The Bail Amendment Act came into force on December 30, 2005,
after months of debate and some acrimony as to its desirability
and possible value.
With the Opposition support in the House of Representatives,
the act was passed with the special majority needed in the
case of a law that breaches the fundamental human rights provisions
of the constitution.
Similarly, the Senate passed the act with the special majority.
In both Houses it was unopposed.
What is the effect of and what are the benefits to be derived
from this new law?
What does the Government hope to achieve by it? These are
the questions that one must consider in a critical analysis
of this unique new law, which has been touted as the first
in the package of “crime-fighting legislation” that
the Government hopes to pass with co-operation from the Opposition.
The act has been dubbed the “No-Bail for Kidnappers”
Act. At first blush, the legislation does appear to provide
for this, as it states that a court “shall not grant
bail” to a person charged with kidnapping for ransom.
Then comes the catch: Notwithstanding this, a person so charged
who has not been “brought to trial within 60 days of
the charge” shall be entitled to apply for bail. In short,
therefore, the law does not deny bail to such persons, but
provides for their automatic detention for 60 days.
In T&T, it is virtually unheard of for any person charged
with an indictable offence to obtain a trial within 60 days.
This means that after such a period, the kidnapping accused
is now in a position like that of any other accused in being
able to apply for bail.
Ironically, this law may have the effect of the prosecution
and the court attempting to ensure that the accused kidnapper
does have a trial within 60 days.
Even if they are unsuccessful, this could mean that the trial
of such a person may be accelerated during the 60 days, AND
he may then still be eligible for bail.
Interestingly enough, a person who is tried for murder in
this country and who, by law, cannot be granted bail is never
“brought to trial” within 60 days. No law requires
this, and so, things take their natural course.
Time is needed for the preparation of the case (completing
investigations, obtaining witnesses’ statements, etc);
there must also be a preliminary enquiry where all of the
witnesses must first give evidence.
After this, the depositions are sent to the DPP who, if he
decides that the evidence is sufficient, will file an indictment
in the High Court, charging the person accused for the relevant
offence/s.
The matter is then put on a cause list and then on a regular
trial list. It is only then that, subject to the court’s
convenience, the matter is tried.
In practical terms, therefore, the effect of the new law may
serve to promote a speedier trial for a person accused of
kidnapping, as compared to persons charged with other crimes.
These include not only murder accused, but other persons charged
with crimes such as robbery, drug trafficking and so on, who
may well have been denied bail.
It is clear that the Bail Amendment Act is not, as far as
kidnapping for ransom is concerned, a “no-bail”act.
The strength of the bill or, as some may call it, its draconian
effect, really lies in its other main section. This stipulates
that a court shall not grant bail to a person charged with
any one of the specified violent offences if he has had two
previous convictions in the past 15 years for any violent
offence.
“Violent Offences” include manslaughter, sexual
offences, firearm offences, shooting or wounding with intent
and robbery. The term includes any attempt at any of these.
This means that a person who has been convicted of, say, attempted
rape 14 years ago (when he was, maybe 20) and robbery 12 years
ago will be refused bail. This is automatic. The Court has
no discretion.
Such a person cannot even apply to the court. This is truly
a “three strikes” law, in so far as bail is concerned,
and it is probably not irrational, since it relates only to
persons who have had previous convictions.
It is not unreasonable to argue that such a person is likely
to commit an offence while out on bail. In fact, this is an
argument which is often made in court by the prosecution in
relevant situations, and sometimes bail is denied.
What the legislature has done is to totally remove the discretion
to grant bail from the courts in the circumstances described
above.
Strangely, in this act, kidnapping for ransom is not listed
as a violent offence. So a person who was convicted of robbery
ten years ago and kidnapping for ransom last year, is still
entitled to apply for bail if he does not get a trial in 60
days.
Yet, a person who has had two convictions for robbery in the
last ten years may not apply at all. The courts simply cannot
grant him bail.
It is clear that the act may be useful for crime-fighting,
in so far as kidnapping for ransom is concerned, only in a
limited way; keeping the accused out of commission for 60
days.
Otherwise, the law does not address the issue of completed
denial of bail in any circumstances for this offence.
It is suggested that it is a serious oversight not to not
include kidnapping for ransom in the list of violent offences,
convictions of two of which lead to a subsequent denial of
bail.
This should be corrected by Parliament. After all, on a scale
of one to ten for violence, kidnapping for ransom must at
least be an eight?
