Bail is rarely granted on a handshake. It comes with obligations, usually with conditions, and often with a relative putting money on the line. This article sets out exactly what those things mean under the Bail Act (Chapter 340) — for the person on bail, and for the guarantor.
What the person on bail must do
Section 17 states two core obligations, and they are short. A person granted bail:
- shall appear at the time and place specified by the bail authority, and at every time and place to which the hearing may be adjourned; and
- shall comply with all conditions of bail fixed under section 18.
That is the whole of it. Everything else — reporting, residence, curfews, non-contact, surrendering a passport — comes in as a condition under section 18.
One duty is easily missed. Under section 15(2), a person granted bail must keep a copy of the bail certificate in his possession at all times until his bail obligations are discharged, unless a lawyer or agent requires it.
Conditions: the five limits the court must respect
Section 18 lets a bail authority impose conditions, including some to be met before release. But it is not open-ended. Before fixing a condition, the bail authority must satisfy itself that it:
- will not cause undue interference with the person’s domestic life;
- will not interfere with the person’s legitimate means of earning a living or making himself available for work;
- will not interfere with rights to political freedom of action or movement, except so far as necessary to ensure he appears at court when required;
- will not cause the person financial hardship; and
- is not unreasonable in all the circumstances.
These are not suggestions. A condition that would cost a man his job, or a cash security beyond a family’s means, is one the Act tells the bail authority not to impose. If it is imposed anyway, section 20 allows an application to vary it — and where a policeman imposes conditions contrary to section 18, section 25 makes him potentially liable in damages, including exemplary damages.
Two more rules sit in section 18. Where a condition must be met before release, the bail certificate must stipulate who verifies compliance (section 18(2)). And unless the certificate says otherwise, any person may perform that condition on behalf of the person granted bail (section 18(3)) — so a wantok can lodge the money.
Guarantors: read this before you sign
A guarantor is “a person who undertakes to see that a person granted bail complies with his bail obligations” (section 1). Section 19 governs the role, and it is more protective of guarantors than most people expect.
- No more than two guarantors may be required (section 19(1)).
- A bail authority shall not require a guarantor at all unless it is of the opinion that the person will not appear or will not comply with conditions unless a guarantor is approved (section 19(2)).
- A court may authorise a commissioned officer or an officer-in-charge to approve guarantors (section 19(3)).
- Approval may not be refused unless the authority is satisfied on reasonable grounds that the proposed guarantor will not honour the undertaking (section 19(4)).
- The guarantor may be required either to lodge an amount of money in support of the undertaking, or to undertake to pay the State an amount if the person fails to appear or comply (section 19(5)).
- Critically, in fixing that amount the bail authority shall take into account the financial means of the guarantor (section 19(6)).
The risk. If the person granted bail fails to appear or comply, the court may order that the money lodged (or part of it) be paid to the State, or that the guarantor pay the amount he undertook to pay (section 19(7)).
The protection. A guarantor affected by such an order may, within 14 days, apply to the court that made it for variation or revocation, and the court “may make any order it considers just” (sections 19(8)–(9)). Fourteen days is short.
Section 21(3) adds more: where there is a guarantor, a court shall not impose bail conditions more onerous on the guarantor without first obtaining his consent. Your exposure cannot be quietly increased behind your back.
What happens if bail is broken
Three consequences can follow, and they can happen together.
1. Revocation (section 21). Where it is alleged there are reasonable grounds for revoking bail and the person appears or is brought before a court, the court shall consider revocation. It must hear all the evidence, including that of the person granted bail and his witnesses. It may then revoke bail and commit the person to a place of confinement, or instead vary the conditions.
2. Forfeiture of security (section 22). Where a person on bail contravenes or fails to comply, a court may forfeit the whole or part of the security. Money undertaken to be paid is deemed a judgement of the court that the person pay the State a sum not exceeding the amount undertaken; a cash deposit may be ordered paid, wholly or partly, into the Consolidated Revenue Fund. Again, a person affected has 14 days to apply for variation or revocation.
3. A separate criminal offence (section 28). A person alleged to have committed an offence carrying imprisonment exceeding 12 months, who has been granted bail and contravenes or fails to comply with his bail obligations, is guilty of an offence. Penalty: imprisonment not exceeding 12 months.
That third one is what people do not see coming. Missing court is not only a problem for your existing case — it can become a fresh charge of its own.
The short version
Bail money is not a fine and not a fee. It is a bond on a promise. The Act keeps conditions proportionate, keeps guarantor amounts within means, and gives both the accused and the guarantor a 14-day right to go back to court if an order bites too hard. The obligations are simple: turn up, every time, and follow the conditions.
Before standing as a guarantor or agreeing to bail conditions, get advice from a lawyer or the Office of the Public Solicitor.