THE Independent Jamaican Council for Human Rights (IJCHR) says it is not in agreement with the proposed Bail Act’s provision for the police and justices of the peace (JPs) to be given the “extraordinary power” of granting or denying bail, and is insisting that this should instead rest solely with the judiciary.

Former Public Defender Arlene Harrison Henry, who represented the council, said it found Clause 5 of the Bill to be particularly troubling in that it “really gives a police officer admittedly of a certain rank, [and JPs] the right to restrict movement of citizens and impose conditions over citizens before a charge is laid”.

Harrison Henry, who is secretary of the IJCHR Management Committee, was making a submission on Tuesday to the joint select committee of Parliament now reviewing the Bail Act, 2022.

“In Clause 5 it is proposed that JPs and superintendents and higher ranks of the police have the first jurisdiction and discretion to grant bail to a suspect who has been detained but not yet charged. This is a fundamental change because it allows a police officer or JP to restrict the personal freedom of citizens who have not yet been charged with any criminal offence. This is a far-reaching jurisdiction and a discretion that we submit can only appropriately be given to the judiciary, as the tried and tested and trusted arbitrator between the citizen and the State,” she said.

She said it is unarguable “that not even the police themselves would consider that they are impartial arbiters in this fight, just as it is unarguable that JPs generally do not have the specialised training or experience or possibly even the desire to exercise this extraordinary power.”

She added: “This device should be left with the judiciary and certainly not conferred upon any officer of the State that has a professional interest in the detention of persons against whom he is unable to prefer a charge at the time of detention or for some time thereafter.”

She said that this provision which seeks to unjustifiably affect the discretion of the judiciary is at the risk of being struck down as being unconstitutional, given that the exercise of the granting of bail is primarily a judicial function and duly recognised in the Jamaican Constitution.

Harrison Henry said the council also found that the Bill does not, “appear to have been conceived in an environment of empirical research to establish that the discretion of the judiciary has been so unreasonably or otherwise so detrimentally deployed, that the judiciary deserves to be circumscribed in its jurisdiction over bail”.

She further argued that the very language of Clause 5, describing as a defendant, a person not yet charged for any criminal offence but detained, is significant for the “detectable bias” that it contains.

“Prior to these provisions, such a person would be described as a suspect, upon whom the common law, mainly judges rules, and the constitution, conferred certain rights that have become well established over the years through constant judicial scrutiny and application.

“But the proposed Bill now describes such a person as a defendant, basically synonymous with an accused, pitting that person against the State in an adversarial legal system that now has to be navigated after liberty has already been lost, but no charge has yet been laid for any offence,”she said.

Harrison-Henry noted, however, that notwithstanding the council’s criticisms, it acknowledged that the Bill “desirably seeks to codify and consolidate most of the practices pertaining to bail, and commendably does not seek to deny the right to bail for any category of offences; thus, where bail is concerned, preserving the status quo of the general constitutional presumption of innocence”.

Meanwhile, committee member Natalie Campbell Rodriques (Government) said that as a JP, she shared a similar concern that the former public defender has about JPs having this power to grant or deny bail.

“But it is my understanding that JPs will be thoroughly trained, so it won’t be business as usual. It’s not with the knowledge that they now currently have, but the intention is for JPs to be prepared to do this,” she said.

Another member of the committee, Fitz Jackson (Opposition), said he is a little uneasy that under the proposed Bill, the JP and police officer, “particularly police officer [are] now being elevated to the level of a judge”.

He said he is uncomfortable with the fact that a JP or a superintendent is going to exercise the judgement of who is denied bail. “I rather [this decision] goes to a judge,” he said.

The proposed Bail Act seeks to repeal and replace the existing Act of 2000 and will address the matter of people being in custody without charge or trial within a reasonable time, while ensuring that people who commit serious crimes are not able to threaten, intimidate or harm witnesses.