No bail for the wicked?
Yes! Even the alleged murderer and person charged with rape are entitled to bail. Shocking, isn’t it? Perhaps even morally reprehensible, after hearing the revelation of the gory details of some of these allegations. Notwithstanding these allegations, the fundamental principle for an application for bail is that every citizen of Jamaica has a right to liberty, and our constitu- tion provides that every person who is charged with a criminal offence is presumed to be innocent until he has been proved guilty, or has pleaded guilty.
Bail was recently offered by a judge in the Saint Ann’s Bay Parish Court to a farmer who allegedly buggered a five-yearold boy. No doubt, such an allegation is a very serious one, but until a court, properly constituted, finds this man guilty, or he pleads guilty to this heinous crime, they remain allegations.
It is relatively easy for citizens to criticise judges for granting bail to individuals who have been charged with serious offences; however, judges are not permitted to deny bail upon emotions or public perception. The court is duty-bound to follow the Constitution of Jamaica, as well as the Bail Act, in arriving at a proper decision on this sacred right to liberty.
Section 14(4) of the Charter of Fundamental Rights and
Freedoms (Constitutional Amendment) Act 2011 states 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.” This provision lays the foundation for consideration by the judge in making a decision whether to deprive a citizen of his or her personal liberty and/or to curtail his right to freedom of movement. It must be noted, however, that these rights are not absolute and that bail may be granted subject to conditions.
Section 4 of the Bail Act outlines relevant circumstances in which bail may be denied. It provides, firstly, that bail may only be denied to a person who is charged with an offence that is punishable with imprisonment. Further, the section underscores the constitutional provision that those who wish to deprive the accused of his liberty must show reasons bail should be denied.
Section 4 further states that bail may be denied to the defendant where there are substantial grounds for believing that the defendant, if released on bail, would:
* fail to surrender to custody; * commit an offence while on bail;
* interfere with witnesses; and/or
* obstruct the course of justice.
If the defendant is charged with an offence allegedly committed while on bail, or where the court finds that the defendant should be kept in custody for his own safety, bail may be withheld.
In assisting with the judge’s decision, Section 4(2) of the Act states that the court, a justice of the peace, or police officer shall take into account:
(a) the seriousness of the offence,
(b) the defendant’s character and antecedents,
(c) the strength of the evidence against him,
(d) whether the defendant is a repeat offender or someone with previous convictions, and
(e) any other factor which appears to be relevant, including the defendant’s own health.
If the court finds that there are substantial grounds for refusing bail, the court has the discretion to consider whether imposing conditions can adequately manage the risks that may arise, such as withholding travel documents or requiring reporting conditions to a police station.
The harsh reality is that trials may be delayed by many months, or even years, given the number of cases brought before the courts. It would be a disservice to our constitution if, upon mere allegations of a criminal offence, a citizen is held in custody without bail until his day in court.
Let us be reassured that our judicial officers apply these principles in arriving at a consistent approach to the question of bail as each case must be considered on its own facts. Even the alleged wicked is innocent until proven guilty and has a right to his bail being considered.