The new protocol for bail applications

Dear Editor,

A new practice with respect to bail applications was communicated to members of The Bahamas Bar Association via email this past December.

This new bail etiquette does more harm than good.

The advice contained in the email indicated that there are now prescribed categories of bail applications which will be considered urgent.

Consequently, this places all other bail applications into a general category that are then placed in the listing queue for hearing.

The decision as to whether or not the application falls into one of the respective categories lies with the deputy registrar (responsible for criminal matters).

If the applicant falls into one of the first four prescribed categories (juvenile, pregnant, ailing or elderly) the deputy registrar can set the matter down for hearing on his own authority.

A form is sent to the Office of the Director of Public Prosecutions and the matter will proceed.

The decision as to whether the Crown will object or not lies with one of five individuals (including the director of public prosecutions) who is authorized to indicate whether or not there will be an objection to a bail application.

This practice is plainly prejudicial to accused persons.

That there is one judge per week assigned to hear “urgent” bail applications further compounds this issue.

All judges are capable. All prosecutors are capable. Bail applications are usually one of the most straightforward applications, and are certainly one of the most important.

The communication to the members of The Bahamas Bar stated: “The new protocol for the above-captioned seeks to eliminate unnecessary detention of accused persons if they fall into one of the following categories.”

Bail applications that do not meet the criteria are subject to a wait time that ranges between 10 to 14 days.

During this time, the accused person is sent up to the Bahamas Department of Corrections.

“Innocent until proven guilty” is the ethos of the criminal process, and guilt is determined following a trial by jury.

Where the accused has pleaded “not guilty” it means a trial by jury would be set for a future date, at which his innocence will be upheld, or disproven.

It follows then that if the accused is as yet convicted and sentenced, there is a bias toward innocence cloaking them and the most immediate next step following a plea should be an application for bail.

Further frustrating the process is the fact that once an accused person’s application comes up, there is more often than not no objection to bail by the prosecution for the majority of offenses.

Every Bahamian citizen is entitled to protection of their fundamental rights and freedoms.

Article 19 of The Bahamas Constitution provides protection from arbitrary arrest or detention.

It says: “No person shall be deprived of his personal liberty save as may be authorized by law in any of the following cases” and goes on to list the exceptions to the provision.

Important here is the definition of arbitrary; based on random choice or personal whim rather than any reason or system. None of the exceptions contained in Article 19 provide a pillar for the new protocol.

Traditionally, there were no administrative impediments to bail applications being heard contemporaneously with the arraignment of the accused.

It was customary legal practice for counsel to be prepared to address the Court on bail “on the spot”. Judges would also not typically find issue with this practice as they recognized that an individual whose innocence has yet to be disproven by trial, where there is no other justifiable reason in law for detaining them, fell into the gray area of arbitrary detention.

The legislation that consolidates the law relating to the release from custody of accused persons in criminal proceedings is The Bail Act, Chapter 103 of the Statute Laws of The Bahamas.

The act, at section 3, says that subject to section (4) and except as provided in Part A of the first schedule, bail may be granted, notwithstanding the provisions of any other law, to a person – who is accused of an offense when – he appears or is brought before a Magistrate’s Court, or the Supreme Court in the course of or in connection with proceedings for that offense; or (ii) he applies to a court for bail in connection with the proceedings for that offense.

There having been no amendment at the time of writing to this section of the act, this provision confers a discretion on the magistrate, or judge (as the case may be) to grant bail whenever the accused is brought before the court for any reason to do with the alleged offense.

In certain instances, the magistrates do not have jurisdiction to grant bail, but even taking this into account the discretion exists and reads as being unfettered.

One could paraphrase section 3 of the act as “if an accused is before the court for any reason in connection with an alleged offense, he can make, or an application can be made on his behalf, for bail”.

The spirit of the provision was obviously to ensure that liberty may be pleaded for at the earliest possible, or any opportunity, without the exception.

A solution to this issue would be removing the new protocol, and amending the law such that the jurisdiction to grant bail in summary and triable-either-way offenses is returned to the magistrates, leaving indictable offenses within the jurisdiction of the Supreme Court.

This would free up additional resources such that bail matters could proceed on before all of the courts at all levels.

An even more proactive solution would be to allow bail applications for all matters to be allowed on arraignment, as is the practice in the United States.

Representations as to the accused person’s age, physical health and the other categories of the new protocol should form part of the supporting affidavit, and counsel’s submissions.

I do not believe that it was the intention of the decision makers who implemented the new protocol for bail applications to violate the act, or place an impediment on the due process and fairness in criminal trials, but that is the effect of the protocol.

It has engineered a situation where the process of bail applications being vetted for urgency and then listed days or weeks after arraignment gives rise, in my view, to an Article 19 violation of the protection from arbitrary arrest and detention.

I.A. Nicholas Mitchell

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