JFJ urges balance in considerations for pre-charge bail

Human rights lobby Jamaicans for Justice (JFJ) has registered its opposition to Section 5 of the proposed Bail Act, 2022, which speaks to pre-charge bail.

JFJ Executive Director Mickel Jackson argued that there is no giving back time when detainees miss out on important events, such as a man missing the birth of his child or a parent losing out on opportunities to help their child with homework.

“We believe that Section 5 ought to be struck in its entirety. The board gave me these words to use. They believe that it is offensive to the Constitution to have Section 5 being contemplated,” Jackson said during Thursday’s sitting of the Joint Select Committee examining the proposed legislation.

She said the competing considerations for and against pre-charge bail powers must be finely balanced.

“On the one hand, removing proposed pre-charge bail powers altogether could lead to more people being unnecessarily charged and potentially remanded in custody, only to find that the case against them is discontinued after weeks, or months, on remand in prison. On the other hand, pre-charge bail facilitates, if not encourages, tardy investigation and is not regarded as a necessary power in most other countries,” the JFJ said in its submission.

JFJ said that when granting bail, the police have too wide powers to impose conditions and are largely in the absence of judicial scrutiny.

Jackson reasoned that though its immediate position is for pre-charge bail to be struck from the act, the organisation has made a proposal for some amendments, “given the Government’s clear intent on its inclusion”.

Section 5 (2) allows a judge to deny bail to someone not charged within a specified period of their own judgement before the question of bail is to be reconsidered.

JFJ proposed the removal of the possibility of extended detention, noting that in any case where a judge of the parish court denies bail to a person who is arrested or detained without being charged, the judge shall specify the period not exceeding 48 hours, within which the defendant shall be brought back before the court for bail to be considered.

Section 5 (3) provides that when there is an ID parade, an individual can be detained for 120 hours or five days.

However, the JFJ proposed a reduction to 48 hours, arguing that a Jamaican’s fundamental right cannot be abrogated because of the State’s failure to act expeditiously.

Turning to Section 5 (4) and (5) of the act, which speak to a defendant who is arrested or detained, but has not yet been charged and is released on bail, Subsection 4 allows for release on bail with or without conditions for a period of up to six months to be determined by a police officer.

“This means an individual can be on bail with or without conditions for up to one year. It is even more concerning that the individual on bail does not seem to have an avenue to challenge the bail or make representations as to why he shouldn’t be on bail until it is brought before the court in consideration of extension,” the JFJ argued.

Jackson added that the power of the police to impose conditions should be removed in its entirety and proposed that pre-charge bail should be subject to a non-extendable time limit of 14 days.

The JFJ also proposed that the act provide a clear appeal process for pre-charge bail as there is no provision for appeal until the six months, when a person is unconditionally released or when an extension is being sought.

“Therefore, a person wishing to challenge the reasonableness of being placed on pre-charge bail is restricted,” the human rights group reasoned.

The JFJ’s submission also considered children and recommended that the bail of children be placed under Section 6 the Bail Act and removed from the Child Care and Protection Act.

“If bail of children is brought under the Bail Act as requested, children should not be considered for pre-charge conditions and the act should explicitly state such,” the JFJ submitted.

Meanwhile, Jackson said that passing the Bail Act in its current form would have implications for the country’s criminal justice system.

“The reality is that these provisions are, in fact, subjected to abuse, and if that happens, how will that impact the courts that are currently under strain? We have lock-ups overcrowding that plagues our criminal justice system,” she said, as she reminded the committee of the 1992 deaths of Agana Barrett, Ian Forbes, and Vassell Brown, who suffocated in an overcrowded cell at the Constant Spring Police Station after two days.

She argued that these realities cannot be ignored and questioned what measures will be put in place by the Government to prevent a recurrence.

judana.murphy@gleanerjm.com