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Bail can’t depend on length of judge’s foot

Sybil Hibbert - Guest Columnist
Sunday, September 16, 2012

THE grant of bail ought not to depend on the length of the judge's foot as the equitable remedy did in a Court of Equity in London years ago, when it depended on the length of the Lord Chancellor's foot.

Judges should apply set principles in determining whether or not bail should be granted in any criminal case. The Bail Act in Jamaica does not take away the discretion of the judges as to the circumstances in which bail is granted; the judge still has a discretion to refuse bail and is not obliged to grant bail in every case.

Having said all that, I note with great concern, the practice in recent times, whereby certain resident magistrates and judges of the Supreme Court, have been granting bail in cases of murder and firearms possession, and yes, sexual offences, as if they were awarding scholarships for good grades.

It is my view that the Chief Justice, the Hon Mrs Zaila McCalla — if she has not already done so — should issue some practice guidelines to the judges of today on the question of bail. For, it is common knowledge, under the Common Law, that bail should only be granted in extreme and exceptional circumstances to offenders charged with murder.

Just a few days ago, all Jamaica heard and/or read the sad tale whereby the life of a young used-car dealer from St Elizabeth was cut short by three marauders, one of whom had previously been before the court on a murder charge and been granted bail.

My question is: if the principle of law has not changed, what exceptional circumstances were advanced in the particular case to warrant the granting of bail to the accused man; so much so, to allow him to be at large for there to be an allegation that he is one of three who participated in taking the life of this 27-year-old used-car dealer?

If the law has changed, pray tell me what is the new principle of law on the subject.

Public opinion at this point in time has given our justice system, a very low rating in terms of overall performance — with special reference to trial and disposal of cases and availability of court documents/files — having regard to the spiralling crime rate and the handling of bail applications, in certain cases.

It is true that although a Judge of the Supreme Court has jurisdiction to consider applications for bail in any criminal case, such a judge, in my view, should decline to exercise that jurisdiction where the case is still within the jurisdiction of the inferior court. Why? Because the magistrate would be better placed than the Supreme Court judge in determining the question of bail.

This is due to the fact that the magistrate in the lower court is actually seeing the accused, and, in most cases, the magistrate is provided with the antecedents of the accused person.

Where the magistrate denies bail, the Supreme Court judge does not have the record of the offender, because the arresting officer usually appears before the magistrate, opposing bail and giving the antecedents as a possible reason for opposing.

Then, if the Supreme Court Judge should grant bail while the case is still pending within the jurisdiction of the resident magistrate, when the accused returns before the resident magistrate, bail can be revoked and the accused taken back into custody, thereby overruling the order of the Supreme Court Judge.

This is so because bail only lasts from one appearance to another. In other words, bail is only valid until next time.

So that the bottom line is, that unless and until we have firmer magistrates and stronger judges of the High Court, the tactics whereby counsel, upon denial, will move a bail application from before the Resident Magistrate — and I am not saying counsel does not have the right so to do — and go before a Supreme Court judge, preferably one with limited experience, and obtain bail, willy nilly, for serious crimes allegedly committed, ought to be discontinued.

And certainly, this practice, I think, if encouraged, will only bring the Supreme Court, the judiciary and the entire legal profession into public odium and disrepute. As a matter of fact, some of the antics I see going on in some of our courts today, could only have been dreamed about a decade or two ago.

Now, where murder is concerned, because it is the number one crime in Jamaica, bail should only be granted in exceptional cases, as I said before, but I also believe this should be extended to all cases involving serious crime because possession of a firearm illegally is now the scourge in this country. Too many lives have been lost without rhyme or reason.

A case in point for those who have not too distant memory, where a man pleaded guilty in the Gun Court to possession of two illegal guns. He was 'slapped on the wrist' when he was given a suspended sentence by an acting judge of the Supreme Court. He is now dead at the hands of his cronies.

Having regard to what is taking place in Jamaica today, it is fitting, in my view, for firearm offences to be placed on the same level as murder; so that this would encompass, cases of illegal possession of a firearm, as well as offences of shooting with intent and wounding with intent, with an illegal gun.

Not only should the likelihood of the offence being repeated be taken into account in considering bail, but also the nature and gravity of such offence or offences. People get bail and go back out there and do the same thing, and worse, all over again.

As a matter of fact, before determining bail in a murder case or illegal possession of firearm, a resident magistrate should always enquire whether an accused has any previous conviction. In such a case, the most, to my mind, that can or could happen is for defence counsel to ask the magistrate to recuse himself/herself and another magistrate would have to hear the matter — that is, in the Gun Court.

This would not arise in a case of murder or manslaughter because the magistrate alone cannot try these cases, such cases being triable.

Indiscriminately granting bail to repeat offenders not only makes it more frustrating for the police to have to deal with the same offenders on the streets, but it also puts temptation in their way to try to solve the problem by means of what is termed extrajudicial killings. It is also a temptation for people to take matters into their own hands and apply ‘jungle justice’.

There is also the question of granting bail to offenders not resident in Jamaica and who may have an intention to evade trial by taking flight, even though their travel documents have been ordered seized by the police. There have been cases where this has been known to happen.

And what about interference with witnesses while on bail? And in some instances, witnesses have been reported missing — even killed — while the offender is refused bail and is remanded in custody.

Lastly, there is a Bill dealing with sexual offences which was dealt with in our Parliament not so long ago. My interest has to do with the point where, if one is summoned to attend court and fails to obey (for any reason) that person can be sentenced to two years' imprisonment.

As I understand it, this is a procedural misdemeanour rather than a substantive offence. Is anything going to be done about this piece of legislation? Who is responsible for drafting it?

How the Office of the Legal Draughtsman must miss the likes of people like the late Chappie Marsh and people of that ilk?

Our justice portfolio, I must say, needs a new and redefining look.

Over to you — Minister of National Security Peter Bunting; Minister of Justice Mark Golding and Chief Justice, Mrs Zaila McCalla.

Sybil E Hibbert is a veteran journalist

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