I have taken the position or legal stance that the legislature erred in enacting subsection 4 (1) (e) of the Bail Act, in providing for judicial refusal of bail to a defendant who is charged with a criminal offence whilst on bail in another criminal matter previously before a court of law.

That section reads as follows:

4-(1) “Where the offence or one of the offences in relation to which the defendant is charged or convicted is punishable with imprisonment, bail may be denied to that defendant in the following circumstances”

(e) the defendant is charged with an offence alleged to have been committed while he was released on bail.

The subsection or clause 4(1) (e) appears capable of dealing with a situation in which the defendant, having been released on bail in a parish court, becomes subject to the jurisdiction of a higher court in the course of proceedings in which the higher court has a discretion to deny or continue the bail previously extended by the inferior or lower court.

The subsection allows the superior court, in the writer’s view, to refuse or decline to make an offer of bail to the defendant in circumstances where he, having been on bail, was charged and taken into custody prior to the matter reaching the higher court. The reason for the refusal of bail in the higher court would simply be the fact that he or she had been charged with a separate criminal offence whilst on bail in the earlier court proceedings or matter.

It appears that this subsection requires that the court whose deliberation on bail is being referenced, is the one considering an application for bail in regard to the subsequent, alleged criminal offence. The original alleged offence in respect of which the defendant has been offered bail in the first place may or may not have been concluded.

If the original case resulted in an acquittal of the defendant, the stigma attached to his action in the subsequent case would survive his acquittal if the first case fell under the provisions of the Bail Act, and if the subsequent offence also occurred after December 28, 2000 when the Bail Act came into force. A judge would be eminently entitled to refuse bail in the subsequent case under Section 4 (1) (e) of the Act, and this writer could not be heard to object to the validity of the judge’s action. However, the enactment by the legislature would warrant harsh criticism for punishment of persons with imprisonment solely because they were charged for a criminal offence.

If the defendant is convicted in both cases, he may receive non-custodial sentences in both cases or serve time. If the defendant appeals his sentence or sentences, subsection 4 (1)(e) may yet prevent him from obtaining an offer of bail in the Court of Appeal for the same reason in respect of which bail was refused in the lower court. The writer has no problem with the exercise of a judge’s discretion in those circumstances.

However, the writer has a difficulty in relation to a refusal or declension to offer bail by mere virtue of the fact that a defendant on bail is charged with the criminal offence which he is alleged to have committed whilst on bail.

Having regard to the fact that, from a jurisprudential perspective, a defendant only commits a criminal offence when a court of law’s competent jurisdiction has so decided either as a result of a trial of the allegations forming or constituting the prosecution’s case, or, if the defendant pleads guilty to the charge of the commission of the offence, it is therefore unclear what is the wrongful act which forms the basis of the refusal of bail. A blanket provision that a grant of bail to anyone charged for a certain criminal offence will not be eligible to receive such a grant obfuscates the rationale for its imposition, as it destroyed the link between the alleged commission of the alleged offence and the perpetrator. In a polity such as that which exists in Jamaica, the implementation of such a bail policy would only mean that the new law will be selectively enforced. Traditionally, the fault lines of such a system becomes discoverable in the demarcation between the various classes in the society.

It appears that a premium in this scheme is being placed upon the fact of arrest and charge as opposed to the culpability of the defendant.

The difficulty experienced by the writer is that the way in which the law is formulated provided an impetus, nay, temptation, for misguided police personnel who may be displeased at the exercise of the judge’s discretion regarding the grant of bail to consequentially decide to nullify the favourable exercise of the judge’s jurisdiction by immediately or shortly after the taking up of a bail offer, rearresting the defendant for another criminal offence.

Now that amendments to the Act are being considered by highly placed government officials to discontinue bail offers to persons arrested and charged for certain particular offences, it is a no-brainer that misguided police personnel would manifest a marked preference for charging certain defendants for offences of possession and use of firearms, since such charges would come with a built-in no-bail clause.

Whilst such actions may appeal to a certain demographic of the Jamaican populace, the offence-whilst-on-bail-opportunity may eventually become a fountain of corruption, human rights abuses and the abrogation of constitutional rights, in which the time-honoured concept of the presumption of innocence may become a relic of the past. The concept that the onus or burden of proof lies on the prosecution, which is enshrined in the ocus classicus Woolmington v The Director Of Public Prosecutions, a 1935 case, may also be marked for extinction because there would not be a level playing filed in the administration of justice. Because, whereas one could not envisage that a majority of firearm – related cases would have been corruptly preferred for the purpose of placing known trouble makers behind bars for a considerable period of time, spare a thought for the percentage of persons who are innocent victims of malice, revenge corruption and error in investigation of cases. The question arises whether persons denied bail because of the type of offence with which they are charged and who may be condemned to lengthy periods of pretrial incarceration resembling de facto pretrial sentences, will be required to present their cases in court before or after the prosecution. The situation affecting them would be “guilty until proven innocent” and the good would have to suffer for the bad.

It becomes ironic that the proliferation of gunmanship, a putative cousin of the way we have conducted the business and politics of this country, should have reached a stage where persons who abhor gunmanship, maybe never even having previously held a firearm, should be subject to compulsory incarceration because of the abolition of the presumption of innocence in relation to allegations of criminality, with reference to the possession of and/or use of firearms and ammunition reminiscent of the immediate aftermath of the introduction of the Gun Court in the 1970s, when rival entities would engage in tit-for-tat complaints and counter-allegations of gun crimes by rival entities as the only way to defeat an allegation or accusation of gun possession or use.

May we find a path to avoid travelling that route once more.

Eternal Father, bless our land!

The denial of bail to persons arrested and charged for gun offences ought not to extend to any person who has not here-tofore been convicted for any such offence. The country needs to avoid the criminalisation of the populace on the basis of merely being a resident in the land of wood and water. The porous nature of the sea cost of our island home has created uncontrollable opportunities for the export and import of nefarious substances and implements.

Maybe it would be wise for the country, along with other crime-fighting measures, to creatively and proactively invest in reducing the porous nature of our shores. Go to the people for suggestions, as there may be many people with workable blueprints towards that end, but because of our preference for foreign expertise costing millions of international dollars, workable solutions coming from local sources may have been studiously ignored or disregarded in favour of foreign ideas which do not appear historically to have contributed significantly to the solution of “the island problem”. Yet, we seek solutions from persons who have always lived on continents.

We must never forget that we do not manufacture guns and other artillery in Jamaica. We therefore need to radically improve the quality of the nature and accountability of the human factor at our ports of entry and ask us, us Jamaicans, to invent and produce blueprints for the surveillance of our porous shores! We may already have the blueprints but we must get rid of the “foreign mind”!

Everton Pkeyanguu Bird is an attorney-at-law who operates from the Royal House of Menyelek, 21 Church Street, Kingston.