Foreman, Scott-Mottley concerned about depriving liberty under proposed Bail Act

MEMBERS of the joint select committee of Parliament now reviewing the Bail Act 2022 spent much of Wednesday's meeting deliberating the time frames stipulated under the legislation within which individuals must be brought before a judge to determine whether they are granted or denied bail.

The main issue raised by Assistant Attorney General Jeffrey Foreman is the potential for individuals suspected of committing an offence under the pre-charge bail regime, waiting longer than a person who has been charged to be brought before a judge. This arrangement, he said, infringes on the individual's liberty.

The pre-charge provision, found in Clause 5 of the proposed Bail Act, applies when someone is arrested or detained on reasonable suspicion that he/she has committed an offence that is punishable with imprisonment, and more time is needed for investigations.

"I have noted that in my read of the legislation the pre-charged person waits a longer period of time (assuming the maximum time period is used). They await a longer period before they are required to go before a judicial officer, and that creates an anomaly between Clause 6 (1) [and Clause 5 (1) which speak to] the consideration about being granted bail in the first instance," he said.

Under 5 (1), the question of bail to a defendant shall be directed in accordance with this Act by a deciding official within 48 hours after the defendant is arrested or detained on reasonable grounds that the defendant has committed an offence in any case where such a defendant has not yet been charged because more time is needed to proffer charges.

Clause 6 (1) states that for the purpose of deciding the question of bail in a case falling under Section 5 (1) a, which is the pre-charge regime, the deciding official considers those matters and shall either grant bail or refuse bail. Where bail is not granted to the defendant, a constable shall bring the defendant before a judge at a parish court within 48 hours after the period limited under subsection 1.

"So my interpretation on that provision is that you could have a situation where there is a maximum of 96 hours before the individual [pre-charge person] is brought before a judge," he said.

Chair of the committee and Minister of Legal and Constitutional Affairs Marlene Malahoo Forte interjected to say the policy intent is to treat a defendant at the different stages of the legislative process differently.

"The one thing that is in common for the pre-charge and post-charge regime is that the deprivation of liberty is as a result of reasonable suspicion that the person has committed an offence — that is the threshold that you have to cross in order to engage the liberty of the person, and that is standard," she said.

Malahoo Forte further explained that post-conviction, people's liberty is deprived because of the finding of guilt, depending on what the sentence is.

"So the policy intent is to deal with the stages a little differently even though we are trying to harmonise some of the provisions, because once you have charged the person you really should move expeditiously to get to trial within a reasonable time. The person who has not yet been charged but who is reasonably suspected of having committed an offence is at a different stage of the proceedings and different considerations may apply. But once you have completed your investigation, once you have material to satisfy the ingredient of the charges, then the policy expectation translated into the law is that you must move to deal with that person as expeditiously as possible. It's deliberate legislating as a result of deliberate policymaking," she insisted.

Foreman noted, however, that his concern is to mediate that policy intention "in a way that is coherent with the legislative scheme and having regard to the core guiding principle of the deprivation of liberty prior to conviction, which is that a judicial officer should, as soon as possible, be in a position to supervise the executive's decision to detain the person or to place conditions on the person's liberty".

Opposition committee member Donna Scott-Mottley also expressed concern with the provision, which she said deprives individuals of their liberty for an extended period before judicial intervention.

"The constitutionality of somebody who is suspected being given 96 hours before they face a judge, as opposed to the 48 hours for somebody for whom a determination has been made that the person is to be charged, is problematic," she said.

Scott-Mottley also questioned the six-month time frame for the initial investigation of an individual suspected of committing an offence, which she said "is still to me a very long period".

"I would propose that we have this segmented so that a period of, say, one month be allowed for the police officer to continue his investigations, and if he cannot conclude that in the time then it should go before the judge, and the judge should then have the authority to require the defendant to be brought back before the court in a timely manner," she said.

BY ALECIA SMITH Senior staff reporter

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