This week’s featured development as Newsmaker of the Week just ended is the dramatic declaration by Minister of Legal and Constitutional Affairs, Marlene Malahoo-Forte, that persons charged with murder and gun offences will be denied bail under the proposed new Bail Act.
With Jamaica’s ballooning murder rate, the Government remains under immense pressure to find adequate solutions to address homicides and other criminal activities that are being driven by lotto scammers and young men reportedly collecting as little as $15,000 to carry out hits on behalf of other persons.
That worrying trend of the prevalence of hitmen was raised by Police Commissioner, Major General Antony Anderson, on Tuesday at a police press conference, where he also revealed that three persons of interests who have been listed in relation to two mass shootings last Sunday, were on bail at the time of the offences.
Jamaicans and members of the Jamaica Constabulary Force (JCF) have long expressed anger at the courts after people charged with murder go on to commit other murders, and likewise, individuals charged with gun crimes who then allegedly feature in new crimes after being granted bail.
And with gun crimes being featured in up to 80 per cent of killings locally, according to police statistics, law enforcement authorities have been clamouring for amendments to the Bail Act.
But defence attorneys have, instead, been urging the police to improve the quality of their investigations, rather than pressing for changes to the Bail Act, and sometimes blaming at judiciary, which, in turn, has sometimes seen members pointing the finger at legislators.
Amid those calls and pointing of fingers, legislators have been huddled together for the last several months in a joint select committee of Parliament reviewing the existing Bail Act and contemplating changes.
Then on Tuesday afternoon, during her first contribution to the sectoral debate as a Government minister for a new ministry that was created in January of this year, Malahoo-Forte hinted at the changes to the Bail Act that have since sparked a raging public debate.
“I should like to advise the honourable House that a new Bail Act is coming. I wanted to table it today (Tuesday), but we are revising the wording of some clauses,” the minister told her parliamentary colleagues and the nation.
“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 added.
But as soon as she made the intentions of the Government known, a trail of criticism flowed from some prominent members of the legal profession, in particular, the defence bar.
Leading the way in the criticisms was prominent attorney Christopher Townsend, who likened the suggested Bail Act change to the Pope revamping the Bible.
“If what I see as a headline is right, I was of the view that it must have been fake news; that was my initial response,” Townsend said during an interview with Loop News on Wednesday.
“That is like the Pope saying he is going to revamp the Bible… this is something that they have been toying with for a while, and the fact that it keeps coming up via the same source, suggests that it is an agenda being held by that Administration and they are not letting it go,” he added.
According to Townsend, the suggested move by the Government would be a dangerous constitutional overreach by the present Administration.
“They are not letting it go. From where I sit, that is a weapon of mass destruction because if you do that, you will be arming the other party with a powerful weapon and opening the door to trample on people’s rights, and the right to bail is an exceptional right that is being whittled away slowly.
“This is a huge overreach; leave the judges alone; allow them to do their job; you don’t need to do it for them,” a clearly passionate Townsend said.
Christopher Townsend (left) and Peter Champagnie.
In weighing into the discussion, Queen’s Counsel Peter Champagnie argued that Malahoo-Forte’s move “does violence to our Charter of Rights.
“Any idea or notion to restrict the discretion of a judge in the granting of bail in murder or gun cases is ill-advised. Firstly, it does violence to our Charter of Rights that is enshrined in our Constitution, where there is a right to bail.
“Secondly, it comes dangerously close to infringing on the separation of powers doctrine, which acknowledges the independence of the judiciary as a separate arm of Government,” said Champagnie.
Townsend said judges are not instruments of the State, and should not rubber-stamp a policy position promulgated by a political administration.
“The judges are there to infuse the human element into the justice system, so it is not just some stoic entity of Government, it is human-based, and that’s why judges are there. They are not there to rubber-stamp, but to put the human element into the system so that justice and balance can be achieved for the individual,” said Townsend.
Champagnie also challenged assertions that have been made by the police about routine reoffending by individuals on bail for gun crimes.
“Where is the empirical evidence that the majority or even a significant number of persons who are granted bail re-offend?” he questioned.
“Caution must also be given to the fact that in other jurisdictions within the region, the unconditional denial of bail for persons charged with murder has been held to be unlawful,” Champagnie said.
Other prominent lawyers with years of experience in the legal profession also waded into the discussion.
Senior defence attorney Bert Samuels, in a radio interview, said he was wary of the Government’s suggestion to deny bail to individuals on murder and gun charges, declaring that it removes the presumption of innocence.
He insisted that the Government is overstepping, since the “basis of our democracy” is the presumption of innocence.
In citing the scenario of when a man is charged with murder and is denied bail for five years, the attorney said if the witness cannot be found once the trial commences, then the accused would have “virtually served a sentence” and waited years before being released.
Another longtime attorney, Clyde Williams, took issue with the police suggesting that the island’s judges grant bail “just willy-nilly”.
Williams said the prosecution can also appeal bail if they are of the view that bail should not be granted to an accused person.
This is a point that was made by Champagnie in an interview with Loop News last month. He note, as well, that the prosecution can appeal bail being granted to accused persons in Jamaica, but said that is almost never done in Jamaica.
“For example, if it is that someone is offered bail and the prosecution believes that is an unjust decision by the judge and there is no basis for having made that decision, then the prosecution has that tool available to appeal that decision, and that law was passed some time ago. (But) Since the passage, it has only been used one or two times,” stated Champagnie at the time.
“You can’t sit down as a prosecutor and you criticise and complain and say this persons should not have gotten bail; use your powers!” chided Champagnie.
Back on the issue of persons charged with murder and gun crimes being likely to be automatically denied bail soon, attorney Isat Buchanan contended that judges are the best persons to determine bail for individuals, instead of the Government.
“This is most unfortunate,” he said in a media interview regarding the intentions of the Administration.
Continuing, he said: “… And the Government’s attempt to creep the unconstitutional detentions of persons is reminiscent of its unlawful use of detention under the state of emergency.
“Innocent people will find themselves stuck in detention from mediocre investigations and a fornication with due process by an overworked justice system,” Buchanan maintained.
In her first public commentary since making her controversial announcement regarding the pending Bail Act, Malahoo-Forte assured those concerned members of the defence bar that the discretion of judges to grant bail will not be taken away under the new legislation.
“Absolutely not,” the minister said in response to a question in a radio interview on Wednesday morning on whether judges’ discretionary powers to grant bail would be taken away.
Malahoo-Forte, a former resident magistrate (now called parish judge), also said Parliament cannot remove the right of an accused person to apply for bail.
However, she indicated that the new Act will provide guidance under a new criteria to judges and other deciding officers, including police officers, relative to the granting of bail.
“The Act will strike a proper balance; it provides for a number of things, including the criteria that should guide the judges’ discretion, and some of them are already set out in the existing law.
“We are adding new ones, having regard to the peculiarity of the Jamaican society, because laws are never passed in a vacuum,” she indicated.
Still, the overall changes being proposed to the Bail Act to deny persons bail have not gone down well with the Jamaican Bar Association (JAMBAR).
“We were surprised to learn of these intentions by the Government,” the association said in a statement on Wednesday.
“This is a course that was taken by a previous Administration in 2010, which ended with our Supreme Court holding those amendments to be in violation of the Constitution of Jamaica. (Adrian Nation v The Director of Public Prosecutions and The Attorney General of Jamaica Consolidated with Wright, Kerreen v The Director of Public Prosecutions et al case number 2010HCV5201. Date of Delivery 15.07.2011),” it continued.
“The law has been very clear that the seriousness of an offence/allegation is not, by itself, sufficient cause for keeping a person in custody pending his trial.
“The reason for this is another Constitutional Right: because ‘every person charged with a criminal offence shall be presumed innocent until he is proved guilty’,” JAMBAR contended.
But it appears the police are not standing by that constitutional right.
In responding to the ongoing public debate on bail, Police Commissioner, Major General Antony Anderson, is remaining resolute that persons on serious crimes, including gun and ammunition offences, should remain in custody.
Major General Antony Anderson
In pointing out that over 400 people have been charged for gun offences so far in 2022, Anderson reiterated that the gun remains the weapon of choice for criminals.
“Mainly we capture these guys with firearms and with ammunition… Those people need to stay in custody,” asserted Anderson during a tour of the St Catherine North Police Division on Thursday.
Likewise, former Police Commissioner, Owen Ellington, supported the proposal to deny certain categories of accused persons bail.
Ellington, who led the JCF between April 2010 and July 2014, claimed in a radio interview, that people released on bond pose a significant threat to society, including witnesses in their respective cases.
“There were large amounts (numbers) of the very violent offenders, especially those involved in gangs, who reoffend while they are on bail, and many of them get in confrontation with the police, (or) they go on to kill other citizens, or they go on to search for and kill other witnesses, and the kind of criminal activities that they were in, which are lucrative crimes, they continue in them, as well,” said Ellington.
Across social media platforms, the support for the Government and the police’s stance largely reigned supreme among the various comments weighing into the raging discussion.
On Faceook, for instance, several persons questioned the lawyers over their criticisms of the pending Bail Act.
“To you lawyers who are always quick to drag down proposals, are you seeing what’s happening in your country? Aren’t you the same ones who help the murderers get out? Shall the country just sit and allow crooks to take over?” quizzed Joseph Edwards.
Another Facebook user, Hal-romeo Haughton, wrote: “I understand clearly what is going on here. These so-call lawyers make a bag a money from this enuh, so a change in the system is not something they are willing to accept.”
Sonia Smith was critical of the island’s jurists and their issuance of bail to persons over the years.
“If judges were doing their jobs, there wouldn’t be so much crime… Lawyers find too many loopholes to slip clients back on the streets,” she opined.
For Demar Thompson, he swiped way outside the off stump in purported that, “These… (defence lawyers) don’t mean Jamaica well. They only care about their bottom-line under the veil of ‘rights’.”
In joining the conversation, Karen Daniels Gregory commented: “Repeat offenders and ppl (people) who commit gun-related crimes shouldn’t be given bail no way, no how. Dem fi stay there and suffer it out. No murderers at large. Agree with Marlene!”
Stephen Foster, however, disagreed with that narrative.
“So what if the person is not guilty and police charge the wrong person for the crime? Him fi siddung in jail a wait three, four or six years fi trial? Foolishness, and mi nuh agree with this madness!” Foster argued.
In replying to his comments, Gregory replied: “When di man is being sentenced him get deductions fi time a wait for trial, and if him never have a link to the crime, police wudnt charge him sir.”
On Twitter, @bryan16_errol stayed away from the dominant support for the proposed new Bail Act.
“I would believe the court… has the power to determine ‘whether… (or) not bail may be granted or must be granted’.
“Why try to limit judges? This goes above the level of guilt. ‘Bail is a manifestation of the presumption of innocence until guilt is proven’,” he tweeted.
In response to his remarks, @JillianGilchri5 tweeted: “And while pending manifestation of presumptions, innocent people often lose their lives… Too often persons who commit serious crimes are given bail and coincidentally witnesses lose their lives.”
On Instagram, more support reigned for the Government on the intended move regarding the Bail Act, but there were some exceptions.
Lollyginga commented: “The innocent is going to feel the wrath from the police, especially when they dislikes you… Some of our men are being discriminated (against), and only the victim can tell the tail. #the judge should make the call. #judge.”
In replying to that comment, professor.kok went somewhat below the belt in writing: “So you are afraid your favourite criminals get discriminated (against)? Really?
“How about innocent people getting discriminated by criminal is every day? Smh,” he questioned.