Act, and the conditions stated in the SOA are not the only conditions a court may impose. A court may impose any reasonable conditions found necessary and reasonable.

If a police officer finds that an accused has failed to comply with any of these conditions, he may arrest the accused without a warrant (see section 83 (2) of the SOA). Further, where a court finds evidence that an accused has violated any condition of his or her bail, the court may order that the accused be arrested, cancel the bail, and remand the accused. 

Section 84 –Complainant to be informed of accused granted bail

Finally, section 84 of the SOA requires the prosecution to inform the complainant if an accused is granted bail and if any conditions were imposed on the grant of bail.

This is done to ensure that the complainant is not surprised by this information and to allow the complainant to report any breach by the accused of the bail conditions.

These sections follow the general trend of the SOA and balance the interests of the accused and the complainant, ensuring a fair criminal process for both.

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