Bail is not meant to be punitive and should not be so

Oct 26, 2016 Letters

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Dear Editor;
I am to say the least surprised at the comments attributed to the current Commissioner of Police (Ag). I am a member of the bar who from time to time practices in the criminal courts in Georgetown and who have completed several trials before the High Court.
I wish to remind everyone that every person charged with an offence is presumed by law to be innocent until proven guilty. The objective of bail is to ensure that a person charged with a criminal offence will attend court. Bail is never meant to be punitive or a deterrent.
In considering whether to grant bail a court will take into consideration many factors including the means of the person charged, whether they have a fixed residence, whether they have family, whether they have businesses and other ties to the community.
The court may well consider evidence presented that a person may flee the country; unfortunately many times you will hear a prosecutor say that a person charged is a flight risk. There is often no basis or evidence to support this proposition which has often become a mantra among prosecutors.
Certainly if the police were to produce evidence that a person has a passport, has sold all their assets, closed their bank accounts and has purchased a ticket then I am sure a court would not be inclined to grant bail.
I come to the Dataram matter; there are immigration officers placed at every port of entry and exit into Guyana. As it stands the Immigration Section is part of the Guyana police Force. In fact the Commissioner or Police holds the position of Chief immigration officer.
If memory serves me correctly the “Backtrack” at Skeldon one could say is opposite the Skeldon Police Station.  One would expect that a person of interest such as Mr. Dataram would have been under police surveillance much less if they were in possession of information or even had suspicion that Mr. Dataram had an intention to flee Guyana.
The irrefutable fact is that Mr. Dataram was able to elude the police and the force must accept responsibility for its failure to prevent Mr. Dataram from leaving Guyana. The court has no burden to prevent a citizen from leaving the country.
When the court makes an order that order must be enforced by the police. Mr. Dataram may well have been a prime candidate for the immigration “blacklist”.
Dataram aside we must get to the point. Many citizens are placed before the court before the police investigation is complete and often languish in custody for months before the police complete their investigation after which the trial may finally commence.
For the serious crimes of narcotics and firearm possession a Magistrate by law cannot grant bail unless there are special circumstances that relate to the offence and not the offender. I do not agree with this position but that is the current situation.
All citizens are guaranteed a trial within a reasonable time. I am firmly of the view that if a person charged with a serious offence and that trial has not started after several months I believe the person charged should be admitted to bail.
I am involved in a case where two persons were charged for the alleged possession of a substantial amount of marijuana. After two months on remand it was revealed that the police investigation was incomplete. There was no indication when the investigation would be completed. I believe that the two persons were rightly admitted to bail.
The reason many trials are delayed is due to the unavailability of witnesses which often leads to adjournments. The witnesses are either not summoned or just do not turn up. The Police are the persons who serve summons and in many serious criminal matters are the very witnesses who do not attend court.
The judiciary cannot be blamed for granting adjournments and thereby prolonging matters when police witnesses do not turn up or when police fail to serve summons on witnesses or fail to furnish prosecutors with the returns of service.
Should the judiciary dismiss matters for want of prosecution when witnesses are not summoned or police fail to attend court there would be outcry at the denial of justice.
The fact is the police are an integral facet in the judicial process without whom the judiciary cannot function. If the police are not working efficiently the judiciary will not function efficiently and that is exactly why we are in the position we find ourselves in.
I hope that the comments attributed to the Commissioner of Police (Ag) were somehow misinterpreted but really most persons on bail for serious offences more so narcotics and possession of firearms are, I am certain, only on bail because a Magistrate or Judge had no other option than to protect a citizen’s liberty from undue or excessive delay in trial or some other special circumstance particular to the case that warranted the grant of bail.
Peter Hugh,
Attorney-at-Law

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