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.
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.