New Bail Bill quashes police 72 hour custody rule

Jun 17, 2022 News

– suspect must be taken before the court within 24 hours for serious offence

By Renay Sambach

Kaieteur News – The new Bail Bill that is expected to be tabled in the National Assembly soon, quashes the Guyana Police Force (GPF) 72 hour custody rule, as it outlines that suspects placed in custody for serious offences, must be taken before the court within 24 hours.

Attorney General (AG) and Legal Affairs Minister Anil Nandlall, SC.

This is according the Attorney General (AG) and Legal Affairs Minister Anil Nandlall, SC. On Tuesday night, the AG disclosed that the long-awaited Bail Bill is finally completed and is slated to be tabled in the National Assembly possibly by the next sitting of Parliament. Nandlall made the announcement during his weekly show aired on Facebook, ‘Issues in the News.’
While the new piece of legislation focuses largely on a regulatory framework for a magistrate’s discretion in granting or refusing bail– it has provisions that outline how the police handle suspects before they pass through court. According to the Attorney General, the Bill addresses bail at the police station and states very clearly that persons charged for offences that do not carry a custodial sentence, “must be granted bail immediately by the police officer in charge of the police station or an inspector.” He pointed out that anyone charged for an offence that does not carry jail time, should not be kept in police custody but rather released on bail.
On the other hand, he said that suspects can only be kept in custody if he/she was arrested for serious offences. However, while the police can keep the suspect in custody, the new legislation states that the suspect must be taken before a magistrate within 24 hours. The AG said, “Our constitution says our police can detain you for 72 hours, our experience is though the police can conclude the investigation in five hours because they have that constitutional coverage, they hold you for 72 hours that ought not to happen.”
Nandlall further disclosed that the new Bill imposes an obligation on the police to act with alacrity and expediency. To this end, he noted that if the investigation can be conducted within a short period of time, the police do not have to wait 72 hours before they charge the suspect.
He pointed out that the approach by members of the GPF to arrest and keep the suspect in custody for 72 hours despite it being possible for them to be charged before that time reaches, will not be tolerated.
In relation to the framework for the granting or refusal of bail, the Bail Bill makes provision for a magistrate or judge decision on bail to be appealed. In fact, the appeal of the grant or refusal of bail can go as far as the Caribbean Court of Justice (CCJ).
Nandlall said that bail has long attracted great public sentiments and criticism and have been an issue in the public domain for a long time. “Persons have complained about the inconsistent grant of bail as well as the inconsistent refusal of bail. This Bail Bill will seek to bring a statutory framework and will intend to fashion the exercise of discretion,” he added.
The AG explained that bail is a discretionary issue and while it will remain that way – like every other discretion, the discretion to grant or refuse bail is not an absolute one, with the new Bill. He said, “It is not an untrammelled discretion, it is a discretion that must be exercised in accordance with certain principles and must exercise reasonably well those principals are now laid down in the law.”
As a result, the Bail Bill provides for the decision to grant or refuse bail, to be appealed or undergo a judicial review. It was stated that in instances where the defendant bail application is denied, the defendant can appeal the magistrate’s decision or there can be a judicial review of the decision. On the other hand, if bail is granted to a defendant and the prosecutor is aggrieved, the prosecutor too can also appeal the magistrate’s decision or ask for a judicial review.
The Bill also makes provision for the defendant to appeal the magistrate’s decision if he/she believes that the quantum of bail is too high. Notably, it was highlighted that if a magistrate refuses bail for a defendant that is charged with a bailable offence; there must be evidence that the defendant is likely to: contaminate witnesses, flee the jurisdiction, likely to commit more crimes or the crime that the defendant allegedly committed is of grave frequency or of profound gravity among other factors.
In addition, there are other provisions that deal with the conditionality of granting bail, whereas, if bail is granted by the magistrate with the condition attached that the defendant lodge his/her passport, or any other condition – the bill allows for an application to be made to waive or vacate the condition(s) imposed.
According to Nandlall, the Bill also outlines that persons who were convicted but had appealed the matter can also request bail. He said, “so if you are convicted, you can still get bail once an appeal is lodged and your lawyer makes an application to the court in which the appeal is pending. Of course the test for granting bail post-conviction will be a high one for you to satisfy.”
Notably, the AG was keen to note that the Bill also recognises the presumption of innocence as a constitutional right. As such, he stated that the legal truth that bail is intricately bound to the assumption of innocence, therefore bail should be granted unless there are certain factors present. To this, he added that those factors are listed in the bill.
It was also pointed out that the new Bill is in conformity with Guyana’s constitutional ethos. Nandlall explained that the Bill is aimed at reducing the wide discretion the magistrates in relation to bail, which has faced heavy criticism over the years. He added, “there is now a regulatory framework that will govern the exercise of this discretion and it’s a framework that is in accordance with established legal principles.”
In closing, the Attorney General explained that his ministry looked at laws from around the Caribbean, England, Canada and some countries in the Pacific area, which aided in the drafting of the Bill. He stated too that the Bill underwent wide consultations which have resulted in it being in the pipeline for so long. According to him, there were also consultations with the Guyana Bar Association (GBA) and the Berbice Bar Association (BBA), who made tremendous contribution to the Bill.