The Bail Act - a protector or a sham?


March 21, 2016

After being promulgated with much pomp 15 years ago, the Bail Act, 2000 ['the Act'] should be reviewed to determine whether it has made a difference, in a positive way, to the administration of justice or is it a sham, in that it purports to give legal rights and protection of liberty, which, in reality, is not the case.

The guiding principle underlying the right to bail is enshrined in Section 3 (a) of the Charter of Fundamental Rights and Freedoms (Constitutional Amendment) Act ('the Charter'), which provides for, among other things, a right to liberty. With respect to bail, Section 14 (4) of the Act, which outlines the entitlement to bail, states clearly that: ".... every person who is charged with an offence shall be entitled to the grant of bail by a court, a justice of the peace or a police officer, as the case may require".

It should be borne in mind that detention before conviction directly impacts the presumption of innocence. Indeed, one of the pillars on which our justice system rests is that a defendant will not be punished without due process of law. However, in the criminal justice system in Jamaica, it is not unusual for persons to be on remand for several years without a trial. This long period of remand without a trial also infringes on the constitutional rights of the defendant to a fair trial within a reasonable time. However, given the circumstances that prevail in an underfunded and inefficient criminal justice system, some persons may believe that a prolonged period of pretrial remand for several years is not unreasonable.

Another problem with the proper and effective administration of the Act relates to the provision that where a resident magistrate refuses bail, the court shall give reasons and include a note of those reasons to the defendant or his representative within 24 hours. This provision seems to be more honoured in its breach than in its observance. It also gives rise to some practical difficulties. If the defendant is unrepresented, it is unlikely that the reason for refusal of bail would be handed to him while in custody. Second, if the defendant is represented and bail is, say, refused on a Friday, there is no system in place for his attorney-at-law to collect the reasons on Saturday or even Sunday. Third, there is no sanction if the resident magistrate should fail to give such reasons within the time prescribed or at all.

A most serious shortcoming with the Act, in my view, is that it does not provide the defendant with a right of appeal beyond to a judge of the Supreme Court, while the prosecution is afforded such a right. Thus, if the defendant's appeal of the resident magistrate's decision to the Supreme Court is unsuccessful, that is the end of the matter, unless there are NEW circumstances that require the renewal of the application. This is so although the Act provides that the defendant has the right to make an application for bail on each occasion that he appears before the court.

In my view, serious consideration should be given to granting a defendant, who has been denied bail by a judge of the Supreme Court, the RIGHT to an appeal to the Court of Appeal, even on specified conditions. By doing so, the legislature would show greater regard to the liberty of our citizens.

Indeed, the provisions of the Act should be strengthened by the legislature, where necessary, and be strictly observed by our justice system so that it can more serve as a protector of the rights and freedoms of our people and not as a sham. Nothing less will do.

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