KINGSTON, Jamaica– The Jamaican Bar Association (JAMBAR) has taken issue with a statement by the Minister of Legal and Constitutional Affairs, Marlene Malahoo Forte, that a new law will be proposed, ensuring that individuals charged with murder or the illegal possession of a firearm, will be denied bail.
“We were surprised to learn of these intentions by the Government. This is a course taken by a previous administration in 2010, which ended with our Supreme Court holding those amendments to violate the Constitution of Jamaica,” JAMBAR said in a statement.
Malahoo Forte told legislators that a new Bail Act was coming.
“I wanted to table it today, but we are revising the wording of some clauses. I will say no more at this stage, except that if you (are) on a murder charge, you cannot be at large, and if you are on a gun charge, you cannot be at large”.
But JAMBAR said it is a constitutional right that any person awaiting trial and detained in custody shall be entitled to bail on reasonable conditions unless sufficient cause is shown for keeping him in control.
“The law has been obvious that the seriousness of an offense/allegation is insufficient to cause for keeping a person in custody pending his trial. The reason for this is another Constitutional Right: “every person charged with a criminal offense shall be presumed innocent until he is proved guilty….”
JAMBAR said that by denying bail to all persons charged with murder and gun-related charges, the Government would be using its legislative power to force the court into presuming that all those persons are likely guilty and are likely a danger to society.
It warned that the presumption of innocence would be severely eroded, adding, “JAMBAR understands the societal pressure faced by the Government and the reasons motivating this approach.
But the lawyers said, “while we have yet to see any real data to support the view that any significant portion of crime in Jamaica is being committed by persons who have been granted bail, we are mindful of the society’s concern.”
JAMBAR said that local courts have been shouldering much of the criticism regarding the issue of bail, and it is incumbent upon us at the Bar to put this issue in context.
“The law provides an avenue for the prosecution to oppose an application for bail if it can prove that the accused would likely commit an offense while on bail. This is one of many bases upon which the prosecution can oppose bail.”
JAMBAR said that if the prosecution has put forward such evidence and is dissatisfied with the court’s grant of bail, the prosecution has the right to appeal that decision.
It said given the lack of bail appeals by the prosecution; the Government should seek to fix the existing bail regime by improving the adequacy and quality of evidence given by the police to the trial to support the prosecution’s opposition to the bail and providing the Office of the Director of Public Prosecutions with any additional resources that their office requires to pursue bail appeals that are considered necessary in the interest of justice and public safety.
“Instead of denying bail to all persons charged with these offenses (which invariably include persons who will ultimately be acquitted), greater effort and resources should be spent on shortening the time between a criminal charge and a conviction of the guilty. The Government should be more focused on ensuring that those detained/incarcerated in custody are guilty of the offense charged,” JABBAR said.
JAMBAR said that if the intended approach, to automatically remove the right to bail for those charged with serious offenses, becomes a reality, persons accused of these offenses may spend, on average, five years in custody before the trial of their matters they are charged with is heard and concluded, even if they are ultimately acquitted.
“The consequence of accused persons being denied bail would increase the state’s liability to compensate them where they can successfully claim for false imprisonment and malicious prosecution.”
JAMBAR said it is encouraging the Government and all individual legislators to give this matter the careful consideration it deserves during the discourse and debates.
“The damage to an innocent person, their employment prospects, future ability to earn and provide, and the damage to his / her family (especially their children, if any), which is caused by an unjustifiably long detention is hard, if not impossible, to undo,” it warned.
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