FEARS regarding the constitutionality of the pre-charge bail provision set out in the proposed Bail Act 2022 have been allayed by the Attorney General's Chambers from which the joint select committee now reviewing the legislation had sought guidance.
Highlighting key points in a 21-page letter he had written to the committee, Assistant Attorney General Jeffrey Foreman affirmed the constitutionality of the provision during the committee's meeting on Thursday.
He said questions had been raised in submissions made by various groups regarding whether there was any constitutional basis for any form of regime that could permit detention of an individual prior to charge, and whether any conditions akin to bail could be imposed on such a person.
"I considered those submissions in the context of Section 14 of the constitution of The Charter [of Fundamental Rights and Freedoms] and against the background of the interpretations that I was able to find that have been placed on those provisions by the courts of Jamaica, as well as the interpretation placed on Article 5 of the European Convention on Human Rights," said Foreman.
He said that the broad conclusion is that there is at least an arguable basis to conclude that Section 14 (1f) i of the constitution permits arrest or detention of a person on reasonable suspicion of having committed an offence.
"[This is] in circumstances where there is insufficient evidence to lay a charge against that person and that anyone who is arrested or detained, pursuant to that provision, is entitled to be released, either unconditionally or on reasonable conditions, to secure attendance at a later stage of the proceedings. Those particular provisions in pre-charter regime have been accepted as contemplating the imposition of bail," he said.
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.
Foreman said the submissions on this aspect that have been made to the committee, in large part, argue that the constitution, in particular the charter, does not use language, to their minds, that speaks to pre-charge bail.
The Jamaican Bar Association, in its submission, had contended that adoption of this pre-charge bail concept would be unfair as it would infringe on the rights of an ordinary citizen who has not been charged with a criminal offence.
Representatives of Norman Manley Law School and human rights group Jamaicans For Justice (JFJ), in their submissions, had also taken issue with the constitutionality of the pre-charge provision of the Bill. The Independent Jamaican Council for Human Rights (IJCHR) and the Cornwall Bar Association also had difficulty with the provision.
In the meantime, chair of the committee and Minister of Legal and Constitutional Affairs Marlene Malahoo Forte, who has long been defending the constitutionality of the provision, thanked the Attorney General's Chambers at the end of the meeting Thursday for providing clarity on the matter.
"I didn't expect the opinion from the chamber to say otherwise because it would mean that we have not done our work in bringing the provisions here. So we had in fact reviewed, researched the matter, and were of the view that the pre-charge bail regime can be properly accommodated in our constitutional provisions under Section 14 â€” and I thank the [Attorney General's] Chambers for its extensive 21-page opinion affirming that decision," she 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 persons who commit serious crimes are not able to threaten, intimidate or harm witnesses.