Minister Malahoo Forte Clarifies Pre-Charge Provision Under Bail Act

The pre-charge provision in the new Bail Act 2022 applies when someone is arrested or detained on reasonable suspicion that he/she has committed an offence that is punishable with imprisonment and more time is needed for investigations.

“It is not that they are arbitrarily detained, not that they are whimsically detained,” said Minister of Legal and Constitutional Affairs, Hon. Marlene Malahoo Forte.

“The very standard that is set out constitutionally speaks to what do you do with them? The provision says that you must consider the question of bail within a period of 48 hours after the arrest or detention,” she noted.

She was addressing a meeting of the Joint Select Committee of Parliament, which is reviewing the proposed Bill at Gordon House on December 1.

Under the legislation, the provision of pre-charge bail allows for persons who have been detained, but do not need to continue to be detained while under investigation, to be granted bail on condition.

The new Bill permits the granting of bail at three stages – pre-charge, upon charge, and post-conviction in defined cases.

Emphasising that the entitlement of bail has not been removed, Mrs. Malahoo Forte noted that bail may be considered by the Justice of the Peace (JP), a constable at or above the rank of Superintendent, who is neither the investigating officer nor the arresting officer.

Further, after considering the specified matter or matters, the official may grant bail to the defendant or may refuse bail.

“It says that when bail is not granted upfront, when bail is not granted outside of court, then you have to bring the person before the court for the question of bail to be determined. And then, it becomes a matter for the court to decide, having assessed all of what the law says,” she noted.

Among the considerations are the stage at which the investigation has reached, the manner in which the investigation has been conducted, whether further time would enable a charge to be preferred, and the grounds on which it is alleged there is reason to believe that the defendant committed an offence.

The court will also assess the conduct of the defendant and reasons given why a charge has not been made.