Cornwall Bar says no to proposed revisions to Bail Act
Published:Wednesday | June 15, 2022 | 12:08 AMChristopher Thomas/Gleaner Writer
WESTERN BUREAU:
THE CORNWALL Bar Association (CBA) has strongly condemned recent remarks made by Minister of Legal and Constitutional Affairs Marlene Malahoo Forte that persons charged with murder will be denied bail under a new bail act that the Government may soon propose.
Speaking to The Gleaner on Thursday, June 9, CBA President Michael Hemmings denounced such a proposal as unconstitutional and a breach of a defendant’s right to due legal process.
“The utterances made about what is to come if this proposal comes into law goes against the very fabric of our rule of law and serves as a pilfering mechanism to take away from us as citizens the presumption of innocent until proven guilty. It is a most unfortunate utterance and plans afoot should be immediately abandoned,” said Hemmings.
On Tuesday, June 7, Malahoo Forte told the House of Representatives that, in addition to persons on murder charges, those who are charged with firearms offences would also not be allowed bail under the proposed legislation.
“If you on murder charge, you cannot be at large, and if you on gun charge, you cannot be at large,” Malahoo Forte said at the time, while noting that the wording of some of the clauses of the bill is being revised.
But in responding to concerns about murder defendants potentially interfering with witnesses or getting killed themselves while on bail, Hemmings stressed that the bail application process allows the court to make a proper determination on whether an accused person should be kept in custody or not.
“The Bail Act presently sets out that a reason for denying bail is if the accused person is likely to commit an offence while on bail. Therefore, at the time of considering bail, the court can make the necessary assessment if such a person has the propensity to commit an offence, and if the answer is in the affirmative then bail can be denied,” Hemmings explained.
“However, to say that persons outright should not get bail for gun or murder offences is unconstitutional and unacceptable.”
The proposed new legislation is not a new idea, as the Andrew Holness administration had previously sought to take steps to amend the Bail Act from as far back as 2016, to prevent persons charged with murder from getting bail under certain circumstances.
A BREACH
Prior to that, the Supreme Court had ruled in 2011 that certain amendments which were made to the Bail Act were a breach of the Jamaican Constitution. At that time, the amendments allowed for persons charged with serious offences to be disqualified for bail for a maximum of 60 days.
The Supreme Court quashed those amendments after attorneys-at-law Norman Godfrey and Marcus Greenwood, representing two persons who were detained under the Bail Act, argued that the amendments were unconstitutional, inhumane, and interfered with the judge’s discretion to grant bail for certain offences, including murder. The attorneys had also argued that the amendments removed a citizen’s fundamental right to bail.
Under Section 4.1 of the present Bail Act, bail may be denied to a defendant if the court has reason to believe that the defendant would commit an offence while on bail, fail to surrender to custody as required, or interfere with witnesses or otherwise obstruct the course of justice in relation to himself or another person.
Section 4.3 of the act states that a defendant may also be denied bail if it is determined that he should be kept in custody for his own safety.