Factors considered when granting bail

In my column, which was published on Monday, March 21, 2022, I focused on the inconsistencies of the bail process. In light of the statements made last week by Marlene Malahoo Forte, the minister of legal and constitutional affairs, as well as reaction from members of the legal fraternity, I will use today's edition to shed some light on the factors that are taken into account when deciding whether or not an accused is a fit and proper candidate for bail.

It is important to note that every citizen of Jamaica has a fundamental right to freedom, and is presumed innocent until proven guilty. Despite this right, the issue of bail is more akin to a contract between an accused and the State, whereby the accused agrees to abide by certain conditions in exchange for his freedom throughout the trial process.

Due to the presumption of innocent, the onus is on the prosecution to prove to the court that the accused should not be granted bail. The accused is also given the opportunity to show the court that contrary to the prosecution's position, he is a fit and proper candidate.

One of the important factors the court needs to consider is whether an accused person is a flight risk. In determining whether an accused is a flight risk, an accused needs to show that he is grounded in the jurisdiction such as being tied to assets or work; that he has emotional, family, community ties; and that he does not possess any travel documents, or alternatively, he is prepared to hand over his travel documents to the police.

Another factor that is taken into account is the seriousness of the allegations. The reasoning is that the more serious the allegations, the less likely the accused will want to stand trial, due to the likely sentence that he may face if found guilty. As such, an accused who faces a potential life sentence is more likely to abscond, versus an accused who faces the potential of a fine.

Another factor to be taken into account by the court is the likely interference with a potential witness.

Bail is a balancing act, and as such, the court has to, on the one hand, balance the securing of the accused to stand trial, and on the other hand, the security of the prosecution's witness. Therefore, if the prosecution suspects that there may be likely interference with their witness, then the accused will need to provide the court with an alternative address that is far away from where a witness may live or work, as well as agree not to interfere with the witness or visit a particular community.

Another factor that the court takes into account is whether the accused will commit further crimes whilst on bail. The court will look at the disposition towards violence on the part of the accused, as it is evident from his conduct and reports that may have been made to the police.

This leads me to the next factor, which is whether or not the accused has any previous convictions. The reasoning behind this factor is simple. If this accused has been convicted of a prior offence, especially if it's one of a similar nature that he is before the court for, then the court cannot guarantee that he will not likely reoffend while on bail.

This medium will not allow me to go through all the factors. However, the last factor I wish to share, is that the court also takes into account personal factors, such as the accused's health, his advanced or young age, as well as whether or not he is the sole breadwinner for the family.

In conclusion, I believe that seriousness of an offence by itself should not be the sole reason for keeping an accused in custody pending his trial. There are several factors that should be taken into account, and deviating from this position will be so punitive that it deprives the accused of his presumption of innocence.

Odane Marston is an attorney-at-law who specialises in conveyancing, administration, probate, recovery of possession, criminal litigation and divorce. Marston may be contacted via email: Odanemarston@gmail.com or telephone 876-999-5391.

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