The Constitution of The Commonwealth of The Bahamas provides its citizens with various indelible rights and protections. Section 20 of the Constitution makes provisions to secure protection from the law,; in particular, Section 20(2)(a) provides that “Every person who is charged with a criminal offence – shall be presumed to be innocent until he is proved or has pled guilty.” Even though the accused’s presumption of innocence an indelible right in the Constitution, why does the burden fall on the accused to prove their innocence when a bail application is considered, and thus by extension, proving their innocence to the public who has already branded the accused as guilty before any trial has begun?
The primary purpose of bail for an accused is to ensure that they attend trial. However, given the circumstances under which the accused must convince the Court to grant bail in their favour, the accused’s presumption of innocence must play a pivotal role in the Court’s consideration.
The Court of Appeal case of Jevon Seymour v The Director of Public Prosecutions SCCrApp No. 115 of 2019 involved reviewing the use of judicial discretion by a Supreme Court Justice denying bail to Mr. Seymour Mr. Seymour was charged with one count of murder and two counts of attempted murder under the Penal Code of the Bahamas and found in the schedule known as Part C offences (as found in the Penal Code of the Bahamas). Previously, offences that fell under the schedule known as Part C offences such as murder and attempted murder were not bailable. However, Sections 4(2), (2A), and (2B) of the Bail Act (as amended) set out a special regime that now governs the grant of bail to persons charged offen under Part C offences. In essence, Section 4(2) of the Amended Bail Act provides the Court (i.e.., Supreme Court or Court of Appeal) with the power to grant bail to an accused charged under Part C ces. This occurs once the Court is satisfied that the person charged has not been tried before a reasonable time; unlikely to be charged within a reasonable time or considered the relevant factors, including the belief that the accused may not appear for trial, commit an offence on bail or interfere with witnesses or obstruct the course of justice. In the instant case, there was no need for the Court to consider whether Mr. Seymour would be charged or tried within a reasonable period as his bail application was made two months after he had been arraigned before the Court. The Court of Appeal deliberated as to whether the learned Judge exercised the statutory discretion conferred upon him under Section 4(2)(c) of the Bail Act (Amended) after considering the evidence before him and whether the circumstances were fit to deny Mr. Seymour pre-trial bail. The Court of Appeal ultimately determined that the offences were serious and that the evidence to support the charges against the accused was strong.
Additionally, regarding the perceived likeliness that the accused may abscond when considering the penalty of the offences, the learned Judge should have also considered whether the use of conditions could have mitigated such risk. They further determined that the imposition of conditions such as an electronic ankle monitor, reporting conditions, or being subject to a curfew should have been considered as a way to almost eliminate the possible risk of absconding. Mr. Seymour’s appeal was allowed, and he was granted bail. Mr. Seymour was subsequently found not guilty on the count of murder and the two counts of attempted murder following a jury trial in June, 2021.
The decision in Jevon Seymour v The Director of Public Prosecution (supra) was instrumental as the Court affirmed that accused persons who originally had “”no right”” to bail under Section 4 of the Bail Act, 1994 were now entitled to the same. Such a decision is indeed a step in the right direction towards preserving an accused’s presumption of innocence.
While the Court has determined that everyone is ultimately entitled to bail, mounting public scrutiny regarding who should get bail (especially from those who support the victims of the alleged offences, the family of the accused, and the general public shifts from an accused being viewed as innocent until proven guilty to guilty until proven innocent. It is not uncommon for the comment section on various social media platforms to be filled with remarks from persons who question granting bail for persons accused of serious crimes. In many instances, the public has already deemed this person guilty based on a television news report or a newspaper headline without hearing any evidence supporting or against the charge. This in itself presents a danger as the very same people who form such an opinion may be the ones who sit on the jury panel when the matter is brought to trial.
Therefore, the presumption of an accused’s innocence prior to being proven guilty or pleading guilty trumps all other considerations that are placed before the Court. While the Court itself can impose mitigating conditions to ensure that the accused appears for trial, I believe that the use of judicial discretion and the accused’s presumption of innocence must be carefully balanced when determining any subsequent bail conditions.