Amended Bail Act Approved by the House

The Bail Act 2023, which will reform the country’s bail framework in the criminal justice system, was passed in the House of Representatives on Tuesday (July 25).

The legislation, which will repeal and replace the existing Act of 2000 was approved with 20 amendments.

It was reviewed by a Joint Select Committee of the Houses of Parliament. The new Bail law will permit a grant of bail at three stages –pre-charge, post-charge and post-conviction in defined cases.

Closing the debate on the Bill, Minister of Legal and Constitutional Affairs, Hon. Marlene Malahoo Forte, said it represents an overhaul of the law on bail following a thorough review.

“It reflects consideration of internationally accepted best practices as well as taking into account local realities which we cannot escape. This Bill seeks to address the grant of bail in a holistic way encompassing and clarifying the grant of bail at three stages-before charge, after charge and after conviction,” she said.

She noted too that it cogently sets out the scheme for bail to avoid doubt and unintended consequences.

The Minister said the right to bail rests on the fundamental principles that every person is entitled to his liberty.

“The right to liberty however is not absolutely guaranteed under the constitution of Jamaica. It also rests on the other principle that every person is presumed to be innocent until he has been proved or has pleaded guilty when charged with a criminal offence,” she said.

“This does not mean that the person suspected or formally accused of an offence did not commit the offence. It means that the person cannot be convicted before going through a formal process,” she said.

Leader of the Opposition, Mark Golding, said the Joint Select Committee process was vital “to take us where we are now with this piece of legislation.”

“The new Bill that was tabled last week replacing the one that was originally tabled incorporates the deliberations of that committee to the extent that the committee members generally were willing to sign the report…indicating broad agreement with the Bill in the form that it now takes,” he said.

Highlighting provisions of the legislation, Minister Malahoo Forte explained that in the case of the defendant, who has been charged, if the offence is not punishable by imprisonment, bail is granted unless it appears to the deciding official that there are grounds to justify the continued detention of the defendant.

“For example, where a defendant is being kept in custody for his own protection and this is a matter that the Constitution itself addresses,” she said.

She explained that in the case of a defendant who is charged of an offence that is punishable by imprisonment, the deciding official shall grant bail unless there is sufficient cause for holding the defendant in custody.

“This is after considering the matters which are specified in the Clause and among those matters are the likelihood of the defendant absconding or committing an offence while on bail,” the Minister said.

“Clause Six also provides that if the offence is capital murder and self-defence does not arise on the prosecution’s case or the offence is murder and it was committed in in a Zone of Special Operation (ZOSO), an area under a State of Emergency or where an area within which a cordon is established or a curfew imposed, those circumstances may be considered as sufficient grounds for keeping a defendant in custody,” she pointed out.

She added that these are matters that have to be established, noting that once established, the court makes the determination.

“In the case of a defendant who has been convicted and who was on bail before being convicted, the judge may grant the application if satisfied that there are exceptional circumstances to so warrant,” she said.

Clause Seven, she said, addresses extension of period of release on bail or unconditional release of defendant who has not been charged.

“This clause empowers a judge to consider an application for the extension of bail granted to a defendant who has been arrested or detained but has not been charged, provided that the Bail is not permitted to continue beyond six months and an additional period of up to six months or such shorter period as considered appropriate,” the Minister noted.

The Minister said the judge is required to consider several factors if bail should be extended, including the stage of the investigation and the way they have been conducted.

She added that these include how expeditiously they have been conducted; whether further time would enable a charge to be preferred against the defendant and the reasons given as to why the defendant has not yet been charged.

“If after the period for bail has elapsed including any extension that may have been granted, if the defendant is not charged, he must be released unconditionally. This provision is designed to hold the investigating or arresting officer to account in order to justify a defendant being placed in the pre-charge regime while the case file is being completed to ground the charge,” she said.

The Minister explained that the conditions for release on bail in Clause Eight are to ensure that the defendant surrenders to custody, or appears for trial at the appointed time, does not commit an offence while on bail or interfere with witnesses or otherwise obstruct the course of justice.

Clause Nine sets out the general provisions relating to bail.

Minister Malahoo Forte said the Bill sets out very clearly, who the deciding official is who will grant bail, noting that essentially, this is the judge, the justice of the peace and the police constable at or above the rank of superintendent, who is neither the arresting officer nor an officer involved in the investigation of the offence.

She noted that under Clause Five, provision is now being made that where there is to be an identification parade, it must be conducted within 120 hours of the arrest or detention of the defendant.

“If the identification parade is not held within that time, the matter is then to be referred to a judge no later than 48 hours after that 120-hour period has elapsed and the time lapse is provided to ensure that administrative issues are speedily dealt with and completed,” the Minister said.

She added that the judge may either specify further time for the conduct of the identification parade period following which the defendant must be brought before the judge to have the question of bail determined or he may make such other order as he thinks fit, including in the absence of the defendant, to avoid any prejudicial exposure of the defendant.