Every year thousands of Jamaicans are arrested, charged and then brought before our courts. In some instances, bail is offered at the police station or by a Justice of the Peace, but the vast majority of persons are taken to a Resident Magistrate's Court for bail application.In some cases, particularly in gun-related offences in the Corporate Area not involving gun murder, the accused person is taken directly to the High Court Division of the Gun Court.
The Bail Act (hereinafter called 'the Act') was enacted in 2000 to provide a clear procedure for the granting of bail. In the first place, it must be noted that section 22 of the Act provides that: "Where a person who is arrested or detained within twenty-four hours after such arrest or detention, he shall be brought forthwith before a Resident Magistrate or a Justice of the Peace who shall order that the person be released or make such other order as the Resident Magistrates or the Justice of the Peace thinks fit, having regard to the circumstances" provided that if an identification parade is pending the suspect/accused person shall not be brought.
It must also be noted that section 3 of the Act makes it clear that: "Every person who is charged with an offence shall be entitled to be granted bail." Further the Act provides that: "A person who is charged with an offence shall not be held in custody for longer than twenty-four hours without the question of bail being considered."
Refusing bail
Most of the problems arise when the application for bail is made before a Resident Magistrate or a Supreme Court judge and bail is refused. Section 8 of the Act makes provision for the Resident Magistrate, upon refusing bail, imposing or varying conditions, to give reasons for so doing. These reasons must be given to the accused or his representative within 24 hours. If the accused is not represented, the Resident Magistrate is under an obligation to inform the accused of his right of appeal.
After the refusal of bail, if the attorney-at-law acting for the accused in the bail appeal acts expeditiously, it is very likely that a Judge in Chambers in the Supreme Court will hear the appeal and in reviewing the action of the Resident Magistrate may grant, refuse or vary conditions of the bail.
It seems that the appeal to a judge in chambers at the Supreme Court is the final appeal process for an accused person from the Resident Magistrate's Court except in a situation where a person was granted bail before conviction and sentence and after conviction and sentence where the Resident Magistrate refuses to continue his bail, that convicted person may appeal to the Court of Appeal.
Appeal processm
The obvious weakness with respect to the appeal process under the Act is that the accused person who is not convicted and whose bail has been refused by the Resident Magistrates should have the right of appeal to a single judge of the Court of Appeal and if necessary to have a further right of appeal to the Court of Appeal, sitting as three judges.
Another obvious weakness with the appeal process is the fact that it seems that where a Supreme Court judge denies bail, there is no right of appeal. For instance, where the accused person is taken directly to the Gun Court he faces a Supreme Court judge and if bail is denied he must remain in custody until the matter comes before the court again or in the event that there are new developments requiring urgent action, the matter could be relisted to come back before a Supreme Court Judge, in the Gun Court for review. There is no right to bring the matter to a judge in chambers or to ask for an appeal to the Court of Appeal. Neither is there an a right for the Supreme Court Judge to give reasons for refusing bail and to advise the accused of any right that he may have to appeal.
The bail Act was meant to solve many problems but it is clear that the legislature in enacting the Act formed the view that the real problems with bail are at the level of the Resident Magistrate's Court without recognising that thousands of bail applications are also made before Judges of the Supreme Court in the Gun Court, the Circuits Courts in all the parishes to include the Home Circuit and the refusal of bail by a Supreme Court Judge in the Gun Court, Circuit Court to include Home Circuit, could significantly affect the right of the accused persons to liberty, without having a right of appeal to the Court of Appeal or to have another Judge in the Supreme Court review the bail application in Chambers. Something MUST be done URGENTLY. On behalf of the voiceless, I call for HELP.
Keith N. Bishop is an attorney-at-law and partner in the firm of Bishop & Fullerton. He may be contacted by email at knb@bishopfullerton.com or knbishop@gmail.com
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