Understanding the issue of bail

"Police took my son in custody and when I went to the station, the police officer on duty informed me that they are not giving him bail. The officer said that he would need to get approval from his inspector. Can't the officer in charge of the case give him bail and what would I need to bail him?" - RonD

Dear RonD-

I understand your frustration. The truth is there has been some debate about the inconsistencies around the subject of bail in recent time. I think part of the reason for this is due to the fact that the granting of bail is highly discretionary, and is determined on a case-by-case basis. It is difficult to answer why in this particular case the officer is refusing to offer bail, however, I will try to explain the law in relation to bail, and also the requirements.

It is important to note that every citizen of Jamaica has a fundamental right to freedom, and is presumed innocent until proven guilty. This fundamental right has been enshrined in our Charter of Rights (The Constitution). Section 14(4) of the Charter states: "Any person awaiting trial and detained in custody shall be entitled to bail on reasonable conditions, unless sufficient cause is shown for keeping him in custody."

Although the Constitution gives everyone a right to freedom and the presumption of innocence, the Bail Act is the piece of legislation that governs bail in Jamaica. Section 25 of the act states that "the officer or sub-officer in charge of the police station or lock-up shall grant bail to that person in accordance with the Bail Act, unless the person has been taken into custody on a charge of murder, treason or treason felony".

This means that unless someone is charged for any of the aforementioned offences, then they can be admitted to bail by a police officer. Only a judge can grant bail in instances where a person has been taken into custody on a charge of murder, treason or treason felony.

The Bail Act also states the circumstances in which bail may be denied to a person with an offence that is punishable with imprisonment and places the onus on the prosecution to satisfy the court as to why bail should be denied to the accused.

Whilst it is settled that an accused has a right to bail, unless the prosecution presents good reason as to why the accused shouldn't be offered bail, the confusion to many may stem from the wide latitude of discretion afforded to those who apply it. It must be noted as well that bail is quite subjective and must be determined on a case-by-case basis.

Another aspect of bail that causes confusion is that there are no set requirements, which sometimes vary from police station to police station as well as from court to court. For instance, if you are arrested, you may be granted bail on your own recognisance (that means you are known by the officer and can be trusted to appear in court). If the officer is not minded to grant you your own bail, then someone can agree to sign for you as a surety, which means that they will be liable for the bail amount in the event that you abscond. These, of course, are at the discretion of the police officer.

If one is granted bail in their own surety, then all that is required by the police is proof of identification. If bail is offered in the sum of $50,000 or less, then the surety only need to present proof of identification as well as complete the requisite bail forms.

If bail is offered in the sum greater than $50,000, the general requirements are: one passport-size picture signed by a J.P., a valid form of identification, two letters of recommendation from reputable persons such as a justice of the peace; collateral, which can be in the form of cash, motor vehicle title, land title without caveat, proof of address and a recent utility bill.

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Odane Marston is an attorney-at-law who specialises in conveyancing, administration, probate, recovery of possession, criminal litigation and divorce. He may be contacted via email Odanemarston@gmail.com or star@gleanerjm.com

This article is for general information purposes only and does not constitute legal advice.