UNIT FIVE

BAIL IN CRIMINAL PROCEEDINGS

STATUTORY PROVISIONS ON BAIL

Trinidad & Tobago

Bail Act, 1994 (Act 18of 1994) and subsequent amendments and in particular Act
17/2008 and note Third Schedule where the amendments to original provisions in
Acts dealing with Bail are specified.

Summary Courts Act, Chap 4:20

ss. 26- Appeal.

26. (1) If any person ordered by any Magistrate or Justice to pay a fine or to be imprisoned under the authority
of section 25 is dissatisfied with such order, such person may, at the time of such order, give notice in writing to
the Magistrate or Justice (hereinafter referred to as the “convicting Magistrate or Justice”) of his intention to
appeal to the Court of Appeal against such order.

(2) The giving of such notice signed by the appellant or his Attorney-at-law shall not operate as a stay of such
order unless the appellant, within two days after the giving thereof, enters before a Magistrate or Justice into a
recognisance with one surety in the sum of one thousand dollars acknowledged before a Magistrate or Justice
and conditioned that the appellant do personally appear, and do not depart the Court without leave and abide
by the judgment of the Court of Appeal thereupon, and pay such costs as may be awarded by such Court.

(3) Upon such notice being given and such recognisance being entered into, the Magistrate or Justice before
whom such recognisance is entered into shall release the appellant if in custody, and thereupon the appeal
shall be proceeded with in the manner provided in this Act.

56- Transfer of case where cause of complaint has arisen out of district of
Court. Third Schedule
56. (1) If, upon the hearing of any complaint, it appears that the cause of complaint arose out of the limits of the
district of the Magistrate before whom such complaint has been made, the Court may direct the case to be
transferred to the Court of the district wherein the cause of complaint arose.

(2) (Deleted by Act No. 18 of 1994).

(3) Subject to section 5 of the Bail Act, the complaint and recognisance, if any, taken by such first-named
Magistrate or Justice under this Act shall be by him transmitted to the Magistrate or Justice before whom the
defendant is to be taken; and such complaint and recognisance, if any, shall be treated to all intents and purposes
as if they had been taken by such lastmentioned Magistrate or Justice.

(4) If the defendant is granted bail, the Magistrate or Justice shall inform him that he has directed the transfer of
the case and thereupon the provisions of subsection (3), respecting the transmission and use of the documents in
 66- Power of adjournment and proceedings thereon.
(1) At any time before or during the hearing of a complaint, it shall be lawful for the Court, in its discretion, to
adjourn the hearing of the complaint to a certain time and place to be then appointed and stated in the presence
and hearing of the party or parties, or his or their respective Attorney-at-law.

(2) The Court, on being satisfied that a defendant who has been remanded is, by reason of illness or accident,
unable at the expiration of the period for which he was remanded to appear personally before the Court, may, in the
absence of the defendant, order him to be further remanded for such term as may be considered reasonable. (3)
Subject to section 5 of the Bail Act, the Court may, upon any such adjournment, remand the defendant in custody
by committing him to prison or to such other safe custody as it thinks fit and the time fixed for the resumption of
the trial shall be that at which he is required to appear or to be brought before the Court in pursuance of the
, A committal made under subsection
remand. (3A)

(3) shall be for a maximum period of twenty-eight days unless a Court is not held within that time, in which case the
defendant shall be brought before the Court on the first day on which the Magistrate holds Court at the place where
the order was made. (4) If, at the time and place to which such hearing or further hearing is so adjourned, either or
both of the parties does or do not appear, the Court may proceed to such hearing or further hearing as if such party
or parties was or were present; or, if the complainant does not appear, the Court may dismiss the complaint. (5) The
Magistrate may also, if the defendant fails to appear, issue a warrant for his apprehension.

66A Remand for medical examination

(1) Where, on the trial by the Court of an offence punishable on summary conviction with imprisonment, the Court is
satisfied that the offence has been committed by the accused, but is of the opinion that an inquiry ought to be made
into his physical and mental condition before the method of dealing with him is determined, the Court shall adjourn
the hearing to enable a medical examination and report to be made and shall remand him.

(2) An adjournment in pursuance of subsection (1) shall not be for more than three weeks at a time.

(3) Where on an adjournment under subsection (1) the accused is remanded on bail, the Court shall impose
conditions under section 12(3)(d) of the Bail Act, which conditions shall include the requirements that the accused—
(a) undergo medical examination by a duly qualified medical practitioner or, where the inquiry is into his mental
condition and the Court so directs, by two such practitioners; and

(b) for the purpose, attend such institution or place, or on such practitioner as the Court directs and, where the
inquiry is into his mental condition, comply with any other directions which may be given to him for that purpose by
any person specified by the Court or by a person of any class so specified.

s 105- Procedure where offender is taken into custody without warrant

On a person being taken into custody for a summary offence without a warrant, any police
officer of or above the rank of corporal may in any case, and shall, if it will not be
practicable to bring such person before a Magistrate or Justice within twentyfour hours
after he was so taken into custody, enquire into the case, and, unless the offence appears
2 to such police officer to be of a serious nature, grant him bail in accordance with the Bail
Act, subject to a duty to appear before a Court at such time and place as the police officer
appoints; but where such person is retained in custody he shall be brought before a Court
 s 107- Warrant endorsed for bail.
(1) A Magistrate or Justice on issuing a warrant for the arrest of any person may grant him bail by endorsing
the warrant for bail in accordance with subsection (2).

(2) A direction for bail endorsed on a warrant under subsection

(1) shall—

(a) state that the person arrested is to be released on bail subject to a duty to appear before
such Court and at such time as may be specified in the endorsement; and

(b) fix the amounts in which any surety is to be bound.

(3) Where a warrant has been endorsed for bail under subsection (1), then, on the person
referred to in the warrant being taken to a police station on arrest under the warrant, the officer in
charge of the police station shall, subject to his approving any surety tendered in compliance with
the endorsement, release the person from custody as directed in the endorsement.

123- Mode of enforcing recognisance.

(1) Where a recognisance to keep the peace or to be of good behaviour has been entered into before a
Court or any recognisance is conditioned for the appearance of a person before a Court or for his doing any
other act or thing connected with a proceeding before a Court, and the recognisance appears to the Court
to be forfeited, the Court may declare the recognisance to be forfeited and adjudge the persons bound
thereby, whether as principal or surety, or any of them, to pay the sum in which they are respectively
bound.

(2) The Court which declares the recognisance to be forfeited may, instead of adjudging any person to pay
the whole sum in which he is bound, adjudge him to pay part only of the sum or remit the whole sum.

128- Right of appeal.

(1) Where a Court refuses to make a conviction or order, the complainant may appeal to the Court of
Appeal against such decision.

(2) Where a Court makes a conviction or order, the party against whom the conviction or order is made may
appeal to the Court of Appeal against such conviction or order.

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 135 - Procedure after notice of appeal given
(1) Upon notice of appeal being given and such recognisance as mentioned above being entered into, the Magistrate or
Justice before whom the recognisance is entered into shall release the appellant, and the Clerk shall, with all convenient
dispatch, transmit to the Registrar of the Supreme Court—

(a) three copies of the record of the proceedings, the notes of evidence and the statement of the reasons for the
Indictable
decision of Offences
the Magistrate (Preliminary
or Justice Enquiry)
duly certified under Act,
his hand; andChap. 12:01 ss. 9, 10, 11, 15, 22,
23, 28, 30, 31, 33, 34, 37, 38.
(b) all writings and other articles exhibited by the witnesses or any of them inventoried and labelled, or otherwise
marked so that the same may be identified on the hearing of the appeal.

(2) On receipt thereof the Registrar shall cause the appeal to be entered for the next convenient sittings of the Court of
Appeal and shall notify the Clerk and the Clerk of Appeals thereof.

(3) After the Court of Appeal has pronounced judgment on the appeal or made any order thereon under section 147 the
Registrar of the Supreme Court shall with all convenient dispatch return to the Clerk the said exhibits.

(4) For the purposes of this Part the expression “Clerk of Appeals” means the public officer whose official functions include
the receipt and despatch of notices of appeals.

• Indictable Offences (Preliminary Enquiry) Act, Chap. 12:01 ss.

9- Warrant endorsed for bail.

9. (1) A Magistrate issuing a warrant under this Act for the arrest of any person in respect of
any offence other than those persons referred to in section 5(1) of the Bail Act, may grant him
bail endorsing the warrant with a direction in accordance with subsection (2).

(2) A direction for bail endorsed on a warrant under subsection (1) shall—

(a) state that the person arrested is to be released on bail subject to a duty to appear
before such Court and at such time as may be specified in the endorsement; and

(b) fix the amount in which any surety is to be bound.

(3) Where a warrant has been endorsed for bail under subsection (1), then on the person
referred to in the warrant being taken to a police station on arrest under the warrant, the
officer in charge of the police station shall, subject to his approving any surety rendered in
compliance with the endorsement, release him from custody as directed in the endorsement.

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10 PROCEEDINGS ON APPEARANCE OF ACCUSED PERSON

(1) When any person is apprehended upon a warrant, he shall be brought before a Magistrate as
soon as practicable after he is arrested, and the Magistrate shall either proceed with the
preliminary enquiry or postpone the enquiry to a future time, in which latter case he may grant
him bail or commit him to prison according to the provisions hereinafter contained.

(2) Every accused person is entitled as of right to the presence and assistance of his legal
adviser, and while under remand shall be allowed the access of his legal adviser at all
reasonable times.

11 – Irregularities

(1) No irregularity or defect in the substance or form of the complaint, summons, or warrant, and no
variance between the charge contained in the summons or warrant and the charge contained in the
complaint, or between any of them and the evidence adduced on the part of the prosecution at the
preliminary enquiry, shall affect the validity of any proceeding at or subsequent to the hearing.

(2) Where any accused person is before a Magistrate, whether voluntarily or upon summons, or after
being apprehended with or without warrant, or while in custody for the same or any other offence, the
preliminary enquiry may be held notwithstanding—

(a) any irregularity, illegality, defect or error in the summons or warrant, or the issuing, service or
execution of the same;

(b) the want of any complaint upon oath; or

(c) any defect in the complaint, or any irregularity or illegality in the arrest or custody of the
accused person.

(3) The Magistrate may, if he thinks that the ends of justice require it, adjourn the hearing of the case, at
the request of the accused person, to some future day and in the meantime grant him bail or commit him
to custody according to the provisions hereinafter contained.

(4) Where the hearing is adjourned under subsection (3), the accused person shall not be committed to
prison unless, before his committal, a complaint in writing and upon oath is taken.

15- Custody of accused during adjournment

During such adjournment the Magistrate may grant bail to the accused person or commit him to
custody according to the provisions hereinafter contained.

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22- Magistrate may consult Director of Public Prosecutions
Where a Magistrate is, during a preliminary enquiry, in doubt as to any matter arising during the enquiry, he
may grant bail to the accused person or commit him to prison according to the provisions hereinafter
contained, until he has consulted, and received the opinion of, the Director of Public Prosecutions in the matter.

23- Discharge or committal for trial of accused.

(1) When all the witnesses on the part of the prosecutor and of the accused person, if any, have been heard, the Magistrate
shall, if, upon the whole of the evidence, he is of opinion that no prima facie case of any indictable offence is made out,
discharge him; and in such case any recognisance taken in respect of the charge becomes void.

(2) Where the Magistrate is of the opinion, on consideration of the evidence and of any statement of the accused, that
there is sufficient evidence to put the accused on trial for any indictable offence, the Magistrate shall commit the accused
for trial—

(a) in custody, that is to say, by committing him to prison there to be safely kept until delivered in due course of
law; or

(b) on bail in accordance with the provisions of the Bail Act, that is to say, by directing the accused to appear
before the High Court for trial, and where his release on bail is conditioned on his providing a surety and, in accordance with
section 16 of the Bail Act, the Magistrate fixes the amount in which the surety is to be bound with a view to his entering into
his recognisance subsequently, the Magistrate shall, in the meantime, commit the accused to custody in accordance with
paragraph (a) of this subsection.

(3) The commitment shall be in the form set out in the First Schedule.

(4) Nothing herein shall be construed to prevent the Magistrate from granting bail to the accused person if the
offence charged is of a bailable nature.

(5) In every case in which a Magistrate discharges an accused person on a preliminary enquiry, he shall, if required
to do so by the Director of Public Prosecutions, transmit forthwith to him the record of the proceedings, and if the Director
of Public Prosecutions, on perusing and considering the evidence, is of opinion that the accused ought not to have been
discharged, he may apply to a Judge of the High Court for a warrant for the arrest and committal for trial of the accused
person.

(6) If the Judge is of opinion that the evidence, as given before the Magistrate, was sufficient to put the accused
person on his trial, he may issue a warrant for the arrest of the accused person and for his committal to prison for trial, there
to be kept until discharged in due course of law or granted bail, and every person so proceeded against shall be further
prosecuted in the like manner as if he had been committed for trial by the Magistrate by whom he was discharged.

(7) The requisition to the Magistrate by the Director of Public Prosecutions for the record of the proceedings shall
be made within three months of the discharge of the accused person and the application to the Judge for the warrant for
arrest and committal for trial of the accused person shall be made within six months of the discharge of the accused person.

(8) Notwithstanding subsections (5), (6) and (7), the Director of Public Prosecutions or the Deputy Director of
Public Prosecutions may prefer an indictment whether or not a preliminary enquiry has been conducted only in the
following instances: (a) where at the close of an inquest, a Coroner is of the opinion that sufficient grounds are disclosed for
making a charge on indictment against any person pursuant to section 28 of the Coroners Act; (b) where a co-accused is
arrested before the date fixed for the trial of a co-offender who has already been indicted and it is desired to join them both
28- Bail
in the same indictment; (c) where a Magistrate has heard evidence and the depositions taken before him disclose a prima
facie case and he is unable to complete the preliminary enquiry because of his: (i) physical or mental infirmity; (ii)
resignation; (iii) retirement; or (iv) death;
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 (1) A Magistrate may grant bail in accordance with the Bail Act, to any person charged with an offence.

(2) Where bail may be granted or refused in the discretion of the Magistrate, such discretion may be exercised at
any stage of the proceedings.

(3) Whenever the preliminary enquiry is for any cause adjourned, the Magistrate may, upon such adjournment
and subject to section 5 of the Bail Act, remand the accused person in custody by committing him to prison or to
such other safe custody as the Magistrate thinks fit and the time fixed for the resumption of the trial shall be
that at which he is required to appear or be brought before the Court in pursuance of the remand.

(4) If an accused person who has appeared and has been granted bail (either on the recognisance of sureties or
on his own recognisance) to appear at any adjournment, fails to appear according to the condition of the
recognisance, the Magistrate before whom he ought to have appeared may issue a warrant for his
apprehension, whether there has been any complaint in writing and upon oath or not, and may also declare the
recognisance to be forfeited.

(5) Where a recognisance is declared to be forfeited, any Magistrate may forthwith or at any time after the
declaration issue a warrant committing any person liable, whether as principal or surety, under the recognisance
to prison for any term not exceeding two months unless the amount due under the recognisance and also, if the
Magistrate thinks fit, the costs of the commitment and conveying of the person to prison (the amount of such
costs being ascertained and stated in the warrant) are sooner paid.

(6) The recognisance shall be in the form set out in Form 1 in the Second Schedule.

30- Bail on committal for trial

(1) If an accused person who is committed for trial is granted bail, the recognisance of bail shall be taken in
writing either from the accused person and one or more sureties or from the accused person alone, in the
discretion of the Magistrate, according to the Bail Act, and shall be signed by the accused person and his
surety or sureties, if any.

(2) The condition of such recognisance shall be that the accused person shall personally appear before the
Court at any time from the date of the recognisance, to answer to any indictment that may be filed against
him in the Court, and that he will not depart the Court without leave of the Court, and that he will accept
service of any such indictment at some place to be named in such condition.

(3) The recognisance may be in the form set out in Form 2 in the Second Schedule.

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 31- Conveying accused to prison after committal.

(1) Where an accused person who is committed for trial is not released on bail, a constable shall convey him to
the prison, and shall there deliver him, together with the warrant of commitment, to the Keeper of the prison,
who shall thereupon give the constable a receipt for the accused person, which shall set forth the condition in
which the accused person was when he was delivered into the custody of the Keeper.

(2) It shall not be necessary to address any warrant of commitment under this or any other section of this Act
to the Keeper of the prison, but, upon delivery of any such warrant to the Keeper by the person charged with
the execution of the warrant, the Keeper shall receive and detain the person named in the warrant (or detain
him, if already in his custody) for the period and for the purpose as the warrant directs. In case of
adjournments or remands, the Keeper shall bring the person, or cause him to be brought, at the time and
place fixed by the warrant for that purpose, before the Magistrate.

(3) This section shall apply to every person who is committed to prison under any provision of this Act.
33- Court of Judge may bail accused

Subject to the Bail Act, the Court or a Judge may at any time, on the petition of an accused person charged
with an offence, grant him bail, and the recognisance of bail may, if the Court or the Judge so directs, be taken
before any Magistrate.

34- Apprenension of accused person on bail but about

Where an accused person is bailed in the above manner, the Magistrate by whom he is bailed, or any other
Magistrate, may, if he sees fit, on the application of the surety or of either of the sureties of such person, and
on information being laid in writing and upon oath by the surety, or by some person in his behalf, that there is
reason to believe that the person so bailed is about to abscond for the purpose of evading justice, issue his
warrant for the apprehension of the person so bailed, and afterwards, on being satisfied that the ends of
justice would otherwise be defeated, commit such person when so arrested to prison until his trial, or until he
produces another sufficient surety or other sufficient sureties, as the case may be, in like manner as before.

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37- Power to revoke or require higher bail

(1) Where an accused person released on bail by a Magistrate is indicted by the Director of Public
Prosecutions for an offence which is not bailable by a Magistrate, the Magistrate shall, on being
informed of the fact by any police officer of the First Division of the Police Service, issue his warrant
for the arrest of the accused person and commit him to prison in the same manner as if he had been
originally committed for trial for the offence for which he is indicted.
(2) For the purposes of this section, a person shall be deemed to be indicted when the indictment
against him has been filed in the High Court.
(3) Where an accused person has been released on bail by a Judge or a Magistrate, and circumstances
arise which, if the accused person had not been admitted to bail, would justify the Judge or
Magistrate in refusing bail or in requiring bail of greater amount, the Judge or Magistrate may, on
the circumstances being brought to his notice by any police officer of the First Division of the Police
Service, issue his warrant for the arrest of the accused person, and, after giving the accused person
an opportunity of being heard, may either commit him to prison to await trial or grant him bail for
the same or an increased amount, as the Judge or Magistrate may think just.

38- Place of commitment.

All persons committed to prison under this Act shall be committed to the Port-of-
Spain Prison, or to such other prison within the district in which they have been
committed as may have been appointed by the President.

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 NOTE
1) There may also be a constitutional right to bail.

2) Bail applications are made orally at first hearing, but may be renewed at
subsequent hearings if there is a change of circumstances.

3) Note that statute in various jurisdictions allow for bail when a person has been
charged and also for bail after conviction and appeal. Statute may also allow the
police to grant bail at the police station.

4) Statute also sets out which offences are non-bailable and for which offences
only a judge may grant bail (Thelston Brooks v The Attorney General).

Facts:

In the summary of facts provided by the prosecution, it becomes clear that killing of the victim from stab wounds
occurred during a fight involving the victim, the accused and at least one other person who is also charged with the
victim‟s murder. An eyewitness (“witness A” ) who was also in the fight, speaks of another person, ( the coaccused)
running towards the fight with a knife and stabbing the accused in his back. Witness A then ran away with the co-
accused running behind him. Another witness (witness B) speaks of seeing words exchanged between the
deceased, the Applicant and the co-accused, then the deceased and the co-accused beginning to fight. Witness A
then joined in the fight and whilst the deceased and the co-accused were on the ground, the deceased was over the
co-accused. He then saw the Applicant come from behind the deceased‟s back and saw stabbing motions to the
deceased back. It is not clear whether the stabbing motions were made by the Applicant. Other witnesses also
speak of at least four persons in the fight – the deceased, the Applicant, the co-accused and witness A; and
that when witness A ran away, the co-accused ran behind him whilst the Applicant and the deceased remained
fighting on the ground.

Applicant, a youngster who is resident and domiciled in Anguilla. He was arrested and charged with the offence of
murder of another youngster who allegedly died from stab wounds following an incident which occurred. He was
thereafter held on remand at Her Majesty‟s Prison.

• Based on the Magistrate‟s Code of Procedure Act the power to admit an accused to bail is vested in a
judge of the High Court and is discretionary.
• The Applicant sought the exercise of that discretion in his favour for an order that he be admitted to bail on
certain conditions.
• The basis of his application being his constitutional right to liberty and the presumption of innocence he
exercise of a judge‟s discretion in admitting an accused person to bail calls for a balancing of the scales by
weighing the interests of an accused person and his fundamental rights as guaranteed under the
Constitution on the one hand, and the interest of the rights and freedoms of others and the public interest,
being the sole qualifications on the said rights, on the other.
• It was stated that the proper test of whether bail should be granted or refused was whether the defendant
will appear for trial and is not to be withheld merely as a punishment.

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 • It was made clear that the onus is not on the detainee, but is on the party seeking to deprive him of his
liberty. Whilst the seriousness of the offence and the severity of the penalty, if convicted, provide
grounds for refusal of bail, they do not do so in and of themselves, and are to be treated as factors to
be taken into account in arriving at a determination as to whether in all the circumstances itis
necessary to deprive the applicant of his liberty.
• Five grounds for refusing bail well recognised by the European Court of Human Rights:
“the right to personal liberty, although not absolute, is a right which is at the heart of all political
systems that purport to abide by the rule of law and protects the individual against arbitrary
detention”
These grounds are as follows:
o (i) the risk of the Defendant absconding bail,
o (ii) the risk of the Defendant interfering with the course of justice,
o (iii) preventing crime,
o (iv) preserving public order, and
o (v) the necessity of detention to protect the Defendant.
• There were no other matters in respect of which the applicant may be considered a flight risk.
• Interference with the course of justice- Though the prosecution stated that numerous eye witnesses
were reluctant to talk, no evidence that if granted bail the applicant would affect this or any ongoing
investigations
• Prevention of crime – Police certificate showed no that applicant had no criminal involvements or
infractions of any kind, supervised both at work and at home.
• Standard of proof applicable - that the civil standard ought to be the applicable standard to bail
applications and not the criminal standard since in such applications there may be many factors and
circumstances which though highly relevant may be incapable, at such an early stage of the
proceedings, of proof beyond a reasonable doubt.

Holding:

The balance lied in favour of the grant rather than the refusal of bail to the Applicant

5) A judge may grant bail following a magistrate’s refusal to grant bail, or he may
vary the conditions of bail. The magistrate has a duty to inform a defendant of
his right to apply to a judge in chambers for bail.
6) A magistrate has a duty to provide written reasons for refusal to grant bail. This
is
codified in jurisdictions such as St. Lucia, Barbados and Trinidad and Tobago.
7) Bail on appeal after a conviction by a jury is not a right, since there is no longer
a
presumption of innocence (David Douglas v The State, Singh v The State).
8) A defendant can be granted his own bail or a bail with surety/sureties (The State
v Mervyn Lezama).

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CASES
Thelston Brooks v The Attorney General
David Douglas v The State * couldn’t find the case

• It has never been the practice of this Court to grant bail to an applicant after he has been
convicted and sentenced to imprisonment unless in very exceptional circumstances."
• In a comprehensive review of English and Caribbean cases, Persaud J.A. in Cr. App. No. 5
of 1986 David Douglas v. The State, has set out a number of factors gleaned from the
authorities which a Court may take into account in determining whether very
exceptional circumstances exist. Two of these factors have been raised in this
applications i.e.
o (a) the possibility that the sentence will have been served before the appeal is
heard;
o (b) the real possibility of success of the appeal.

Singh v The State **

The State v Mervyn Lezama

• The Applicant was previously granted bail by another Judge in Chambers in the sum of $150,000
with a surety to be approved by the Registrar of the Supreme Court.
• The Applicant having been unable to get the necessary approval by the Registrar, has filed a fresh
application to the High Court seeking to have this court approve his common law wife Ms Asha
Salickram as his surety
• Having approved the common law wife as the surety it was brought to the Courts attention shortly
after the hearing was completed that the Certificate of Title appeared to have been used to secure
bail for 3 other persons.
• The Certificate of Title although used to take bail was now clear as the persons who the common
law wife had taken bail for previously had either won their cases or in one particular case the bail
had been revoked and accordingly her obligations to that person was at an end.

Issues:

• 1. What matters the Court should take into account when asked to approve a person as a surety
• 2. What procedure should the court follow when dealing with applications to have the court
approve a surety.
• 3. Does the fact that someone uses a particular piece of property to secure bail preclude that
person from using that same piece of property to secure bail for another person.

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 • As a general rule a Court (whether a Judge, Magistrate or a Justice of the Peace at a police station)
when determining whether or not to grant bail must address its mind to a number of matters.
• Where a Court decides to grant bail with a surety for the purpose of securing a persons surrender to
custody, it becomes necessary for the court to specify a relevant person who will ensure that
recognizance of the surety is properly entered into.
• If no person is specified by the Court, Section 16 (4) of the Bail Act mandates certain specified persons
to ensure that recognizance of the surety is properly entered into. The Bail Act Chap 4:60 outlines a
number of provisions (see below) that regulate the manner in which the grant of bail with a surety
should be dealt with.

Determining Suitability
Once a Court has set bail with a surety to be approved, the party entrusted with the discretion whether
to approve a particular person as a surety has to exercise that discretion judicially.

Jurisdiction of the Court granting Bail to Approve a Surety

It appears that where a particular Court sets bail with a surety and requires the recognizance to be
entered before a particular person it is not open to the party wishing to have a particular surety
approved to apply to the same Court that made the order for bail unless the person designated to
approve the surety (pursuant to sub section 4) has declined to take the recognizance because he/she is
not satisfied with the surety’s suitability.
It is only after being declined that the party seeking to act as surety can apply to the original court that
fixed the recognizance.

Procedure to approve a surety.

Once an application is made to have a person approved as a surety, the decision maker whether it be a
Judge, Magistrate Registrar Clerk of the Peace or Justice of the Peace must have information on a
number of matters before they can properly exercise their discretion. The information includes the
matters outlined in the Statutory Declaration found at Schedule 2 of the Bail Act as well as the matters
outlined in Section 16 (2) a of the Act. By putting this information before the Court prior to the hearing
of the application assists in several ways, it allows the prosecution to verify the applicant’s antecedents
as well as it allows the Court staff to verify whether the prospective surety has ever taken bail in other
courts throughout the country. Further by having a sworn declaration which specifically deals with the
matters outlined in section 16 (2) allows the court to discern whether a persons providing the
declaration may be seeking to mislead the Court.

In this case the applicant seeking to be approved was able to satisfy the Court that out of the three
persons for whom bail had been taken previously, had been either discontinued and or revoked
thereby freeing herself of the previous obligations.
There being no question that the applicant was the common law wife of the person seeking bail, that
there was property sufficiently valued to cover the bail and all the material necessary for the court to
exercise its discretion was before the court and having ensured that all the necessary checks had been
completed the Court approved Ms Asha Salickram to act as surety.

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The Bail Act Chap 4:60 outlines a number of provisions that regulate the manner in which the grant of
bail with a surety should be dealt with. In particular sections 16 of this Act provides as follows:-

Section 16.

(1) This section applies where a person is granted bail in criminal proceedings on condition that he
provides a surety for the purpose of securing his surrender to custody.

(2) In considering the suitability of a proposed surety referred to in subsection (1), the Court shall—

(a) have regard, amongst other things, to—

(i) the surety’s profession, occupation, trade or business;

(ii) his character and his previous convictions, if any; and

(iii) his proximity, whether of kinship, place or residence or otherwise, to the person for
whom he is to be a surety; and (b) require the surety to make a statutory declaration in
the form set out in the Second Schedule.

(3) Where a Court grants a person bail in criminal proceedings under subsection (1), but is unable to
release him because no surety or no suitable surety is available, the Court shall fix the amount in which
the surety is to be bound and subsections (4) and (5) shall apply for the purpose of enabling the
recognisance of the surety to be entered into subsequently.

(4) A recognisance of the surety under subsection (3) may be entered into before such of the persons or
descriptions of persons as the Court may by order specify or, if it makes no such order, before any of the
following persons:

(a) where the decision is taken by a Magistrate’s Court, before any Magistrate or Clerk of the
Peace;

(b) where the decision is taken by the High Court or the Court of Appeal, before any of the
persons specified in paragraph (a) or, where the Rules of the Supreme Court so provide, by a person of
such other description as is specified in the Rules. Page 5 of 14

(5) Where a surety seeks to enter into his recognisance before any person in accordance with subsection
(4), but that person declines to take his recognisance because he is not satisfied with the surety’s
suitability, the surety may apply to—

(a) the Court which fixed the amount of the recognisance in which the surety was to be bound; or
(b) a Magistrate’s Court for the district in which he resides, for that Court to take his recognisance
and that Court shall, if satisfied of his suitability, take his recognisance.

(6) Where, in pursuance of subsection (4), a recognisance is entered into otherwise than before the Court
that fixed the amount of the recognisance, the recognisance shall have the full force and effect as if it had
been entered into before that Court.

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Zambar Baksh v The Magistrate First Court (unreported) Mag App No 107/82,
Trinidad and Tobago,

• The Trinidad and Tobago Court of Appeal considered an appeal by a bailor against an order of
forfeiture of recognizance in the sum of $5,000 for failure to produce a defendant at the relevant
date of hearing.
• In dismissing the appeal, the court held that the test in determining whether the bond should be
forfeited was whether the bailor was guilty of ‘due diligence’ in attempting to secure the
appearance of the defendant.
• While the bailor did make efforts to secure the appearance of the defendant, he did not do all that he
could, such as to keep personally in touch with her, to bring her before the court.
• The court further confirmed that in the absence of express statutory provision that permitted
forfeiture of part of the bond (as in England), the full sum must be forfeited.
• The Bahamas, Barbados, Jamaica, and Trinidad and Tobago Bail Acts and the St Lucia provisions
now enable forfeiture of only part of the security.

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