Dear Editor,

The Independent Jamaican Council for Human Rights is greatly concerned by the utterances of the minister of national security in Parliament on May 25, 2021 concerning the grant of bail by judges. The minister made generalised references to cases without any details or statistical data.

The principles of the liberty of citizens and the presumption of innocence are fundamental principles accepted in all democratic states and guaranteed by our own charter of rights. Section 14(4) of the charter states:

“Any person awaiting trial and detained in custody shall be entitled to bail on reasonable conditions, unless sufficient cause is shown for keeping him in custody.”

The Bail Act is consistent with these provisions. While the Bail Act also entitles an individual charged with an offence to apply for bail, there are specific factors to be balanced in the interest of the public order and security.

Section 4 of the Bail Act stipulates the circumstances in which bail may be denied a citizen who is charged with an offence that is punishable with imprisonment. It reinforces the constitutional provision that the onus to show why bail should be denied rests on those who wish to deprive that accused person of the constitutional protection of his or her liberty.

Section 4(1) states, in part: “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 –

(a) the court, a justice of the peace or police officer is satisfied that there are substantial grounds for believing that the defendant, if released on bail would

(i) fail to surrender to custody;

(ii) commit an offence while on bail; or

(iii) interfere with witnesses or otherwise obstruct the course of justice, whether in relation to himself or any other person…”

Section 4(2) comprehensively addresses the matters which should be considered in assessing an application for bail. It states:

“(2) In deciding whether or not any of the circumstances specified in subsection (1) (a) exists in relation to any defendant, the court, a justice of the peace or police officer shall take into account

(a) the nature and seriousness of the offence;

(b) the defendant’s character, antecedents, association and community ties;

(c) the defendant’s record with regard to the fulfilment of his obligations under previous grants of bail;

(d) except in the case of a defendant whose case is adjourned for inquiries or a report, the strength of the evidence of his having committed the offence or having failed to surrender to custody;

(e) whether the defendant is a repeat offender, that is to say, a person who has been convicted on three previous occasions for offences which are punishable with imprisonment; or

(f) any other factor which appears to be relevant including the defendant’s health profile.”

In many cases where individuals are granted bail who should not have been, the fault is not to be attributed to the judge who granted bail, but to the prosecuting authorities who have not adequately or properly placed before the judge the reasons why bail should have been denied.

There is therefore no basis for altering the existing provisions so as to deprive individuals of their constitutional rights. There is a need to improve the efficiency of the security forces so that proper grounds for denial of bail, where they exist, are placed before the judge.

Lloyd Barnett

Nancy Anderson

dr.lgbarnett@gmail.com