Lawyer suggests review of aspects of new Bail Act

Attorney-at-law Jordan A.J. Jarrett has suggested that the joint select committee reviewing the new Bail Act 2022 should consider whether it was the intention of policymakers to have competing parallel regimes for bail in the proposed law.

Jarrett, a former Judicial Clerk to the Chief Justice of the Eastern Caribbean Supreme Court, said that having considered Section 5 of the Bail Act 2022, he was unclear about the relationship between pre-charge bail, and the right to seek and obtain habeas corpus relief.

Habeas corpus is the power of the court to summon a detained person, examine the circumstances of his detention, and order his unconditional release if the court concludes that the detention is unlawful or unjustifiable.

In a submission to the joint select committee reviewing the Bail Act 2022, Jarrett said that the pre-charge bail allows for someone to remain in detention without a charge for up to six months and this could be extended by a similar time frame.

On the other hand, Jarrett said the habeas corpus regime still exists in the bail law. According to the attorney, the habeas corpus regime allows for a person to seek the release of someone within two weeks or less than two weeks of that individual being detained.

“To the extent that the pre-charge bail regime can produce results that are inconsistent with the right to seek habeas corpus relief I believe that, in and of itself, requires further consideration by Parliament.”

He noted that the proposed legislation does not expressly address the relationship between pre-charge bail and the right of a defendant to seek habeas corpus relief.

“I am not sure what would impel a person who has been detained to seek pre-charge bail when the right to seek and obtain habeas corpus relief is sitting there looking them in the face,” he said.

ENTITLEMENT TO BAIL

Under the new Bail Act 2022, the pre-charge provision is applicable when a person is arrested or detained on reasonable suspicion that the individual committed an offence punishable with imprisonment and additional time is needed for investigations.

The proposed law allows for the granting of bail at three stages namely, pre-charge, upon charge, and post-conviction in defined cases.

Commenting on the absence of an entitlement to bail in relation to pre-charge detainees, Jarrett said that it was incongruous for the legislation to treat a person who is not charged with an offence in a more disadvantageous way than a person who has been charged with an offence.

“A person who has not been charged with an offence according to the terms of the bill, they haven't been charged because the file is so incomplete that the police is of the view that it can't sustain a charge and they need more time.”

Jarrett reasoned that he was unable to reconcile how a person who has not been brought “under the jurisdiction of the court by way of preferring a charge is treated less favourably than someone in respect of whom the file is so complete that the police decide that they will prefer a charge to bring them before a court”.