A recommendation by human rights lobby group Jamaicans for Justice (JFJ) to include an amendment in the new Bail Act to allow individuals who are wrongly denied bail in the courts to claim civil damages, has been rejected by the parliamentary committee reviewing the legislation.
"A defendant being unjustly denied bail that is later overturned on appeal should have clear knowledge of the remedies available to him to mitigate the damages this previous decision may have caused. JFJ recommends an insertion in Section 12 indicating such an avenue," JFJ said in its submission last December.
The group said the amendment should provide for the defendant who has previously been denied bail and is successful in an appeal under Section 7 of the Act (circumstances where bail may be denied), to bring an action in the civil court to claim damages for any loss suffered during the period they were held.
Minister of Legal and Constitutional Affairs Marlene Malahoo Forte, and Opposition spokesperson for justice Senator Donna Scott Mottley said such an amendment would upend the country's justice system.
The committee was continuing its review of the recommendations from various stakeholders on the Bail Act at its meeting Tuesday.
"Can you imagine if everyone taken into custody on reasonable suspicion were to have a civil remedy against the State? It would turn the entire system inside out. Jurisprudence does allow for a determination to be made on whether the basis for arrest or detention threshold was properly met. Sometimes it is not sufficiently understood as we are seeking to strike the right balance, and that we're talking about limited taxpayers' money to deal with matters. The law doesn't allow, simply because there is an acquittal, that you would have actions flow without more, and without defined circumstances," Malahoo Forte argued.
Acting assistant attorney general, Jeffrey Foreman noted that the concern may be based on circumstances where a malicious deciding officer exercises his/her discretion adversely to deny bail, and that decision is overturned. "There are various circumstances in which an appeal might be allowed; circumstances may have changed, or simply a different official comes to a different assessment of the factual situation. In a situation like that it might not be appropriate to invite the kind of action that's contemplated here," he said.
Malahoo Forte, the committee's chair, added that there are provisions in law for those kinds of situations. "The law is not without remedy for wrong that has been done. In a proper case, such an aggrieved person is not without remedy," she remarked.
Senator Scott Mottley emphasised that she could not support the recommendation. "There are circumstances in which the action of the deciding official smacks of malice and other elements creep into the decision, and there is recourse available. To accept this recommendation would definitely turn the judicial system on its head. It would create a Pandora's box. Whereas I understand where it comes from, I do not think it is wise," she stated
The committee also turned down a suggestion from the Norman Manley Law School (NMLS) to do away with the provision for a review of bail decisions. The NMLS said the review process "serves very little utility and can readily be excluded without loss to the provisions".
Malahoo Forte noted that the intent was to enable a quick review, especially of non-contentious matters, and that the power to refuse bail relates to the entire section dealing with the review of bail decisions, not only for defendants who were granted bail but who did not take up the offer. She noted that in certain circumstances pre-charge bail that was not taken up may be revoked.
"You may find [that] bail is granted out of court and, for whatever reason, upon the matter first coming before the court and the judge doing a review, that [circumstance] may change between the time when bail was granted out of court, and the matter coming before court in the interest of justice may require revocation of the bail. It happens now, in practice, which is what the interest of justice would require, in accordance with the standard specified," she explained.
The Act specifies that application for review must be done by the court having jurisdiction to try the offence, and on the first appearance of the defendant. The applicant must fulfil a condition, under Section 11 (2) of the Bill, of either a change in circumstances affecting the matter since the previous decision in respect of bail; or there are facts applicable to the matter which were not available to the deciding official at the time when the decision was made.
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