Legal Eagle: Lock dem up without bail?

December 11, 2017

Prime Minister Andrew Holness is leading a choir in a chorus which is being sung by National Security Minister Robert Montague, Justice Minister Delroy Chuck and others, who are demanding that the law should be amended to say that bail should not be granted to persons charged for murder and gun offences.

The starting point in this discussion is the Constitution [Charter of Fundamental Rights and Freedoms], which provides 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 custody."

In 2010, the Bail Act was promulgated, and at Section 3 repeats the entitlement to bail by stating that "Subject to the provisions of this Act, every person who is charged with an offence shall be entitled to be granted bail by a court, a Justice of Peace or a police officer, as the case may require."

The Bail Act also provides that persons charged with an offence that is not punishable by imprisonment shall be granted bail. Section 4(3) of the Bail Act also provides that "bail may be denied to a defendant who is charged or convicted of an offence punishable with imprisonment if the court, justice of the peace or police officer is satisfied that the defendant should be kept in custody."

In light of the above, it brings into focus what exactly the prime minister and his ministers are demanding. It is to remove the discretion from a judge, justice of the peace or police officer to offer bail to persons charged with murder or gun offences.

So what happens in reality? A police officer receives a call that gunshots were heard in a particular area. On the arrival of the police, a man was found bleeding from his chest from what appears to be multiple gunshot wounds. No pulse was found. The police formed the view that he was dead. The crime scene was cordoned off. Police began the investigation. In the process of investigation, the police receive a tip. A man was arrested. He denied committing the crime. The accused, 'Bigfoot', was processed and charged with murder.




At court, Bigfoot's lawyer, in making an application for bail before the parish court judge, advised the judge that his client who is also known as 'Bigfoot', was not placed on an identification parade nor was he even in the parish at the time of the murder and he can prove it. He further told the judge that there is no forensic evidence that linked his client to the crime scene, but in making the arrest the police relied on an eyewitness, who said he observed the accused man from about 40 feet at about 1 a.m. with something looking like a gun in his hand walking towards the deceased. His observation was less than a minute and there was no streetlight, but there was "some lighting from a house nearby." In the statement given by the eyewitness, he said he knew the accused for about two months, but had only seen him two times during the two-month period.

The accused is 35 years old. He has never been in trouble with the law before. He is married with three children and is gainfully employed. In addition, he is an elder in his church.

Six weeks after the accused was charged, the investigating officer told the court that he is awaiting the post-mortem report, forensic reports, and he is still to interview about five potential prosecution witnesses.

The judge must now make an important decision. Should this accused man be offered bail with conditions? Alternatively, if the prime minister were to have his way, the law would be amended to remove the discretion from a judge to even consider bail? Think about it and join the debate.

In this year alone, over 1,500 persons have been murdered in Jamaica. Obviously, there is a need for a response from our political leaders, but should it be to deprive bail to persons charged with certain offences ["lock-dem-up approach"] or to take a comprehensive review as to what is causing this high murder rate?

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