Senior Counsel Larry Smith has labelled the Bail (Amendment) Act “a dangerous piece of legislation” as it removes the power of judges to make considerations in granting bail in certain circumstances.
Making his case before the Court of Appeal on Tuesday in the matter of Lamar Antonio Jones vs the Attorney General, Smith, who leads Jones’ legal team that also includes attorneys Jamar Bourne and Brent Chandler, said the decision of Parliament to change the Act to remand persons charged with murder or serious firearm offences for 24 months before they could qualify for bail, called into question the separation of powers between the State and the judiciary.
“So Parliament has now told you what you are to do, and they have also told you what you cannot do. So the question which must be considered is, is the judiciary independent, or has Parliament now encroached on the domain specifically for the judiciary?” he questioned.
Smith submitted to Chief Justice Sir Patterson Cheltenham and Justices of Appeal Margaret Reifer and William Chandler that the exception clause outlined in the Act, that bail could be granted if the evidence was viewed as weak, also came with its issues.
He noted, for example, that judges could grant bail if the evidence was not strong, pointing out that this information would have to come from the police and if it was not brought to the judge, no decision could be made on granting bail.
“So your ability is hamstrung by another functionary of the State. So are you really independent? It does not seem so to me. How often in these courts do we hear the file is not ready, and we send it to the people at the (Office of the Director of Public Prosecutions), and they say we haven’t gotten a file from the police as yet? . . . So, in other words, that retention is not real. It is a farcical retention. You have no power in the issue of bail in these circumstances. The court has none because any power you have is reliant on police or the prosecutor,” he stressed. “The exception is not really an exception but a significant curtailment of the judges’ power.”
You Might Be Interested InThe senior counsel cited the Attorney General’s speech to Parliament in presenting the amendment: “After 24 months, you are entitled to apply for bail, but my job is to ensure that after the 24 months, you are either convicted or acquitted. We would not be tolerating these situations where cases drag on and on.”
Smith stated that it would be useful to find out whether trials were moving more swiftly in the present-day situation.
“This Bail Amendment Act, submitted before, is a dangerous piece of legislation. Not only is it a fetter on the judiciary, it seeks to cut off the right to liberty at its feet,” he added.
Smith also argued that the reasoning behind the amendment to the Act was to prevent persons charged with serious offences from reoffending while on bail; however, it encompassed all citizens, including first-time offenders like his client.
Asked by the Chief Justice whether he saw the amendment as going beyond the parameters of which it had originally defined, the senior counsel responded in the affirmative.
“It is an unfortunate — and I do not think this is what was designed to do, let me make that abundantly clear — attack on the role of the judiciary in dispensing justice vis-à-vis granting or withholding bail. It may not have been the intention, but that is the clear effect of it,” Smith pointed out.
He earlier submitted that if the issue was the length of time persons were on bail before being brought to trial before the law courts, the Attorney General should have put measures in place to reduce this wait.
Smith will continue his arguments on Wednesday.
Senior Counsels Leslie Haynes and Sir Elliot Mottley, Deputy Solicitor General Marsha Lougheed and attorneys Noah Haynes and Kashawn Wood are representing the State in the appeal.
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