Concern over JPs, cops having bail discretion over detainees

A leading rights activist has questioned a provision in the proposed new Bail Act 2022 which she says gives justices of the peace (JP) and senior police officers first jurisdiction and discretion in granting bail to a suspect who has been detained but not yet charged.

In making a submission on Tuesday to a parliamentary committee, Arlene Harrison Henry said that the development represents a fundamental change because it allows a police officer or JP to restrict the personal freedom of citizens who have not yet been charged with any criminal offence.

“This is a far-reaching jurisdiction and a discretion that can only appropriately be given to the judiciary as the tried and tested and trusted arbitrator between the citizen and the State,” the Independent Jamaica Council for Human Rights (IJCHR) member told the joint select committee considering the legislation.

This newly proposed discretion, according to Harrison Henry, introduces a phenomenon that has commonly been described as bail before charge. She urged caution on its introduction to fight crime in Jamaica.

“It is also unarguable that not even the police themselves would consider that they are impartial arbiters in this fight, just as it is unarguable that justices of the peace generally do not have the specialised training or experience or probably even the desire to exercise this extraordinary power,” she noted.

Harrison Henry, a former public defender, contended that discretion should be left with the judiciary and not conferred upon any officer of the State that has a professional interest in the detention of persons against whom he is unable to prefer a charge immediately.

The IJCHR representative said that the proposed law does not appear to have been conceived in an environment of empirical research “to establish that the discretion of the judiciary has been so unreasonably or otherwise so detrimentally deployed that the judiciary deserves to be circumscribed in its jurisdiction over bail”.

Harrison Henry acknowledged that the duty of any government is to govern and that the provision of a safe and secure society for its subjects to live in is probably the most important requirement of governance.

However, she cautioned that the deprivation or derogation of judicial discretion should not be such a quick resort where no scientific study has been done to even suggest that the prior exercise of the discretion is a part of the crime problem that so chronically afflicts the society.

“I know whether from the council or the Bar, we have asked to see that data. Our experience as counsel in the courts, we do not find support for the allegation,” she said.

The former public defender noted that the separation of powers is a fundamental principle of Jamaica’s constitutional system and should be given great respect.

Harrison Henry said that the language used in Clause 5 of the bill, describing a defendant as a person not yet charged for any criminal offence but detained, is significant for the detectable bias that it contains.

Chairman of the committee Marlene Malahoo Forte defended the provisions in the proposed new statute.

“What is the harm where the law says that having taken the person in custody on reasonable suspicion of that person having committed an offence, you must consider whether bail should be granted until you take all of the steps that are involved to trial in a reasonable time,” Malahoo Forte said.

“I have been scratching my head to find out which law is being discussed. Is it because the suspicions are so great that we really cannot read the provisions of the law and make sense of them?”

She said that a lot of the constitutional points being raised in parliamentary submissions “are not accurate insofar as what is provided in the Constitution or how the courts say how we could interpret them”.