A veiled suggestion that the State is contemplating legislative changes to deny bail to individuals on gun and murder charges, although since withdrawn, has resurrected fears in several quarters with at least one attorney warning that the move would create a haven for individuals who use the justice system in personal vendettas.

Those reservations come based on a brief comment on Tuesday by Minister of Constitutional Affairs Marlene Malahoo Forte intimating that people charged with murder and gun-related crimes will be denied bail under an amended Bail Act as she made her contribution to the sectoral debate in the House of Representatives.

“… A new Bail Act is coming. I wanted to table it today, but we are revising the wording of some clauses. I will say no more at this stage, except that ‘if yuh on murder charge you cannot be at large and if yuh on gun charge yuh cannot be at large’,” she said then.

Speaking with the Jamaica Observer, Kemar Robinson, a defence attorney, said any such move would aggravate an already open Pandora’s box.

“I can only assume that that statement came about due to the crime situation in Jamaica especially in cases where persons who have been found committing serious offences are persons who were previously on bail for serious offences, but the reality is that you cannot trample persons human rights because of the crime situation, so the suggestion is for them to find other ways to deal with the issue of crime rather than interfere with person’s constitutional rights,” Robinson told the Observer Wednesday.

“What people must understand in Jamaica is that oftentimes you have individuals who, for their own personal vendetta, use the justice system as a means to get their enemies remanded. You cannot apply this situation wholesale,” Robinson cautioned.

According to the attorney, it is not uncommon for an individual to provide a statement to the police to cause charges to be brought against a person maliciously.

“It is something I have seen where persons have gone to the police station to make reports saying they saw persons committing particular serious offences and then those persons are charged, but the intention is not to come to court and give evidence. The intention is to have them spend considerable time in custody and then at the time of the trial a lot of times when you hear a Nolle Prosequi being entered or no evidence is offered as they cannot find witnesses, that is what has happened,” the attorney stated.

“I think the discretion should be left to the judge…do not remove the judge’s discretion. If the law says you cannot get bail, it is too absolute. Let the judge make the decision,” Robinson said.

In the meantime, defence attorney Alexander Shaw in responding stated simply, “I am not in agreement with that.”

“Lawyers do not live in an ivory tower nor are we aloof to the crime monster in Jamaica. But the contemplated course of action is just plain wrong. Bail is a constitutional entitlement, unless sufficient cause is shown to keep the accused in custody. I find it rather incredulous that the police have information about persons offending while on bail and this is not brought before the court’s attention,” Shaw argued.

“From my daily observation, no judge in this island, be it the High Court or the parish court gives a man charged in a gun or murder case bail, without adequate consideration. The case has to be very weak or witnesses unreliable from the earliest stage for such accused persons to get bail. The director of public prosecution can appeal a bail matter if she is of the view that it is unjustifiable. For those persons on bail, oftentimes the Crown does not oppose the application based on the information before them,” he told the Observer.

Said Shaw: “We cannot just point to other jurisdictions without due consideration of our realities. There are many murder and gun-related matters before the court where persons have been charged for many years. Some are on bail many are not. Why should an innocent man be imprisoned for years awaiting trial without bail? No empirical data has been presented to justify this course. Until then, I am not amenable to this change. A wholesale approach is just plain wrong,” he added.

Meanwhile, Carla Gullotta, executive director of human rights group Stand up for Jamaica (SUFJ), said the minister’s statement, while “not clear enough to offer all needed details to be fully endorsed or rejected,” has raised a number of concerns.

“This will raise all sorts of problems with both constitutional reform and the Bail Act. The other thing is the role assigned to the judges; their ruling should not be determined by the position of the State. My main concern is that constitutional reform (should not) breach human rights and I think infringing human rights is not going towards a more democratic process,” Gullotta said.

“It is even more concerning because we have been experiencing a huge amount of people which have been unlawfully detained especially under the states of emergencies (SOEs) and the zones of special operations (ZOSOs) and they have been released after 90 days without any charges so that has been affecting their life but any formula like this would dramatically affect the rights of those who have been detained unlawfully,” she added.

And the Jamaican Bar Association, in a biting critique of the suggestion, said, among other things, “instead of denying bail to all persons charged with these offences (which invariably includes persons who will ultimately be acquitted), greater effort and resources should be spent in shortening the time between a criminal charge and a conviction of the guilty. The Government should be more focused on ensuring that those who are detained/incarcerated in custody are guilty of the offence charged”.