A joint select committee of Parliament is to be set up to review the new Bail Act which was tabled by Minister of Legal and Constitutional Affairs Marlene Malahoo Forte in Parliament on Wednesday.

When passed, the revised Bill, which has 24 clauses and four schedules, will repeal and replace the existing Bail Act of 2000. The new Bill looks at the power to grant bail, the reasonable conditions on which bail will be granted, and what amounts to sufficient cause for keeping someone in custody. The law also seeks to clarify the processes for review and appeal as well as to look at timelines within which actions are to be taken.

The Bill, which has gone through three drafts, has among its controversial provisions, denying bail to an accused on gun and murder charges. This has, however, been met with much objection by the general public as well as lawyers and civil society.

Malahoo Forte noted that the revised law “honours the entitlement to bail that is guaranteed under Section 14 (4) of the constitution, which provides that any person awaiting trial and detained in custody shall be entitled to bail under reasonable conditions unless sufficient cause is shown for keeping him in custody”.

The minister pointed out that the circumstances in which bail may be denied are set out in Clause 7 “and I do believe it will be of particular attention to persons as they read the Bill”.

She highlighted Clause 7(2), which she said “is a special provision in relation to defendants charged with the offence of murder, where self-defence does not arise and where the murder is committed in circumstances amounting to capital murder or where the offence is committed in a ZOSO [zone of special operations], and an area under a state of [public] emergency or where a cordon has been established or a curfew imposed”.

The expansive clause, with several parts, also states that, where the offence or one of the offences in relation to which the defendant is charged or convicted is punishable with imprisonment, bail may be denied to the defendant for a number of reasons. These include the deciding official being satisfied that there are grounds for believing that the defendant, if released on bail, would fail to surrender to custody; commit an offence while on bail; or interfere with witnesses or otherwise obstruct the course of justice, whether in relation to himself or any other person.

It also states that bail can be denied if the defendant, having been released on bail, is arrested for an offence under Section 14 (absconding by person released on bail); the defendant is charged with an offence alleged to have been committed while the defendant is released on bail; and the defendant is in custody in pursuance of the sentence of a court or any authority acting under the Defence Act.

Also, under certain circumstances, in denying bail, the deciding official shall take into account the nature and seriousness of the offence; the need for preserving public order and the likelihood of the threat to public order should the defendant be released on bail; the need for preventing crime and the likelihood that the defendant will commit an offence while released on bail; the prevalence of offences of that type in the community or the wider society; the defendant’s character, antecedents, association, and community ties; and the defendant’s record with regard to the fulfilment of the defendant’s obligations under previous grants of bail.

Another factor to be taken into account is the defendant’s mental health profile and in particular whether the defendant’s mental state renders it likely that danger is posed to any person, and any other factor that appears to be relevant. In addition, bail may be denied to a defendant who is charged with or convicted of an offence punishable with imprisonment if the deciding official is satisfied that the defendant should be kept in custody for the defendant’s protection or, where the defendant is a child, for the defendant’s welfare.

Highlighting other provisions of the Bill, Malahoo Forte noted that conditions of bail in Clause 8 are to ensure that the defendant surrendered to custody does not commit an offence while on bail or interfere with witnesses or otherwise obstruct the course of justice in relation to himself or others.

She noted that the law provides that some conditions may only be imposed by a court and these include surrender of travel documents, imposition of curfew, and the wearing of an electronic bracelet.

She also highlighted Section 9, which sets out general provisions relating to bail, where conditions imposed may be varied on application of the defendant or the prosecution.