Decision on bail should not be remit of politicians

Tuesday, December 05, 2017

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The right to bail has once more come to the fore as a result of pronouncements made by Prime Minister Andrew Holness and National Security Minister Robert “Bobby” Montague at the Jamaica Labour Party conference recently. I understand the prime minister and his minister to be saying that once a man is charged with a gun offence he should not be admitted to bail.

These two senior members of the Government seem to have forgotten that we went down that road in the 70s and 80s with the Gun Court Act and the Suppression of Crime Act. They should also remember that Michael Manley announced then that the Gun Court would be painted “Red to make it Dread”. So oppressive were those laws that even a young man who was found keeping an empty bullet casing as a souvenir would be incarcerated without bail on a charge of being in possession of 'ammunition'. We should look back and admit that those legal provisions were abandoned because it was shown conclusively that they were used corruptly against citizens, especially young men, rather than to solve crime.

It is a dangerous step to place the rights of a citizen to bail in the hands of politicians. judges, guided by the Bail Act, the constitution and other provisions in our laws are the best people to determine the right to bail. If we pass laws which deny our citizens, especially our young men, the right to bail then we will be subjecting our citizens to abuse by police officers who will make false accusations against citizens for a variety of reasons and have them incarcerated in breach of their constitutional rights.

Many of us at the Bar have had experiences of police officers making false accusations against citizens, especially young men, thereby causing them to be incarcerated unnecessarily. The best way I can make this point is to give the example of a case in which I represented a 17-year-old student, one of two young men charged with illegal possession of firearm and ammunition. I will not give their names for obvious reasons but for the record I will state that the other young man was represented by learned counsel Alando Terrelonge, who is now a Member of Parliament.

Both young men were taken in custody by the police in 2008. No charges were laid against the young men after four days in lock-up. An application for habeas corpus was made on behalf of my client. The hearing of the habeas corpus application commenced on day four and was extended to the following day before the young men were charged and placed before the court.

My client was charged with illegal possession of an “Uzi submachine gun” and 15 rounds of ammunition. The young men's case was transferred to the Gun Court Division of the Supreme Court the following month, and they attended court 28 times before they were acquitted some three years after they were charged. The case was dismissed after the presiding judge ruled that there was no case for the young men to answer. Fortunately for them they were admitted to bail by the learned magistrate at the conclusion of the habeas corpus hearing back in 2008.

The importance of this case is that the police officers gave statements alleging that one of them removed a knapsack from the back of my client and after opening it they found the Uzi submachine gun along with the ammunition therein. However, we requested a copy of the record from the station diary showing what was entered therein as the report of how the gun was recovered. The record in the station diary was made on the same day that the guns were allegedly recovered. The report from the station diary in part stated that:

“…D/Cpl… is reporting the recovery of two firearms one Ruger 9 mm pistol containing 10 rounds and one Uzi submachine gun serial #UP00236 containing five 9 mm rounds recovered about 9:00 pm 18/8/08, along Verene Avenue vicinity # 11 Cassia Park Road, Kingston 10.”

The report went on to give specific information as to how the gun was found and this is what was stated further in the Station Diary:

“The police accosted the men and conducted a search of the area, where the men were standing and both firearms were recovered on the scene.”

It should be noted that nowhere in the station diary is it stated that the guns were recovered from the young men.

For their part, the young men stated that when they arrived at the location to have a cellphone repaired, the police held them and told them that if they did not tell them (the police) where the gunmen were they would charge them for guns they had found in the area.

Terrelonge and I had fun asking the police officers why they did not charge “Mr Vicinity” and “Mr Scene” as the guns were recovered in a “vicinity, and “on a scene”. The police officers could not explain why they did not enter in the station diary that they recovered the guns from the persons of the two young men as they stated in their statements and as they were telling the court. The learned judge asked them why if they recovered the guns from the knapsack of an accused would they state that the gun was recovered in the vicinity of a street and at a scene. The policemen could not explain the conflict between the evidence they were giving under oath in court and what they had recorded in the station diary. At this stage, the judge, on her own initiative and without any submissions from Terrelonge and myself, dismissed the case.

The two young men were acquitted and we sued the Government on behalf of our client for malicious prosecution, false imprisonment and breach of constitutional rights. In 2015 our client received a judgement from the Supreme Court against the Government for over $4 million, inclusive of cost and interest.

My client was able to complete his education because he was admitted to bail while the charges were pending. He is now a successful, progressive and productive citizen in an important job. He was able to become what he is now because he was admitted to bail.

Secondly, a grave injustice would have been done if he was not admitted to bail by the magistrate at the habeas corpus hearing back in 2008. The learned magistrate made the right decision then.

If the system being proposed by Holness and Montague had been in place in 2008 this young man would not have been admitted to bail and so would not have completed his education.

What is significant is that the police officers told vicious lies on these young men. These lies told in the officers' witness statements and given to the court in their evidence under oath could have caused both young men to spend their lives in prison. This case stands out as an example of why we should leave the matter of bail to judges as they are far more equipped, competent, capable, and knowledgeable in making decisions on bail than politicians are.

I urge the prime minister and the minister of national security to tread carefully in dealing with the matter of bail as they may turn out to be agents of oppression rather than 'crime solvers'.

Linton P Gordon in an atttorney-at-law. Send comments to the Observer or




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