Without giving any qualification to it, the recent declaration by the Minister of Legal and Constitutional Affairs Marlene Malahoo Forte that individuals on a “murder charge and gun charge cannot be at large” is a serious cause for concern in the context of the announcement of a new Bail Act.

This declaration by the minister was made during her contribution to the 2022/2023 Sectoral Debate in the House of Representatives. Not surprisingly, the minister’s declaration has caused many to conclude that the exercise of judicial discretion in the way of granting bail will be curtailed. In an effort to give some clarity, in a recent radio interview, the minister sought to allay such concerns by saying that judicial discretion would not be eliminated. However, when asked if there would be a restriction on the exercise of a judge’s discretion to grant bail, the minister responded by suggesting that it would be best to await the details of the new Bail Act.

Alas, is this the proverbial case of the devil being in the details? And, until then, should we meekly wait and murmur not?

To say that Jamaica’s murder rate is alarmingly high and seemed conjoined with criminals who have ammosexual traits would be an understatement. Within this context, the minister’s declaration is deserving of much empathy. However, to say that people on murder and gun charges are at large is to suggest that the courts, in the granting of bail in such instances, are derelict in the exercise of their discretion by not attaching conditions or restrictions on bail offers made.

The reality in practice is that, in instances in which bail offers are made by a court, in relation to either a murder or gun charge, conditions are as a matter of course attached. These restrictions often come in the form of daily reporting conditions to the nearest police stations, surrendering of travel documents, stop orders at all ports of entry and exits, restriction or confinement of an accused to a specific geographical location, and curfew orders. These are but a few of the restrictions that are often placed upon an individual and are by no means exhaustive of the conditions that a court imposes. Indeed, it should be noted that section 6 (2D) of the Bail Act of 2010 grants the power to a court to consider other conditions in the granting of bail.

The Bail Act itself is quite comprehensive insofar as the factors that are to be considered when a court is exercising its discretion whether to grant bail or not. Not to be forgotten is section 10 (2) of the Act, which also affords an opportunity for the prosecution to appeal a decision on bail in situations in which it is believed the court failed to use its discretion properly. It is therefore inconceivable to appreciate the need for a new Bail Act outside of a desire to restrict the offer of bail to individuals charged with murder or gun offences.

The argument has long been that such categories of people, whilst on bail, are the ones who reoffend. This is often the scripted position of the Jamaica Constabulary Force (JCF), without any regard for empirical evidence in support of this.

This myopic view of the JCF also fails to take into account that their own members who find themselves in the unfortunate position of being on a murder charge, which oftentimes comes about in the execution of their duties, would be in a perilous position were the new dispensation to be no bail for murder charges. The reality is that the majority of people on murder or gun charges, whilst on bail, do not reoffend.

To subscribe to any notion that people charged for murder or gun offences are not entitled to bail is to ignore fundamental principles of the law which are sacrosanct.

Section 14 (4) of The Charter of Fundamental Rights and Freedom (Constitutional Amendment) Act, 2011 of Jamaica states 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.” From this, it is respectfully submitted that there is clear recognition that the consideration of bail is a right. There is no restriction on such a consideration.

Note can also be taken of Akili Charles v The Attorney General of Trinidad & Tobago & the Law Association of Trinidad and Tobago (interested party), CAs 046 of 2021, in which the court, comprising of Chief Justice Ivor Archie, unanimously ruled that by removing the jurisdiction of High Court judges to grant bail to people charged with murder was unlawful. In this case the central issue was whether section 5(1) of the Bail Act of Trinidad and Tobago, which prohibited the grant of bail to people charged with murder, was permissible. In his ruling the Chief Justice noted: “The unanimous view of this panel is that, by removing the jurisdiction of the High Court judges to grant bail to persons charged with murder, section 5 had trespassed on a core judicial function. In this way, section 5 offends critical aspects of the rule of law and is not reasonably justifiable in a society having respect for the rights and freedoms of the individuals.”

Any attempt to fetter or eliminate the court’s discretion to grant bail will do violence to the separation of powers doctrine. The judiciary is mutually exclusive and independent of the other two branches of government.

To restrict the judiciary is an assault upon our core democratic principles, which should not be countenanced. To say that one class of people is not entitled to equal consideration under the law is, quite frankly, an abomination. Where is the display of equal rights and justice in this, or is it that equal rights and justice are mere semantics of the distant past, too far in the recesses of the minds of some to recall?

In the words of Benjamin Franklin, “We must remember that freedom is not a gift bestowed on us by other men, but a right that belongs to us by the laws of God and nature.”

Peter C Champagnie is a Queen’s Counsel in Jamaica. Send comments to the Jamaica Observer or to peter.champagnie@gmail.com.