Lawmen want to revisit outlawed legislation to help fight crime

Four years after the Supreme Court struck down amendments to the Bail Act, Jamaica is again toying with the idea of arresting people even without sufficient evidence, as part of a wider move to stem the rising tide of violent crimes.

"We also want to, hopefully, get an amendment to the Bail Act, so that even persons who are not charged for criminal offences can be arrested and bailed prior to charge," Commissioner of Police Dr Carl Williams said on Monday.

The proposed amendment is now before the Legal Reform Unit of the Ministry of Justice, and according to the commissioner, it is the subject of active consideration.

"Even some defence lawyers have come on board and engaged in the discussions," Williams said.

However, attorney-at-law Hugh Wildman, said that it is a waste of time contemplating the changes, as enunciated by Williams, to the Bail Act, as it does not fit with the Constitution.

"It cannot be done," Wildman, a veteran attorney said while stating, "it is an ill-conceived position by the commissioner. They don't understand the law and the Constitution of Jamaica. The commissioner is being ill-advised.

"You cannot effect an arrest on anyone under the Constitution of Jamaica unless you have a warrant, which would be that the person is wanted for a crime, or you have reasonable and probable cause that the person has committed an offence. In the absence of that, any form of arrest would be illegal, unconstitutional and the police would be in serious trouble," Wildman told The Gleaner.

Wildman said the commissioner may have arrived at the suggestion because of a lack of understanding of some basic issues.

"Bail has nothing to do with arrest, that is where the commissioner seems to get it wrong. Bail is after you have been properly arrested and charged then you are entitled to bail. You can't merge the two things," he said.

Mirroring US policy

Contacted yesterday to provide clarity on the amendments being sought, Williams said he was at a conference and thus unable to speak. He referred The Gleaner to Berthan O'Connor, the Jamaica Constabulary Force's legal counsel, who, too, declined to address the matter saying he had a meeting.

However, checks by The Gleaner revealed that the amendments being sought are being patterned off the United Kingdom's Police and Criminal Evidence Act (PACE).

Under PACE, the custody officer at each police station, where a person is detained after his arrest, shall determine whether he has before him, sufficient evidence to charge that person with the offence for which he was arrested and may detain him at the police station, for such period as is necessary.

If the custody officer determines that he does not have such evidence before him, the person arrested shall be released on bail, unless the custody officer has reasonable grounds for believing that his detention, without being charged, is necessary to secure or preserve evidence relating to an offence for which he is under arrest, or to obtain such evidence by questioning him.

The person can be held for 96 hours from the time of his arrest.

In 2011, the Supreme Court struck down amendments made to the Bail Act which were made by Parliament the year before.

Among other things, the amendments provided for the detention of a suspect on gun and murder offences for 60 days without bail. Additionally, accused were being required to satisfy the court as to why they should be released on bail, a provision which runs counter to the Constitution. They could be held for up to 72 hours before being charged, instead of the 24-hour provided for by the Constitution.

Chapter III of the Constitution makes provision for a person who is arrested and detained to be informed of the reasons as soon as practicable and for that person to be taken before the court without delay. It is also stipulated that the suspect shall be released if not tried within a reasonable time.