KINGSTON, Jamaica — The Jamaican Bar Association (JAMBAR) has expressed its surprise at the statement made by Minister of Legal and Constitutional Affairs, Marlene Malahoo Forte, that a new law will be proposed, which will ensure that individuals charged with murder or the illegal possession of a firearm, would be denied bail.

Malahoo Forte made the statement in the House of Representatives on Tuesday during her 2022/2023 Sectoral Debate.

“We were surprised to learn of these intentions by the Government. This is a course that was taken by a previous administration in 2010, which ended with our Supreme Court holding those amendments to be in violation of the Constitution of Jamaica. (Adrian Nation v The Director of Public Prosecutions and The Attorney General of Jamaica Consolidated with Wright, Kerreen v The Director of Public Prosecutions et al case number 2010HCV5201. Date of Delivery 15.07.2011),” the Association said in a statement on Wednesday.

Adding that it is presently a constitutional right that 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 Association said, “The law has been very clear that the seriousness of an offence/allegation is not, by itself, sufficient cause for keeping a person in custody pending his trial. The reason for this is another Constitutional Right: because “every person charged with a criminal offence shall be presumed innocent until he is proved guilty…”

JAMBAR further stated that by denying bail to all persons charged with murder and gun-related charges, the Government would be using its legislative power to force the Court into presuming that all those persons are likely guilty and are likely a danger to society. The presumption of innocence would be severely eroded, JAMBAR said.

“JAMBAR understands the societal pressure faced by the Government and the reasons motivating this approach. While we have yet to see any real data to support the view that any significant portion of crime in Jamaica is being committed by persons who have been granted bail, we are mindful of the society’s concern,” JAMBAR added.

It continued by outlining that local courts have been shouldering much of the criticism regarding the issue of bail, and it is incumbent upon us at the Bar to put this issue in context.

“At present, the law provides an avenue for the prosecution to oppose an application for bail if it can prove that the accused would likely commit an offence while on bail. This is but one of many bases upon which the prosecution can oppose bail,” the Association said, explaining that if the prosecution has put forward such evidence and is dissatisfied with the court’s grant of bail, the prosecution has the right to appeal that decision.

Given the lack of bail appeals by the prosecution, JAMBAR argued that the Government should seek to fix the existing bail regime by, improving the adequacy and quality of evidence given by the police to the prosecution to support the prosecution’s opposition to the bail, and providing the Office of the Director of Director of Public Prosecutions with any additional resources that their office requires to pursue bail appeals that are considered necessary in the interest of justice and public safety.

“Instead of denying bail to all persons charged with these offences (which invariably include persons who will ultimately be acquitted), greater effort and resources should be spent in shortening the time between a criminal charge and a conviction of the guilty. The Government should be more focused on ensuring that those who are detained/incarcerated in custody are guilty of the offence charged,” JAMBAR said.

Noting that if the intended approach, to automatically remove the right to bail for those charged with serious offences, becomes a reality, persons charged with these offences may spend on average, five years in custody before the trial of their matters they are charged with is heard and concluded, even if they are ultimately acquitted.

“The consequence of accused persons being denied bail would increase the state’s liability to compensate them where they can successfully claim for false imprisonment and/or malicious prosecution,” JAMBAR said.

At the same time, JAMBAR is encouraging the Government and all individual legislators to give this matter the comprehensive consideration that it deserves during the discourse and debates.

“The damage to an innocent person, their employment prospects, future ability to earn and provide and the damage to his / her family (especially their children, if any), which is caused by an unjustifiably long detention is hard, if not impossible, to undo,” the Association stated.