Christopher Serju, Gleaner Writer
Attorney-at-law Terrence Williams, who heads the Independent Commission of Investigations (INDECOM), has called for a clarification on the seemingly contradictory aspects of two pieces of legislation relating to bail.
Williams is arguing that the Bail Act is contradicted by Section 15 of the Constabulary Force Act which requires that the arrested person must be taken "forthwith before a justice who shall enquire into the circumstances of the alleged offence, and either commit the offender to the nearest jail, or to take bail by recognisance".
"As the word 'forthwith' means 'immediately' or 'without delay' there should hardly be a prisoner in custody without the detention being approved by a JP (justice of the peace)," Williams said as he addressed Saturday's annual awards dinner of the St Andrew Justices of the Peace and Lay Magistrates Association.
"Strangely, the Bail Act, a later statute, provides that a JP must consider bail for every detainee within 24 hours. Forthwith now means 24 hours?" he asked the audience present for the dinner at the Terra Nova All-Suite Hotel in St Andrew.
This provision, according to the veteran attorney-at-law, has had the effect of diluting the oversight intended by the Constabulary Force Act, in the process providing a loophole for arresting officers.
"We know that there are persons who are in custody for more than 24 hours and no JP or magistrate has permitted that … the 24-hour rule, from our reports, has been breached. But I am saying, even so, the law is also providing for an immediate oversight, the 'forthwith', and certainly that is being honoured in the breach," he told The Gleaner afterwards.
He explained further: "What is perhaps happening now is that this anomaly might be confusing because most officers might be saying that the law is 24 hours when, if you read the Constabulary Force Act, it says forthwith; so I think there is a need for that to be sorted out."
The need for clarification has taken on greater urgency in light of the ruling by the Constitutional Court on July 30 that, in addition to investigating allegations of impropriety against policemen and women, INDECOM and its investigators also have the power to arrest, charge and prosecute members of the Jamaica Constabulary Force.
"Why it is so important to INDECOM now is that when I am advising my officers on the powers of arrest, my investigators, I tell them to get a warrant from a JP. If there are circumstances where you can't get a warrant and you arrest, you must immediately take the person to the JP because that is what the law says and I would like to see that issue clarified because it's an important issue of persons' liberty."