AN EXAMINATION OF

THE

BAIL ACT 2000

Presented by : The Hon. Mr. Justice Hibbert

at a

JUDGES’ SEMINAR

held at

GRAND LIDO BRACO, TRELAWNY

between

March 9 and 11, 2001

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 AN EXAMINATION OF THE BAIL ACT 2000

Whether or not bail should be granted has always been a vexed

question in Jamaica as indeed in other common law jurisdictions. As bail
applications depend so much upon their particular facts and are rarely
the subject matter of a report an attempt was made to co-relate published
material in order to extract a set of principles which could provide a
guide in the consideration of bail applications. Alec Samuels in his
article "Bail Principles" published in The New Law Journal dated
September 8, 1966 observed:

"Any one or more of a number of factors may assume

a greater or lesser importance in any particular case, and the
following factors appear to have been considered by the
judges as being of possible relevance:

the likelihood of appearance at the trial; the nature of the

accusation; the nature of the supporting evidence; the
likelihood of conviction; the likely sentence upon conviction;
the previous record of the accused; the likelihood of further
offences if bail is granted; the possibility of interference with
potential witnesses and jurors; any previous failure to
answer to bail, and the substance and reliability of any
persons offered as sureties ".

These factors identified by Alec Samuels are those which have

been mostly considered in deciding whether or not bail should be
granted. In Jamaica, it was, however, believed that the exercise of the
discretion to grant bail lacked uniformity hence Parliament enacted the

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Bail Act. In the Memorandum of Objects and Reasons presented by the
Minister of National Security and Justice is the following:

"Bail is presently administered in accordance with common

law principles. Provisions are also contained in various Acts
whereby Judges of Appeal, Resident Magistrates, Justices of the
Peace and police officers are empowered to grant bail in
accordance with those provisions.

The existing right to bail is subject to the discretion of the

relevant authorities. This discretion has not been uniformly
exercised thus resulting in an appearance of arbitrariness.

Recognizing a correlation between a right to bail and the

presumption of innocence, the government decided to enact
legislation which would preserve the common law rules regarding
bail and make other necessary provisions.

The purpose of this paper is to examine the provisions of the Act

and to make comments where necessary. Section 2 of the Act is the
definition section. In this section it is stated:

"conviction includes –

(a) a finding of guilt;

(b) a finding that a person is not guilty by reason of

insanity;

(b) a conviction of an offence for which an order is made

placing the defendant on probation or discharging him
absolutely or conditionally,

and "convicted" shall be construed accordingly;

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 The definition in paragraph (b)seems to run contrary to section
25(2)of the Criminal Justice (Administration) Act which provides that
where a person is found to have committed an offence but was not at the
time of commission sane, a special verdict should be returned to the
effect that the accused was guilty but insane.

Section 3 is perhaps the most important section of the Act. It

states:

3. - (1) Subject to the provisions of this Act, every person who

is charged with an offence shall be entitled to be granted bail
by a Court, a Justice of the Peace or a police officer, as the
case may require.

(2) A person who is charged with an offence shall not

be held in custody for longer than twenty-four hours without
the question of bail being considered.

(3) Subject to section 4 (4), bail shall be granted to a

defendant who is charged with an offence which is not
punishable with imprisonment.

(4) A person charged with murder, treason or treason

felony may be granted bail only by a Resident Magistrate or
a Judge.

(5) Nothing in this Act shall preclude an application for

bail on each occasion that defendant appears before a Court
in relation to the relevant offence.

This section confers on every accused person an entitlement to

bail. It has long been asserted that this right to bail existed but this was
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seldom recognized in practice. An accused person or his legal
representative was in most cases required to satisfy the Court, Justice of
the Peace or Police that he is a fit candidate for bail. The implications of
this section are that all the accused person or his legal representative
need to do is to apply for bail and it would then be incumbent on the
prosecutor or police to provide grounds for the refusal of bail. This
section also prohibits the undue detention of persons without bail being
considered, the mandatory grant of bail in certain circumstances and
sanctions repeated applications for bail. Also, worthy of note in this
section is that bail may only be granted to a person charged with murder,
or treason felony by a Resident Magistrate or a Judge.

As is quite often in legislation where rights are conferred by one

section, another section limits the exercise of these rights. The Bail Act
is no exception and section 4 provides circumstances in which bail may
be denied. It states:

4. - (1)where the offence or one of the offences in relation to which

the defendant is charged or convicted is punishable with
imprisonment, bail may be denied to that defendant in the
following circumstances -

(a) The Court, a Justice of the Peace or police officer is

satisfied that there are substantial grounds for
believing that the defendant, if released on bail would

(i) fail to surrender to custody;

(ii) commit an offence while on bail; or

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 (iii) interfere with witnesses or otherwise
obstruct the course of justice, whether in
relation to himself or any other person;

(b) the defendant is in custody in pursuance of the sentence

of a Court or any authority acting under the Defence
Act;

(c) the Court is satisfied that it has not been practicable to

obtain sufficient information for the purpose of taking
the decisions required by this section for want of time
since the institution of the proceedings against the
defendant;

(d) the defendant, having been released on bail in or in

connection with the proceedings for the offence, is
arrested in pursuance of section 14 (absconding by
person released on bail);

(e) the defendant is charged with an offence alleged to

have been committed while he was released on bail;

(f) the defendant's case is adjourned for inquiries or a

report and it appears to the Court that it would be
impracticable to complete the inquiries or make the
report without keeping the defendant in custody.

(2) In deciding whether or not any of the circumstances

specified in subsection (1) (a) exists in relation to any defendant,
the Court, a Justice of the Peace or police officer shall take into
account -

(a) the nature and seriousness of the offence;

(b) the defendant's character, antecedents, association and

community ties;
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 ( c) the defendant's record with regard to the fulfillments of
his obligations under previous grants of bail;

(c) except in the case of a defendant whose case is

adjourned for inquiries or a report, the strength of the
evidence of his having committed the offence or having
failed to surrender to custody;

(e) whether the defendant is a repeat offender, that is to

say, a person who has been convicted on three previous
occasions for offences which are punishable with
imprisonment; or

(f) any other factor which appears to be relevant including

defendant's health profile.

(3) Bail may be denied to a defendant who is charged with or

convicted of an offence punishable with imprisonment if the Court,
a Justice of the Peace or police officer is satisfied that the
defendant should be kept in custody for his own protection or,
where he is a child or young person, for his own welfare.

(4) Bail may be denied to a defendant in relation to an offence

which is not punishable with imprisonment if -

(a) it appears to the Court, a Justice of the Peace or police

officer that, having been previously granted bail in
criminal proceedings, the defendant has failed to
surrender to custody in accordance with his obligations
under the grant of bail and there are reasonable
grounds for believing that, in view of that failure, the
defendant, if released on bail, would fail to surrender to
custody.

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 (b) The court, a Justice of the Peace or police officer is
satisfied that the defendant should be kept in custody
for his own protection or, where he is a child or young
person, for his own welfare;

(c) The defendant is in custody in pursuance of a sentence

of a Court or any authority acting under the Defence
Act;

(d) Having been released on bail in or in connection with

the proceedings for the offence, the defendant is
arrested in pursuance of section 14.

(5) For the purposes of this section -

(a) references to previous grants of bail in criminal
proceedings include a reference to bail granted before
the coming into operation of this Act;

(b) references to a defendant's being kept in custody or

being in custody include, where a defendant is a child
or young person, his being kept in a place of safety or a
juvenile correctional centre under the Juveniles Act;

(c) the question whether an offence is punishable with

imprisonment shall be determined without regard to
any enactment prohibiting or restricting the
imprisonment of young defenders or first offenders.

(6) Where the matter referred to in subsection (2)(e)(repeat

offender) is taken into account in relation to a defendant, the
offence to which the bail application relates shall not be tried
before the Court which dealt with that application.

At a glance it can be seen that all the factors which played a part in
the consideration of bail utilising the common law principles were
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reproduced as circumstances under which bail may be denied. In dealing
with section 3 of the Act, I pointed out that under the Act the prosecutor
or police officer who opposes bail would now assume the burden of
satisfying the court or Justice of the Peace that bail ought to be denied.
This would seem most onerous especially in light of section 3(2) which
requires a consideration of bail within twenty-four hours after a person is
charged for an offence. Relief, however, comes in section 4(i)(c) which
provides for the denial of bail if it is thought that the time between the
charging of the accused person and the consideration of bail was not
sufficient to allow for the gathering of sufficient information for the
purpose of deciding on bail. Further relief is also to be found in section
4(i)(f) which allows the court to deny bail if it is of the opinion that the
detention of the accused person in custody is necessary for the
completion of inquiries or the making of a report.

Section 4(2) lists matters which shall be taken into account in

deciding whether or not the circumstances for the denial of bail exist.
Paragraph (e) is worthy of note. This provides for the taking into account
the fact that the defendant is a repeat offender. The provision of such
information to a Court, if that Court were to try the defendant would be
highly prejudicial. This was, however, addressed in subsection (6),
which states that "where the fact that the defendant is a repeat offender
is taken into consideration the defendant shall not be tried before that
Court". This solution, however, gives rise to new problems. If the
situation arises at a Circuit Court then the case could not be tried during
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the currency of the Circuit and where bail was denied this would mean a
longer period of detention of the defendant before his trial. Difficulties
may also arise in the Resident Magistrate's Court. If there happens to be
one Resident Magistrate in the parish arrangement will have to be made
to get another to try the case.

Whereas section 4(i) concerns persons charged or convicted of

offences which are punishable with imprisonment section 4(4) deals
with the circumstances under which bail may be denied in relation to
persons charged with offences which are not punishable with
imprisonment. This subsection at paragraph (b) as well as subsection (3)
add a not-often considered ground for the denial of bail. Bail may be
denied where the tribunal is satisfied that the defendant should be kept in
custody for his own protection or where he is a child or young person,
for his own welfare.

Subsection (5) is explanatory and serves to eliminate debates

regarding references to "previous grants of bail", "custody" and to settle
the question whether or not an offence is punishable with imprisonment.

Section 5 (1) prohibits the imposition of conditions specified in

subsections (2) and (3) of section 6 where a defendant is granted bail
unless it appears to the Court, a Justice of the Peace or police officer,
that it is necessary to do so -

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 (a) for the purpose of preventing the occurrence of any of
the events referred to in section 4; or

(b) to enable inquiries or a report to be made into the

defendant's physical or mental condition.

Subsection (2) makes these provisions applicable to applications to

vary the conditions of bail or to impose conditions in respect of bail
already granted unconditionally.

At first glance it would seem that a significant benefit is being

bestowed on persons who are granted bail. On further examination,
however, very little, if anything is gained, as in current practice the
imposition of conditions specified in section 6(2) and 6(3) is only done
for the purpose of preventing the occurrence of any of the events
referred to in section 4.

Section 6 lists the general provisions relating to bail. It states:

6 – (1) A person who is granted bail in criminal

proceeding shall surrender to custody.

(2) A court, Justice of the Peace or police officer may, in

accordance with regulations made under section 21,
require any person to whom bail is granted to provide,
at the person's option, as a condition for bail before his
release -

(a) a surety to secure his surrender to custody; or

(b) a payment of such amount as may be specified.

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(3) a person to whom bail is granted maybe required

(a) to surrender his travel documents to the court;

(b) to inform the court if he intends to leave Jamaica;

(c) to report at specified times and dates to a police

station;

(d) to comply with such other requirements as appear

to the Court to be necessary to ensure that the
person –

(i) surrenders to custody;

(ii) does not commit an offence while on bail;

(iii) does not interfere with witnesses or

otherwise obstruct the course of justice,
whether in relation to himself or any other
person;

(e) to attend at a bail centre at such times as the

Court may specify.

(4) The requirements referred to in subsection (2) (d) may

include the imposition of a curfew, in respect of any
person to whom bail is granted, between the hours
specified by the Court, requiring the person to remain
within a specified locality during the hours so specified.

(5) Where a parent or guardian of a juvenile consents to be

a surety for the juvenile for the purposes of this section,
the parent or guardian may be required to ensure that
the juvenile complies with any conditions imposed on
him by virtue of subsection (3), so, however, that -
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 (a) no condition shall be imposed on the parent or
guardian of a juvenile by virtue of this subsection
where it appears that the juvenile will attain the
age of seventeen years before the time to be
appointed for him to surrender to custody; and

(b) the parent or guardian shall not be required to

secure compliance, with any condition to which
his consent does not extend and shall not, in
respect of those conditions to which he gave
consent, be bound in a sum greater than fifty
thousand dollars.

(6) Where a Court has .granted bail in criminal

proceedings, it may on application -

(a) by or on behalf of the person to whom it was

granted; or

(b) by the prosecutor or a police officer, vary the

conditions of bail or, where bail was granted
unconditionally, impose conditions.

(7) Where a person has been granted bail in criminal

proceedings, bail shall not be revoked unless such
revocation is justifiable by virtue of any provision of
section 4.
This section in addition to stating the conditions which are
commonly imposed based on common law principles has introduced
new dimensions. Subsection (2) now gives the person being bailed an
option to choose whether he should provide a surety to secure his
surrender to custody or to pay a specified sum of money. Subsection (4)
which apparently contains an error in its reference to subsection (2)(d)
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instead of (3)(d) makes provisions for the imposition of curfews as a
condition of bail. Note should be taken of subsection (5). By virtue of
this subsection a parent or guardian who consents to be a surety for a
juvenile, if he consents may be required, in addition to securing the
surrender of the juvenile to custody, to ensure that the juvenile complies
with conditions imposed by virtue of subsection (3). Failure to ensure
compliance could lead to the forfeiture of a bond of up to fifty thousand
dollars. These conditions, however, may not be imposed on the parent or
guardian of a juvenile where it appears that the juvenile will attain the
age of seventeen years before the time to be appointed for him to
surrender to custody. Subsection (7) must have brought smiles to the
faces of defence counsel. It was not uncommon for the bail of
defendants to be revoked because of the absence of counsel. This
subsection now provides that bail should not be revoked unless such
revocation is justifiable by virtue of any provision of Section 4.

Section 7 of the Act requires a Court or police officer to make a

record of the decision to grant bail, appoint a time or place for the
surrender of the defendant to custody or to vary conditions imposed, and
upon the request of the defendant to supply him with a copy of the
record as soon as practicable after it is made. Subsection (2), however,
poses a problem for me as it speaks of the granting of bail by endorsing
a Warrant of Arrest. I must confess that I am not aware of this procedure
which seems to conflict with section 23 of the Constabulary Force Act
which speaks of "bail by recognizance, with or without security".

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 Section 8 of the Act mandates that a Resident Magistrate who
refuses bail, imposes conditions in granting bail or varies the conditions
of bail shall give reasons for his decisions and to include a note of those
reasons in the record. This is in order to enable the defendant to make an
application to a Judge in Chambers. The Resident Magistrate is further
required to give a copy of that note to the defendant or his representative
within twenty-four hours. This may not be practicable especially in rural
parishes where there are out station courts. It is my view that although
the word "shall" is used this would be interpreted as merely directory
rather than mandatory.

Sections 9 to 11 make provisions for an appeal by a defendant to a

Judge in Chambers from a refusal by a Resident Magistrate to grant bail
or from his imposition of conditions in granting bail and empower the
Judge in Chambers to grant bail or vary the conditions.

Section 12 provides for the review by a Resident Magistrate of a

refusal of bail by a Justice of the Peace or a police officer. It also
mandates that a Resident Magistrate carry out at least a weekly review
of cases involving defendants who were granted bail but were unable to
take up such bail.

Section 13 provides for bail pending appeal. It is to be noted that

this only applies to persons who were granted bail prior to conviction. It

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also provides for an appeal against the refusal of bail by a Resident
Magistrate and makes no such provision where bail is refused by a
Judge.

Section 14 introduces a sanction hitherto unknown in our

jurisdiction. Subsection (1) now makes it a criminal offence for a person
on bail to fail to surrender to custody without having a reasonable cause.
A person who has reasonable cause for failing to surrender is not
however totally exonerated. By virtue of subsection (2) he commits an
offence if he fails to surrender to custody at the appointed place as soon
after the appointed time as is reasonable practicable. Subsection (3)
places on the defendant the onus of proving that he had a reasonable
cause for his failure to surrender. Subsection (5) provides for the
admission of a certified copy of the record required by the Section (7) as
evidence of the time and place appointed for a person on bail to
surrender to custody. It is to be noted that failure to give a person
granted bail a copy of the record shall not constitute a reasonable cause
for his failure to surrender to custody. (See subsection(4)).

Although offences are created by subsections (1) and (2) of section

14, section 15 provides that a person guilty of an offence under section
14 (1) shall be liable on summary conviction before a Resident
Magistrate to a fine not exceeding five hundred thousand dollars or to
imprisonment for a term not exceeding two years. I believe that

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section 14 (2) was inadvertently omitted and that the penalty for
offences under section 14 (2) should be the same as for those under
section 14 (1).

Section 16 provides for the issuing of a Warrant for the arrest of

persons who have been bailed and who have failed to surrender to
custody at the time appointed for him to do so. Interestingly, the section
also provides for the issuing of a Warrant for the arrest of a person who,
having surrendered to the custody of a Court absents himself from the
court without leave at any time after his surrender and before the court is
ready to begin or resume the hearing of the case against him.

The section also empowers a police officer to arrest, without

warrant, a person he reasonably believes is not likely to surrender, is
likely to breach any of his conditions of bail or has breached any of
those conditions. He may also arrest without a warrant a person on bail
where the surety has notified him in writing that the defendant is
unlikely to surrender to custody and hence the surety wishes to be
relieved of his obligations. A person so arrested is required to be taken
before a Resident Magistrate for the parish in which he is arrested, or
where he is arrested within twenty-four hours of the time appointed for
him to surrender, before the Court at which he is to surrender.
Subsection (5) provides for what is to be done by a Resident Magistrate
before whom a person arrested is brought. It states:

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 (5) Where a Resident Magistrate before whom a person is
brought under subsection(4) is of the opinion that the
person –
(a) is not likely to surrender to custody;
(b) has committed or was about to commit another offence;
or
(c) has breached or is likely to breach any condition of his
bail,

the Resident Magistrate may remand him in custody or

commit him to custody, as the case may require, or grant him bail
subject to the same or different conditions, but where the Resident
Magistrate is not of any such opinion, the Resident Magistrate
shall grant him bail subject to the same conditions, if any, as were
originally imposed.

I find this section somewhat strange as I believe that any Resident

Magistrate who made a finding as mentioned in paragraphs (a), (b) and
(c) would remand in, or commit the person to custody.

Section 17 concerns the factors to be considered in determining the

suitability of a surety. It also makes provisions for the acceptance of a
surety and the manner of entering into a recognizance. A person who is
declined as a surety, is entitled under this section, to apply to the Court

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which fixed the amount of the recognizance or a Resident Magistrate in
the parish in which he resides to take his recognizance.

Importantly, any person who in any declaration required under this

section makes a statement which he knows to be false in a material
particular commits an offence for which he is liable on summary
conviction before a Resident Magistrate to a fine not exceeding three
million dollars or to imprisonment for a tern not exceeding two years or
to both such fine and imprisonment.

Section 18 of the Act provides for the forfeiture of a security and

the manner in which such forfeiture is to be dealt with. It is to be noted
that a Court which orders forfeiture may declare that the forfeiture
extends to an amount less than the full value of the security.

Section 19 addresses the circumstances under which a surety may

be released from his recognizance and the refund of any payments made
where the circumstances warrant it. Where such a surety is released, the
section requires that the defendant be notified and provides that he may
be taken into custody until he provides other surety or sureties.

Section 22 seeks to regulate the procedures to be followed on the

arrest or detention of a person who is not charged within twenty-four
hours after such arrest or detention.

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 At the time of writing this paper the Act which was passed in the
House of Representatives on the 21St June, 2000 and the Senate on the
14th July, 2000, has not yet been assented to. I am informed that this
will be done as soon as the regulations made under the Act are in place.
This is necessary as the Act envisages, inter alia, the setting up of Bail
Centres and the surrender of defendants at times other than the dates for
their appearance at Court and places other than the Courts.

The introduction of the Bail Act 2000 should go a far way in

streamlining the procedure applicable to bail. The police, prosecutors
and the Courts must, however, gear themselves for a large influx of
additional work in order to make this Act effective.

Presented by: The Honourable Mr. Justice Lloyd V. Hibbert

Puisne Judge

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