Section 14(1) of the Bail Act No. 30 of 1997 lets a court refuse bail on four grounds: that the person would not appear for trial, would interfere with witnesses or evidence, would offend on bail, or that the offence's gravity may cause public disquiet.
Section 2 of the Act states the principle plainly. Subject to the exceptions set out in the Act, granting bail is to be regarded as the rule, and refusing it the exception. Anyone who has sat through a bail application knows the exceptions do a great deal of work, but the starting point matters: the burden of the argument sits with the party asking the court to keep someone in custody.
Bailable and non-bailable offences
The Act treats the two categories differently, and the difference is one of entitlement rather than degree.
Under section 4, a person suspected or accused of a bailable offence is entitled to be released on bail, subject to the Act's other provisions. Under section 5, a person suspected or accused of a non-bailable offence may be released at the discretion of the court. Entitlement in the first case, discretion in the second.
Section 6 deals with what happens before anyone reaches a courtroom. Where the offence under police investigation is bailable, the officer in charge is not required to produce the suspect before a Magistrate. What happens in the hours before that point is covered separately in the first 24 hours after an arrest. Instead, no later than twenty-four hours after the suspect is taken into custody, that officer must release him on a written undertaking and direct him to appear before the Magistrate on a given date. Section 6(2) makes failing to appear on that date an offence in itself.
The forms bail can take
Section 7(1) sets out what a court may require before releasing someone:
- an undertaking by the person to appear when required
- his own recognisance
- a bond executed with one or more sureties
- a deposit of a reasonable sum of money as determined by the court
- reasonable certified bail of the description the court orders
Where a bond with sureties is ordered, section 7(2) allows the court to permit a money deposit to the credit of the court's account instead. In practice the choice between these is often what decides whether a person actually leaves custody, since a bond a family cannot meet is not much better than a refusal.
The grounds for refusing bail
Section 14(1) is the provision that matters most. It applies notwithstanding anything earlier in the Act, which is why it can override the entitlement in section 4. A court may refuse to release a person, or cancel a subsisting bail order, where it has reason to believe:
- that the person would not appear to stand his inquiry or trial
- that he would interfere with the witnesses or the evidence against him, or otherwise obstruct the course of justice
- that he would commit an offence while on bail
- that the particular gravity of, and public reaction to, the alleged offence may give rise to public disquiet
The first three are about the individual and what he is likely to do. The fourth is not. It asks about the offence and the public response to it, which makes it the most contested ground in practice and the one least within an applicant's control.
Cancellation is not automatic. Where a police officer applies to cancel a subsisting bail order, section 14(1) requires notice to the person concerned and a hearing, either in person or through his Attorney-at-Law. Section 14(2) allows the court to commit the suspect to custody where it refuses or cancels.
Reasons, and second chances
Section 15 requires a court to record its reasons for refusing bail, cancelling an order, or rescinding or varying one. That obligation is what makes a refusal reviewable rather than simply final.
Section 14(3) is the provision applicants tend to forget. Where the court is satisfied there has been a change in the circumstances pertaining to the case, it may at any time rescind or vary an order made under section 14(1). A refusal is not the end of the matter. It is a decision made on the circumstances as they stood, and circumstances move: the investigation concludes, witnesses give evidence, charges are reduced.
Offences punishable with death or life imprisonment
Section 13 removes these from the Magistrate's hands entirely. A person suspected or accused of an offence punishable with death or with life imprisonment shall not be released on bail except by a Judge of the High Court. The Magistrate before whom such a person is first produced has no power to grant bail, whatever the merits.
How long a person can be held
Section 16 sets an outer limit. Unless a person has been convicted and sentenced, he shall not be detained in custody for a period exceeding twelve months from the date of his arrest. That is subject to section 17.
Section 17 lets the Attorney-General apply to the High Court for an extension, which the court may grant for good and sufficient reasons that must be recorded. The proviso is the important part: any period ordered under section 17 shall not exceed three months at a time, and twelve months in the aggregate. The extension mechanism is bounded rather than open ended.
Anticipatory bail
Section 21 provides for the situation where a person has reason to believe he may be arrested over a non-bailable offence but has not been arrested yet.
He may apply to the Magistrate having jurisdiction over the area where the offence is alleged to have been committed, with notice to the officer in charge of the police station for that area, for a direction that he be released on bail in the event of arrest. Section 21(2) requires the application to be supported by an affidavit. Under section 21(3) the court must fix an inquiry date on receipt of the application, and that date cannot be later than seven days from the application. Section 21(4) requires the court to hear the applicant and the officer in charge, and to make its order recording reasons.
Where the Act does not apply
Section 3(1) is easy to miss and changes the answer completely in the cases it touches. The Bail Act does not apply to a person accused, suspected or convicted of an offence under the Prevention of Terrorism (Temporary Provisions) Act No. 48 of 1979, or under regulations made under the Public Security Ordinance, or under any other written law that makes its own express provision for bail.
That last limb is the broad one. A number of statutes carry their own bail regimes, and where they do, the principle in section 2 and the grounds in section 14 are not the governing test. Anyone advising on bail has to check the charging statute before reaching for this Act.
Section 3(2) tidies up the transition: a reference in any written law to a bail provision of the Criminal Procedure Code Act No. 15 of 1979 is read as a reference to the corresponding provision of the Bail Act.
Practical points
- Identify the charging statute first. If it contains its own bail provision, section 3(1) takes the matter outside this Act.
- For an offence carrying death or life imprisonment, prepare for the High Court. A Magistrate cannot grant bail under section 13 however strong the application.
- A refusal is reviewable on changed circumstances under section 14(3), and section 15 requires the reasons to be recorded, which gives you something to work against.
- Where an arrest is anticipated rather than made, section 21 puts an inquiry date within seven days, which is often faster than waiting for the arrest.
- Watch the twelve-month limit in section 16, and check whether any extension under section 17 has stayed within the three-month and aggregate caps.
Bail argument in Sri Lanka is mostly argument about section 14. The Act gives a court four reasons to say no, requires it to explain which one it is relying on, and allows the question to be reopened when the position changes. Understanding which of the four is actually in play is usually what determines whether an application is worth making now or worth making later.
