Bail Act does not reflect reality – Chang

As the debate rages on in the public and in Parliament about the eligibility of bail for persons charged with serious offences such as murder and shooting, a senior prosecutor is contending that lawmakers are not really at liberty to restrict persons’ bail.

Recently, National Security Minister Horace Chang, while acknowledging the constitutional right of Jamaicans to bail, described the current approach to bail as “nonsensical”.

The minister, in his scrutiny of the country’s Bail Act, which he said does not reflect the cultural realities of the country, called for tougher bail conditions and a review of the considerations for persons who commit serious crimes like murders, claiming that murder accused usually continue to wreak havoc when they are admitted to bail.

But Deputy Director of Public Prosecutions Adley Duncan, who was among a panel of guests at a recent Gleaner Editors’ Forum last week, explained that, while legislators from time to time try to enact national security social policy which seeks to restrict an accused person access to bail, many of those broad measures have been found to be a “statutory parliamentary overreach”.

“Parliament isn’t necessarily at large to set restrictions on the right of a person,” he said, given the citizens’ rights to certain liberties that are enshrined in the Constitution.

“People have a right to freedom and judges are in the best possible position to understand the judicial aspect of what it means to consider a bail application and to grant bail for persons. Members of the executive aren’t really in the same position.

“And so, whereas the calls are valid in our local Jamaica context, judges still have their work to do and they are still bound by the law and Constitution as it’s interpreted,” Duncan added.

While noting that he is aware of the criticisms that have been levied against judges in certain judicial questions, especially in regards to bail, the senior prosecutor said, “I don’t speak for judges on this question, but what I can say is that, on the matter of the rights that persons including criminals have, many persons who are charged for serious crimes, based on the allegations against them and other factors, in fact do not get bail.

“And many persons who are on bail who commit criminal offences when they are rearrested, almost never get bail. But when it comes to making broad sweeping measures that do not account for individual circumstances and specific cases, then those measures tend to be struck down because Parliament cannot be overbroad in its legitimate attempts to make for a safer Jamaica,” he added.

Director of Public Prosecutions Paula Llewellyn, in weighing in on the issue, said that government ministers would be a “preeminent example” of a member of the executive indicating what could become a policy imperative.

SHACKLED BY LAW

However, she said members of the judiciary are shackled by the law.

From the police’s perspective, Senior Superintendent of Police Stephanie Lindsay, head of the Jamaica Constabulary Force’s Constabulary Communications Unit, said that, while the police understand citizens’ right to bail and respect the judges’ decisions, there are some accused who should not be admitted to bail.

“There are instances, from where we sit and based on the risk we believe and assessment that we have done, there are some persons that we see granted bail in some instances that we would prefer to have those persons remanded in custody. But, in the end, we have to respect the decision of the judges,” she admitted.

Lindsay added: “Our concerns are that, in many respects, those individuals who we initially opposed bail for, even before their next appearance in court, they are back in police custody because they go back and commit similar offences, and, in many instances, these are very serious offences such as murders and shootings.

Additionally, she said the police also have to be mindful of the state of witnesses who are often reluctant to testify when an offender is released on bail before a trial.

Llewellyn, however, added that, while the prosecutors empathise with the police and the minister regarding their concerns, the judges have a balancing act to play.

But she added that, “What we do always is to ensure that the police give us the information in a timely manner, so that the prosecutor is armed with the information in respect of why we should oppose bail, and, if reluctantly we have to give in to bail being granted, then we encouraged the court to put in place such condition, whether curfew or any other order, to make sure that the person does not commit another offence and if they do, certainly under the Bail Act, then we are in good stead to say that they should be remanded.”