The Bail Act 2022, which will reform the bail framework in the criminal justice system, was tabled in the House of Representatives on Wednesday (Oct. 5).
The legislation, which will repeal and replace the existing Act of 2000, consists of 24 Clauses and four Schedules.
Minister of Legal and Constitutional Affairs, Hon. Marlene Malahoo Forte, who tabled the Bill, said it will strike the right balance between the rights of Jamaicans and national security needs.
She said it 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.
“Witnesses are being threatened or even murdered, many who provide credible intelligence to the police are often reluctant to proceed further to enable the police to convert that intelligence to evidence. Sometimes, Madam Speaker, witnesses and immediate victims are themselves part and parcel of the criminality, resulting in varying levels of investigative complexities…These and other documented peculiarities in our Jamaican society necessitate innovative responses legislatively and otherwise,” she said.
Minister Malahoo Forte said the legislation will not remove the constitutional entitlement that an accused has to bail.
“The Bill honours the entitlement to bail that is guaranteed in Section 14 (4) of the Constitution, which provides that any person awaiting trial and detained in custody shall be entitled to bail on reasonable conditions unless sufficient cause is shown for keeping him in custody,” she said.
Highlighting provisions of the legislation, Minister Malahoo Forte explained that Clause Seven speaks to the circumstances in which bail may be denied.
“Clause Seven (2) is a special provision in relation to defendants charged with the offence of murder where self-defence does not arise and where the murder is committed in circumstances amounting to capital murder or where the offence is committed in a Zone of Special Operation (ZOSO), an area under a state of emergency or where a cordon has been established or a curfew imposed,” she pointed out.
She explained that the conditions of bail in Clause Eight are to ensure that the defendants surrender to custody, does not commit an offence while on bail or interfere with witnesses or otherwise obstruct the course of justice in relation to himself or others.
“The law provides that some conditions may only be imposed by a court, and these include surrender of travel documents, imposition of curfew and the wearing of electronic bracelet. This is a new provision,” she noted.
Clause Nine sets out the general provisions relating to bail.
“Conditions imposed may be varied on application of the defendant or the prosecution. New application for bail may be made in defined circumstances and those are set out at Clause 9 (3).
“That essentially, is where there is a change in circumstances since the previous consideration, or where applicable or relevant facts were unavailable or did not exist at the time. Bail can be revoked in defined circumstances including where the defendant absconds, breaches a condition of bail or commits an offence while on bail,” Minister Malahoo Forte explained.
She said all information regarding the granting or refusal of bail are to be recorded in prescribed form and to be disclosed to both the defendant and prosecution. “This is for really greater protection of the parties and for administrative ease,” she noted.
The new Bail law will permit a grant of bail at three stages –pre-charge, post-charge, and post-conviction in defined cases.
Minister Malahoo Forte explained that 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, who is neither the arresting officer nor an officer involved in the investigation of the offence.
“In cases of pre-charge bail, the police officer is to be at the rank of or above superintendent of police,” she indicated.
The Minister said that the question of bail in relation to a child is to be determined by the Children’s Court in accordance with the provisions of the Child Care and Protection Act, with requirement that for a parent or guardian, who gives consent of surety, ensures compliance with conditions of bail by the child, until the child attains the age of majority.
The legislation is to be reviewed by a Joint Select Committee (JSC) of the Houses of Parliament.
Opposition Spokesperson on National Security, Fitz Jackson welcomed the legislation being placed before a JSC.
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