Law professors at UWI warn that the Bail Act may be illegal.

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A Joint Select Committee of the Parliament is now looking into the Bail Act and has received complaints from another party.

This time, the University of the West Indies, Mona, Faculty of Law has issued a warning that several Bill sections may be unlawful. In recent presentations to the committee, the lobbying organization Jamaicans for Justice and the Norman Manley Law School also issued similar cautions.

The law faculty concentrated on the Second Schedule to the Act, which it pointed out is separated into two sections, in its written contribution before the committee on December 8. While section two ostensibly deals with offenses for which a bail application must not be submitted after conviction, part one deals with offenses for which bail may only be granted by a court.

The law faculty claimed that because the presumption of innocence is nullified by a conviction, “it is settled law that the factors for the grant of bail awaiting an appeal against conviction and punishment are distinct from the considerations applicable to the grant of bail pending trial.”

As a result, a greater standard must be fulfilled by a bail application, it continued.

The law faculty further emphasized that it is acknowledged that section 14(4) of the Charter of Rights’ express constitutional guarantee for bail is only applicable to bail pending trial.

The statement said, “Statutes impacting common law rights ought to do so directly or by necessary inference since the right to bail awaiting appeal is a common law right.”

The law faculty continued to make the point that the common law concept of legality, which calls for unambiguous statutory language to effect common law fundamental rights, applies to statutes that have an impact on fundamental rights.

It stated: “It can scarcely be maintained that the right to bail awaiting appeal is not a fundamental common law right, despite the requirement for additional considerations. The Bail Bill as it is now written aims to obliterate this common law privilege without express words. Any suggestion that the right to bail awaiting appeal may be taken away in some circumstances must be supported by a broad interpretation of clause 13 and the heading to Part II of the Second Schedule.

The law faculty continued, “This is insufficient and creates an awkward situation where the scheduled offenses (which are very serious offenses) may be subject to the common law threshold, which is lower than those set out in clause 13, while other offenses will be subject to the higher clause 13 thresholds.”

It stated that “there is still a substantial likelihood that such an idea will be illegal, even if specific words are used to eliminate the right to bail awaiting appeal for certain acts.”

A strong independent court is a fundamental component of a democratic society, according to the UWI law department. It said that it has long been acknowledged that bail determinations are fundamentally judicial in nature and that eliminating discretion in this area—even when accomplished by a constitutional amendment—runs counter to this fundamental constitutional principle.

It was emphasized that these concepts had just recently been upheld by the Privy Council in Charles v. Attorney General of Trinidad and Tobago, where provisions that eliminated the right to bail following an accusation of murder or other serious offenses were deemed unconstitutional due to the removal of the court’s discretion.

It stated that whereas Charles dealt with the issue of bail before to conviction, the guiding principles upon which the Board bases its judgments also apply to bail-related issues after conviction. In addition, it noted that the Ugandan Constitutional Court had held in Foundation for Human Rights Initiatives v. Attorney General that clauses revoking bail pending for convictions carrying the death penalty or terms of more than five years in prison were unconstitutional.