We need a more efficient bail system

Legal and Constitutional Affairs Minister Marlene Malahoo-Forte's announcement on the new Bail Act has raised many questions, but it highlights the issues with the justice system. Bail is not handed out easily to all. In fact, some persons are denied bail and end up serving more time than what is legally required for their crimes. What is needed is a more efficient system.

Tinkering with the Bail Act

11 Jun 2022

FEAR AND wide-ranging speculation about the potential of a new Bail Act to remove discretionary powers of judges to assess, evaluate and determine suitability for bail, has greeted recent pronouncements by Legal and Constitutional Affairs Minister Marlene Malahoo-Forte.

This is the part of the minister’s speech in the Sectoral Debate which stirred most concern: “I should like to advise the honourable House that a new Bail Act is coming. I wanted to table it today, but we are revising the wording of some clauses. I will say no more at this stage, except that if you on murder charge you cannot be at large, and if you on gun charge you cannot be at large.”

Apart from ensuring that the Bail Act will be among the most anticipated piece of legislation to be debated in the House of Representatives when it arrived there in the next few weeks, the minister’s veiled threat suggests an attempt at abridging fundamental rights guaranteed by the Constitution.

As it now exists, every person charged with an offence is entitled to be considered for bail, although those charged with major crimes, such as murder or other offences punishable by imprisonment, may be denied bail on the ground that they would fail to report to court or commit another offence while on bail or interfere with potential witnesses. In any event, the prosecution has a right to appeal bail.

COMES WITH RESPONSIBILITY

Contrary to the minister’s view, people on bail are not “at large”. Bail comes with responsibility and the bail system is intended to ensure that an accused person shows up for trial. As the system now works, accused people may be released on bail under a wide range of conditions, including, but not limited to, surrendering of travel documents, abiding by curfews, reporting to the police and forbidden contact with witnesses.

The police have been most strident in their call for reforms to bail legislation to make it more difficult for accused people to get bail. To bolster their argument, they have cited examples of “persons of interest” being implicated in recent murders. Essentially, the police would like to see more people detained pretrial and kept in jail rather than being released to await their court date.

If the police do not appreciate the possible impact of this on the prison system, they need only to look at some of the solid studies that document conditions in Jamaican prisons and detention centres which are declared to be in notoriously poor shape. Overcrowding is a major problem, but there are also limited ventilation, poor toilet and sanitary facilities. So where would these detainees be held? And for how long would they be detained?

WELL DOCUMENTED FACT

Another well-documented fact is the length of time that the police take to prepare their cases as they seem to subscribe to the mantra of “arrest first and investigate later”. For example, one of their own, a policewoman accused of forging a judge’s signature in a divorce case, was detained for 20 months before she was eventually given bail. That is not an exception, it is what obtains and in many instances, the accused ends up spending more time in detention than the requisite punishment for the alleged crime.

Reform of the bail legislation ought not to be designed to make it more difficult to get bail. Instead, it should be made more efficient/ We welcome the announcement of the introduction of electronic monitoring as one way of using technology to assist in the administration of justice.

Given our high crime rate, the national mood is anxious for solutions. It is a fact that violent crime prejudices our social and economic development. But in our search for solutions the easy answer is always to curtail liberties and infringe people’s rights. This is contrary to the Charter of Fundamental Rights and Freedoms and veers on the unconstitutional and inhumane.

In this current administration, there is an overreliance on the criminal justice system to reduce crime and it has proven over and over that it is not able to fulfil that task. We continue to call for new, creative approaches.

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