In Barbados, a person charged with an offence or convicted of an offence is entitled to bail, subject to the Bail Act Cap. 122A (“the Act”). The fundamental test in determining whether to grant bail is whether the accused will return to court for the determination of the matter. The Court also takes into account other factors when exercising its power to grant bail or not to grant bail.
According to Section 5 (2) of the Act, the Court must take into consideration relevant factors including the following:
(a) “the nature and seriousness of the offence or default, and the probable method of dealing with the defendant for it;
(b) the character, antecedents, associations and community ties of the defendant;
(c) the defendant’s record as respects the fulfilment of his obligations under previous grants of bail;
(d) the strength of the evidence of his having committed the offence or having defaulted, except where the defendant’s case is adjourned for inquiries or a report; and
(e) the length of time the defendant would spend in custody if the court were to exercise the power conferred on it by section 218A of the Magistrate’s Courts Act” (power to remand the defendant in custody).
According to Section 5 (1) of the Act, the Court may refuse to grant an accused person bail if it believes that the accused person would fail to surrender to custody; reoffend or interfere with witnesses. Further, the Court may not grant bail if it is satisfied that the accused should be kept in custody for his own protection; for the protection of the community or if he is a child or young person, for his own welfare. The Court may also deny to grant bail to a person who is charged with an offence alleged to have been committed while on bail.
The Court may grant bail with conditions. The Court may, before releasing the defendant, require him to provide a surety to ensure his surrender to custody. Further, the Court may require a defendant to surrender his passport, report to a police station on appointed days and at appointed times, order the defendant to comply with any requirement to ensure that: the defendant surrenders to custody, does not commit an offence while on bail, does not interfere with witnesses or otherwise obstruct the course of justice or, makes himself available for the purpose of enabling inquiries or a report of any medical examination to be made to assist the court in dealing with him for the offence. If a defendant who is on bail fails to surrender to custody, the Court may issue a warrant for his arrest.
It is important to note that a magistrate does not have the power to grant bail to a person accused of murder, treason, high treason or an indictable offence under the Firearms Act. A person accused of the above offences may only be granted bail by a High Court Judge.
Where bail is denied, the defendant may reapply for bail at the Magistrate’s Court and may also apply for bail at the High Court. If the Court does not grant bail to a person who has been charged with an offence punishable by imprisonment, the accused person will be remanded until the determination of his case or until bail is subsequently applied for and granted.
The recent decision by Government to ban the importation of Unmanned Aerial Vehicles (UAVs) for one year conjures up in one’s mind book burning and slavery.
At the same time one reflects on Government’s very strident calls for Barbadians to be risk takers and entrepreneurs. Much to its credit Government recently passed the Cultural Industries Development Act and has also facilitated a programme in human resources development for which film and video has been a significant beneficiary.
And so we find ourselves in a perpetual conundrum where our ambitions of wealth creation are thwarted by our puritan passion for regulation.
Those in the trenches of entrepreneurial endeavor might become overwhelmed by Barbados’ painful and desperate struggle to keep pace with its competitors while embracing an irrational fear that the majority of the population if given too much freedom will cause untold harm and bring calamity upon the nation.
There is no doubt that the establishment often has a difficulty in dealing with new technologies and harbor notions of all manner of evil which might attend if new technologies were to run rampant amongst the people. The fear, which caused the burning of books throughout history, is still manifestly with us.
Regulating Commerce – How much is too much?
Barbados has a long sad and unresolved history with the regulation of commerce, for Barbados’ modern economy was based on a sugar industry, facilitated by legislation, which made unpaid labour lawful.
While Barbadians shy away from examining their history, sensible people do so to avoid making the mistakes of their ancestors and indeed to learn from them.
The reliance on unpaid labour came to an end, not because it was considered wrong but primarily because it no longer made commercial sense to the British.
While the British Parliament was eager to bring an end to this abrogation of human rights the Barbados Parliament thought it made more commercial sense to insist on reparations for the end of chattel slavery and to implement a tenantry system in a country where they owned substantially all of the land. The call by the British Parliament to make land available to the newly emancipated people fell on deaf ears.
In the 1900s small business people suffered from over regulation under the Hawkers’ Registration Act. Apart from the annual registration, the payment of a fee and the presentation of a certificate of good character they were also restricted in how they could ply their trade. This regime was inapplicable to companies including foreign companies and plantations. It was deemed to be unlawful to sell in any “road, street, lane or alley “, a situation which limited the number of sites from which they could act as vendors.
The entrepreneurs of the time succeeded in their pursuit of wealth in spite of Parliament even though they were often relegated to the ownership of rab land – the land for which the powerful had no use.
More recently In the 2000s it was felt that new government policies precipitated the demise of the re-conditioned car business, which had seen a number of new entrepreneurs enter the market. It was through access to the Internet that Barbadians realised that they could buy better quality and cheaper cars on line.
Yes, there were questions of under-invoicing but remarkably the solution was to kill that industry – for Barbadians remain fervent about the death penalty. The reconditioned car business now remains largely amongst the few traditional car dealers in Barbados.
Those entrepreneurs died.
Our history demonstrates that the regulation of commerce is one of the most effective means of determining which class of people will have access to the wealth in a country.
And arguably legislation is one of the most powerful protectionist tools there is at the disposal of modern governments.
The issue to be addressed in 2016 is whether the regulation of UAVs will follow the same path of many other regulatory initiatives in Barbados where the early entrants who might have greater access to capital are protected by the Barbados Parliament or Cabinet in limiting the number of individuals who can actually participate in the market.
Inefficiencies and Corruption
Our undocumented history also shows how overregulation and inefficiency breeds corruption. The truth is that when systems function well little thought is given to offering a bribe. In some sectors the restraint of trade through overregulation has caused the bribery of government officials in order to access licenses and permits to become intrinsic to the sector.
This state of affairs has also created a high price for such permits and licences – the proceeds of which never find their way into Government coffers. Many of us fail to note in discussing the prosperity of those countries high in human or economic development that those countries also managed to minimise corruption. Corruption and small fledgling economies like that of Barbados do not go hand in hand.
Which historical path will we choose to create?
Benchmarking Domestic Regulation
When Barbados participated in the negotiation of Protocol II to the Treaty of Chaguaramas, the Free Trade Area of the Americas and the World Trade Organisation domestic regulation was always one of the most controversial issues on the agenda. Domestic regulation was the last barrier to free trade and the last protectionist tool in the armour of countries.
Thus Article VI of the General Agreement on Trade in Services at paragraph 4 while recognising the importance of regulating certain industries, also sets our criteria for determining whether regulation is reasonable:
The regulations must be based on objective and transparent criteria, such as competence and the ability to supply the service.
They should not be any more burdensome than necessary to ensure the quality of the service.
In the case of licensing procedures those procedures should not in themselves be a restriction on the supply of the service.
These principles are instructive and it is recommended that our policy formulation with respect to UAVs should take them into account.
Regional and international trade raises the question as to how foreign business people will be treated when they wish to bring UAVs into Barbados for their film and commercial shoots. Will they be allowed entry?
Barbados’ dependence on foreign investment has in some instances caused it to neglect the efficient workings of its bureaucracy. Foreign investors are often allowed to side step regulatory restrictions.
This was always a short-sighted and embarrassing approach taken by our Governments.
That approach was never going to work and this is now evidenced by Barbados’ extremely low ranking as a country in which to do business. Governments must do the hard work and make Barbados efficient for those who live in Barbados and investors will benefit automatically.
The newly emancipated people of Barbados were always viewed with suspicion in their efforts to engage in commerce. In setting up their wholesale and retail businesses they were often suspected to be fronts for trading in stolen goods. Perhaps that lingering suspicion remains with us in the emerging UAV sector.
We can only hope that as a nation we do not argue for risk taking and at the same time implement oppressive regulation. We can only hope that we do not continue to smother and then revive entrepreneurship, only to smother it again – it is a most inhumane and brutal form of torture.