The mechanism being implemented by police officers after a Judge/Magistrate grants bail to a defendant has come into question in what has been described as the “infringement of a defendant’s constitutional right to bail,” by at least one (1) criminal defense attorney.
Longstanding Barrister-at Law Anselm Clouden raised this issue during the opening of the September Criminal Assizes, pointing out that while the Criminal Procedure Code outlines conditions for granting of bail, which is left up to the discretion of the Magistrate or presiding judge there are instances where police officers have been overstepping their boundaries by denying bail granted to a defendant in a case where the sufficiency of the surety is in question.
Clouden shared his concern with reporters last week Tuesday as he sought to explain how bail is processed for a defendant, who is granted same by a Judge or a Magistrate.
“When the Magistrate/Judge grants bail, the defendant through his/her surety goes to the police station or court office and presents his document. The police (would) then vet the document and from time to time refuse to grant bail on the basis that they want the original and not a certified copy of the original. Now, that is unfair and it abrogates the constitutional right to liberty,” he told reporters.
“And that procedure is wrong,” he said explaining that it is “only up to the judge or the magistrate in the exercise of his/her discretion to determine the sufficiency of the surety (when granting bail) and not the police because the police at that stage of the adversarial system of criminal justice is adverse to the interest of the defendant…now it is the magistrate or the judge to determine whether they would accept documents, and what type of documents.”
Attorney Clouden cautioned that “for every moment a defendant is detained unlawfully, he (or she) has a right against the state for false imprisonment.”
He charged that the situation is further compounded since about two-thirds of Grenadian land papers”are saddled with a debt or mortgage to a financial institution”.
“Two-thirds of Grenadian land papers are encumbered to the bank or credit union and therefore when an accused person presents a copy of that document to the police and the police refuse to accept it, the police has no authority whatsoever in law to determine the sufficiency of the surety,” he said.
The seasoned criminal defense attorney suggested that in such instances, the matter should go back to the magistrate or judge for consideration.
“It is the magistrate that granted bail, the matter must go back before her and she is to decide whether the surety is sufficient or make alternative accommodations to entertain the defendant on bail,” he added.
Attorney Clouden said he is prepared to take the matter to the Court of Appeal if it is not urgently addressed.
Grenada is among several Caribbean countries without Bail Acts, however, conditions for the granting of bail is outlined in the Criminal Procedure Code, Cap 72 sections 47-49 and the Juvenile Justice Act 24 of 2012.