DerekA­chong

The re­cent mur­der of 23-year-old Ju­di­cia­ry clerk An­drea Bharatt unit­ed the na­tion against the scourge of gen­der-based vi­o­lence while si­mul­ta­ne­ous­ly high­light­ing glar­ing de­fi­cien­cies in the crim­i­nal jus­tice sys­tem. 

Re­ports of Joel Bal­con, one main sus­pect in Bharatt’s ab­duc­tion and even­tu­al death, hav­ing a crim­i­nal record of 70 charges be­fore he died in po­lice cus­tody, sparked mas­sive pub­lic out­rage with most vig­ils and protests, which fol­lowed her death, call­ing for crim­i­nal jus­tice re­form in­clu­sive of the de­nial of bail for per­sons charged with vi­o­lent and sex­u­al crimes against women and chil­dren. 

Much of the anger and out­rage was aimed at lawyers, who rep­re­sent peo­ple ac­cused of heinous crimes, and at ju­di­cial of­fi­cers, who have the dis­cre­tion to grant them bail. 

Guardian Me­dia spoke with re­tired se­nior mag­is­trate Lu­ci­na Car­de­nas-Ra­goo­nanan to delve deep­er in­to the is­sue of bail and com­mon mis­con­cep­tions over it. 

Car­de­nas-Ra­goo­nanan, who re­tired in 2018, start­ed the in­ter­view at her of­fice at Dun­can Vil­lage, in San Fer­nan­do, by quot­ing Sec­tion 5 (2)(f)(iii) of the Con­sti­tu­tion, which bars Par­lia­ment from pass­ing laws that de­ny per­sons rea­son­able bail with­out just cause. 

“We need to un­der­stand that gen­er­al­ly, the premise is that a man is in­no­cent un­til proven guilty,” Car­de­nas-Ra­goo­nanan said. 

Car­de­nas-Ra­goo­nanan then point­ed to the Bail Act 1994 and sub­se­quent amend­ments, which she said pro­vid­ed guid­ance to ju­di­cial of­fi­cers when grant­i­ng bail. 

She not­ed that the leg­is­la­tion does not pro­vide for bail for peo­ple charged with mur­der, trea­son, and pira­cy, and hi­jack­ing, which all car­ry the manda­to­ry death penal­ty up­on con­vic­tion.

The leg­is­la­tion al­so pre­cludes ju­di­cial of­fi­cers from con­sid­er­ing bail for peo­ple charged with drug traf­fick­ing and oth­er vi­o­lent crimes pro­vid­ed that their cas­es do not start with­in 120 days of them be­ing charged. 

While she ac­cept­ed that start­ing a case with­in the statu­to­ry pe­ri­od is pos­si­ble, she not­ed that of­ten times it is not. 

Al­though she ad­mit­ted that well-doc­u­ment­ed de­lays with­in the crim­i­nal jus­tice sys­tem are due to a num­ber of is­sues in­clud­ing wit­ness­es, de­fence at­tor­neys, and foren­sic test­ing, she main­tained that the pros­e­cu­tion is fre­quent­ly to blame. 

“I would say un­for­tu­nate­ly there are too many mat­ters in which the pros­e­cu­tion is not ready to pro­ceed...If you bring some­one be­fore a court, you are not tak­ing them for a ride down the road. Know that you have to in­for­ma­tion be­cause it is some­one’s life at stake and it needs to be be­yond a rea­son­able doubt,” Car­de­nas-Ra­goo­nanan said. 

She went on: “What is a mag­is­trate re­al­ly to do when you see a man charged in 2016 with pend­ing mat­ters from 2006? Why is this still here? Why is it noth­ing is be­ing done? You have to give con­sid­er­a­tion for bail in those cir­cum­stances.” 

Car­de­nas-Ra­goo­nanan ad­mit­ted that some­times the con­stant de­lays led to the cas­es be­ing dis­missed by mag­is­trates for want of pros­e­cu­tion. 

“There is the thing that if we stay long enough even­tu­al­ly it will go away or be dis­missed. It un­for­tu­nate­ly hap­pens. It is not be­cause you (the mag­is­trate) do not want to do the work but be­cause you can’t,” Car­de­nas-Ra­goo­nanan said, as she not­ed that Crim­i­nal Pro­ce­dure Rules in­tro­duced by the Ju­di­cia­ry seeks to rec­ti­fy such de­lays by set­ting strict time-lines and penal­ties for non-com­pli­ance. 

Ad­dress­ing the con­sid­er­a­tions made by a mag­is­trate or judge for some­one en­ti­tled to bail, Car­de­nas-Ra­goo­nanan ad­mit­ted that crim­i­nal records com­plied by po­lice are es­sen­tial to as­sist in de­ter­min­ing whether the ac­cused per­son is like to ab­scond, in­ter­fere with wit­ness­es, or com­mit oth­er of­fences whilst on bail.  

How­ev­er, she ad­mit­ted that such records, usu­al­ly pre­sent­ed dur­ing an ac­cused per­son’s first court ap­pear­ance, are some­times not as help­ful as in­tend­ed. 

“You see a crim­i­nal record with things from way back when but that still does re­al­ly tell you any­thing. It is pos­si­ble that some might be com­plet­ed, it is pos­si­ble that some might have been dis­missed, it is al­so pos­si­ble that you might have skipped bail on the oth­er charges and there is a war­rant out for you, but those records do not say that,” she said. 

She ad­mit­ted that a sys­tem with re­al-time up­dates, which could be ac­cessed di­rect­ly by ju­di­cial of­fi­cers, may as­sist. 

Car­de­nas-Ra­goo­nanan ex­plained in sit­u­a­tions where mag­is­trates have con­cerns over the crim­i­nal record pre­sent­ed by po­lice they could de­lay de­cid­ing on bail.  

“It is al­ways best to step qui­et­ly and prop­er­ly so that you have the right in­for­ma­tion be­fore you do any­thing,” she said, as she not­ed that ju­di­cial of­fi­cers could al­so or­der that per­son un­der­go a men­tal health as­sess­ment at the St Ann’s Psy­chi­atric Hos­pi­tal be­fore de­cid­ing on bail. 

Car­de­nas-Ra­goo­nanan was care­ful to note that once bail is grant­ed to a per­son, a ju­di­cial of­fi­cer does not re­view the doc­u­ments sub­mit­ted to ac­cess bail. 

“It is not in the purview of the mag­is­trate to see or check any deed or doc­u­men­ta­tion what­so­ev­er. The court makes an or­der or de­ter­mi­na­tion and sends it to the Clerk of the Peace or now the Mag­is­tra­cy Reg­is­trar,” she said. 

Car­de­nas-Ra­goo­nanan al­so not­ed that ju­di­cial of­fi­cers are en­ti­tled to place con­di­tions on ac­cused per­sons bail such as re­quire­ments to re­port to po­lice pe­ri­od­i­cal­ly, which are de­signed to en­sure com­pli­ance.

Do­mes­tic Vi­o­lence cas­es

Car­de­nas-Ra­goo­nanan al­so ad­mit­ted that ju­di­cial of­fi­cers are un­fair­ly blamed when women with pro­tec­tion or­ders in do­mes­tic vi­o­lence sit­u­a­tions have been crit­i­cal­ly in­jured or even killed in sub­se­quent at­tacks. 

“The thing with do­mes­tic vi­o­lence is un­for­tu­nate­ly when the mat­ter is first brought it is not brought by the po­lice but the vic­tim,” she said, as she not­ed that po­lice be­come in­volve af­ter there is an al­leged breach of such or­ders. 

She said that from her re­cent ex­pe­ri­ence as an at­tor­ney she has been frus­trat­ed by the fact that po­lice of­fi­cers ad­vise vic­tims to pur­sue pro­tec­tion or­ders in court in­stead of in­ves­ti­gat­ing their re­port of abuse first. 

“I am re­al­ly find­ing it con­cern­ing that it is not tak­en as se­ri­ous­ly as it ought to be...I think the po­lice should go to the per­son and do some sort of in­ves­ti­ga­tion. You can go there and find an of­fence,” she said. 

She said that the pro­tec­tion or­der pro­ce­dure was too oner­ous on the vic­tim. 

“Who serves the man? The law still says the vic­tim must serve the man,” Car­de­nas-Ra­goo­nanan said while shak­ing her head. 

She not­ed that the or­der would not be valid un­til the doc­u­ment is served and en­dorsed by the al­leged at­tack­er. 

She al­so ques­tioned why vic­tims had to wait on po­lice to pros­e­cute breach­es of or­ders. 

“Why can’t the vic­tim make a re­port and go to the court, where she ap­plied for the pro­tec­tion or­der in the first place?” she asked. 

“The Mag­is­trate’s Court has ju­ris­dic­tion over crim­i­nal mat­ters so why can’t she come and say he has done x, y, and z as a breach of the or­der which the court has made? The court will then deal with it like all the oth­ers,” she added. 

SIDE BAR

Types of bail

OWN BAIL- Such is usu­al­ly grant­ed in mi­nor crim­i­nal cas­es such as dri­ving of­fences. An ac­cused per­son signs a bond for a spec­i­fied sum, which they would be re­quired to pay to the court in the event they ab­scond be­fore the case is de­ter­mined.  

BAIL WITH A SURE­TY- In such bail, which is most fre­quent­ly grant­ed, per­sons stand as sure­ty and agree to en­sure that the ac­cused per­son at­tends court hear­ings. 

Such per­sons, usu­al­ly rel­a­tives or friends of the ac­cused, use the deed for a prop­er­ty, val­ued equal or high­er than the bail sum, as se­cu­ri­ty. In the event that an ac­cused per­son ab­sconds, the per­son who stands sure­ty will be called up­on to ap­pear be­fore the ju­di­cial of­fi­cer to ex­plain the sit­u­a­tion.

 In the event that the ex­pla­na­tion is not sat­is­fac­to­ry, the ju­di­cial of­fi­cer may or­der the in­di­vid­ual to pay the bail sum, or his/her prop­er­ty would be seized and auc­tioned off to cov­er the amount. 

Such bail has giv­en rise to an il­le­gal and un­reg­u­lat­ed bail in­dus­try, in which pro­fes­sion­al touts of­fer the ser­vices of prop­er­ty own­ers will­ing to stand sure­ty for strangers in ex­change for a per­cent­age of the bail amount.

In most cas­es, the fee is 10 per cent. 

Be­fore bail is ap­proved, court staff are re­quired to call around at all Mag­is­trates’ Courts across the coun­try to de­ter­mine if a deed had been pre­vi­ous­ly used to ac­cess bail in an on­go­ing case. Checks are al­so made of the pro­posed sure­ty as in­di­vid­u­als are not al­lowed to take bail for more than one per­son si­mul­ta­ne­ous­ly. 

CASH BAIL- Un­der this bail, which is some­times grant­ed by ju­di­cial of­fi­cers as an al­ter­na­tive to bail with a sure­ty, the rel­a­tives of ac­cused per­sons are re­quired to pay the court a set amount of cash via cer­ti­fied cheque.

The mon­ey is held in an in­ter­est-bear­ing ac­count and is re­turned with ac­cu­mu­lat­ed in­ter­est once a case is com­plet­ed. This bail is the pre­ferred choice of most ac­cused per­sons, whose fam­i­lies don’t own prop­er­ty or can­not af­ford to pay an il­le­gal bailor.

How­ev­er, it is rarely grant­ed es­pe­cial­ly for se­ri­ous of­fences and to peo­ple with pre­vi­ous con­vic­tions or pend­ing charges at the time.