The following is an analysis of one of six bills, designed to tackle the problem of crime and violence, now being debated by a joint select committee of Parliament.

THE BAIL (INTERIM PROVISIONS FOR SPECIFIED OFFENCES) ACT

One of the crime bills being considered by a joint select committee of Parliament, An Act to Amend the Bail Act, proposes that, in the case of certain specified offences, a defendant has the burden of proving to the court that bail should be granted to him.

That proposal is not in keeping with the provisions the Constitution: that a person charged with a criminal offence is presumed to be innocent, and that the prosecution, as a general rule, has the burden of proving every issue that may come to be in question.

Such a proposal, without more, therefore, could not stand, since it would offend against the fundamental rights and freedoms guaranteed by the Constitution.

The framers of the Constitution, in their wisdom, contemplated that special circumstances could arise in which it may become necessary, for a period of time, that strict observance of those rules might not be in the public interest or might prejudice the rights and freedoms of others.

The Government is of the view that the level of criminal activity in Jamaica at this time gives rise to that kind of circumstance. It has therefore proposed that a bill titled: An Act to Make interim provision in relation to the grant of bail in specified circumstances, be passed accordingly, "as a companion measure to other proposed legislation aimed at reducing crime".

Fundamental rights

As the bill itself explains, while it is acknowledged that sections 13 to 26 of the Constitution set out certain fundamental rights and freedoms of the individual, it is desirable, for the protection of the rights of others or the public interest, to introduce more stringent conditions regarding the grant of bail to persons charged with certain serious offences.

The bill proposes that the provisions of the act are to continue in force for a period of one year from the date of their commencement and shall then expire. This means that the provisions are to be regarded as being temporary in nature and that, while they are in force, the Bail Act should be construed as if these provisions were inserted as part of that act.

Amending the act

So, what is proposed amounts to, first, that the burden placed on a defendant, charged with certain serious offences specified in a schedule to the bill to amend the Bail Act, to satisfy the court that bail should be granted to him will have effect, notwithstanding its inconsistency with the provisions of the Constitution.

Second, the serious offences, referred to, include those with which the individual is charged, without more, and others for which he has previously been convicted.

Third, in either event, he shall be entitled to be granted bail only after the expiration of 60 days, commencing on the date on which he is first charged.

Legitimacy

The government law officers have not been able to point to any circumstance in which use has been made of section 50 of the Constitution, but they maintain that the legitimacy of its utility could hardly be questioned or denied.

Much controversy, however, surrounds the 60-day stricture that is being proposed in relation to any possible application for, and entitlement to, bail. It is said that the presumption of innocence is too hallowed a principle to be held hostage to such a long period of incarceration before a hearing in a court of law on such a fundamental issue as the liberty of the citizen.

Sixty-day imposition

Questions are also being asked concerning the rationale for the 60-day imposition. What is it that is required by the authorities to be accomplished that would explain the necessity for that kind of stricture? Are statistics or other material available?

Has any consideration been given, it is asked, to the facilities relating to representation that would be required to be made available to the defendant - including at the appeal process - open to the prosecution in these circumstances?

Space in prisons

And what of the availability of space in the prison and correctional facilities which would, of necessity, be further challenged? And would entitlements relating to false imprisonment and malicious prosecution be trumped by the use of the section 50 provision?

It may be that the legal and constitutional purity of the proposals can be established; there are clear policy issues, however, that call for further and better particulars to be given to the public.

The preamble to the bill therefore includes the following:

"AND WHEREAS section 50 of the Constitution provides that an Act of Parliament to which that section applies (namely, one the bill for which has been passed by both Houses and at the final vote thereon in each House has been supported by the votes of not less than two-thirds of all members of that House) shall not be void to the extent of any inconsistency with the provisions of section 13 to 26 (inclusive) of the Constitution but shall, notwithstanding any inconsistency, prevail over those provisions."