KINGSTON, Jamaica – The provision pertaining to post-conviction bail under the proposed Bail Act, may be expanded to allow convicted people to apply for bail pending an appeal of their sentence in exceptional circumstances.

This is if the submission of attorney-at-law, Jordan Jarrett to the Joint Select Committee currently examining the Bail Act, 2022 is accepted by legislators.

Under the Bill, a convict can only apply for bail in exceptional circumstances pending an appeal of their conviction.

Jarrett had proposed that post-conviction bail should also be available in appeals against sentence, even if in very limited circumstances.

During deliberations on the proposal at their meeting last Thursday, some committee members appeared to be at odds with the recommendation to widen the provision for post conviction bail.

Sharing different views were committee chair Marlene Malahoo- Forte and Director of legal reform Nadine Wilkins.

Malahoo Forte, who is also Minister of Legal and Constitutional Affairs, said that while the rationale for limiting the scheme to appeal against conviction remains a valid rationale, “I thought the submission made by Mr Jarrett made sense and having regard to the fact that even where a sentence of imprisonment is imposed, on appeal…it’s possible that that sentence could be suspended and so the convict would not be serving time.”

“So I really see no harm generally…because we do now have appeals against sentences. So if there is any unlawfulness in the sentence, it’s a matter that can be put before the court by the prosecution,” she said.

Wilkins argued that while she understands that a balancing act needs to be done, “the scenario of an individual, not serving a day because they successfully obtained bail, and by the time the appeal was heard, the period of incarceration would have elapsed, and someone who under those circumstances don’t spend one minute in prison, I’m not sure if the public interest has been served in such a situation,” she said.

Malahoo -Forte responded to say that if the person is convicted, the person will have the conviction recorded against his or her name.

“Outside of fixed sentences which the court would be obliged to hand down, if there is a menu of sentences to choose from that ultimately is a matter for the court’s discretion in the circumstances of each case,” she said.

At the same time, even though the committee on a whole agreed to accept the proposal for the expansion of the post- conviction bail regime, they were undecided on how to incorporate it into the Bill.

Wilkins felt the committee’s proposal to insert the words “or any sentence imposed in respect of such conviction” to expand the provision was too wide.

At the end of the discussion, committee members agreed to revisit the proposal. “We will reserve consideration of the extent to which we will allow a convict to apply for bail pending appeal of a sentence,” chair or the committee Marlene Malahoo Forte said.

In his submission, Jarrett noted that the current and proposed Bail Acts allow for a convicted person who appeals against their conviction to apply for bail pending appeal. However, convicted people who seek to appeal only against their sentence cannot apply for bail pending appeal, even where exceptional circumstances exist.

Speaking with ONLINE OBSERVER Thursday, Jarrett argued that this gap in the law where a person appealing their sentence only is not permitted to seek or obtain bail pending their appeal, needs to be fixed.

“Bail is a tool that the courts use to preserve the integrity of the administration of justice and to safeguard the rights of persons to the constitutionally guaranteed protection of the law. But when we deny the right to seek bail we can end up denying protection of the law to some people,” he said.

Jarrett said it is necessary to address this discrepancy to afford everyone the protection of the law, pointing to for example, “few very unfortunate cases in which a person might serve their entire sentence before their appeal against the sentence is heard.”

“This might be due to issues with obtaining transcripts, for example. If that person’s sentence was more than what the law would have allowed them to get, and they are a good candidate for bail, the law should help avoid the injustice of having the person serve more time in prison than they would have served if the right sentence was imposed,” he said.

Jarrett cited another example of cases in which a person will appeal their sentence because they have a strong case under the Sentencing Guidelines and the Justice Reform Act, that a fine should have been imposed instead of imprisonment.

“But Justice is not done if those persons cannot even try to get bail because the law doesn’t allow them to,” he said.

-Alecia Smith