Lawmakers torn on use of ‘defendant’ tag in pre-charge bail
Published:Thursday | December 15, 2022 | 1:25 AMEdmond Campbell/Senior Parliamentary Reporter
A government lawmaker and an opposition counterpart on Wednesday insisted that the word ‘defendant’ should not be used to describe a person who has not been charged with an offence.
As the joint select committee considering the new Bail Act 2022 met, government senator Natalie Campbell Rodriques was strident in arguing that the use of the word would be prejudicial to the individuals who have not been charged.
“I want the records to reflect I am completely against this. I am not convinced by any of the arguments made. My conscience could not allow me to support that. I think it is prejudicial, and I do not think that it matches the law in any other Commonwealth jurisdiction,” Campbell Rodriques said.
Another committee member, Fitz Jackson, contended that someone who has not been charged but is suspected of committing an offence should not be placed in the same category as another person who has been charged based on evidence.
Judith Grant, chief parliamentary counsel (CPC), who provides technical advice to the committee, said that the proposed law treats with the granting of bail at three different stages of criminal proceedings: pre-charge bail, bail after charge, and bail after conviction.
Providing justification for using ‘defendant’ for a person who is not yet charged with an offence, Grant said there is need for a general term to cover the three categories, and ‘defendant’ was the word chosen.
“Some of the presenters ascribed a narrow meaning to the term defendant to mean a person who is charged, but in its ordinary meaning, defendant is capable of a much wider meaning. Ordinarily, it would mean a person against whom action is taken whether in civil or criminal proceedings,” she added.
Justice Minister Delroy Chuck, who sits on the committee, wanted to know if the use of the word ‘suspect’, instead of defendant, would affect the legislation in any way.
But Grant pointed out that ‘suspect’ would only cover the pre-charge person and not the convicted person or the person who has been arrested and charged.
Committee Chair Marlene Malahoo Forte said that the “notion that you can properly legally and constitutionally entangle with the criminal justice system without some form of prejudice is a false notion. It is how you balance it.
“I wonder whether it is because many do not understand that it’s not any individual is the defendant. It is a person who the Constitution says can be arrested or detained because there is reasonable cause to suspect that the person has committed an offence and that person is to be taken before the legal authority. I think that important point is missed,” she argued.
But Campbell Rodriques countered: “I understood it very clearly, and I am still asking that we delay further deliberations of the matter so that the CPC can provide the committee with what they say they found in other jurisdictions where persons who were not charged with an offence are called defendants.”
She argued that lawmakers have to think about social policy within the law and the message that is being sent.
Jackson again sided with Campbell Rodriques, reminding his colleague legislators that at the end of the deliberations when the bill is passed, the records will reflect the position of the lawmakers on this issue. “We get the technical advice, but at the end of the day, it is our call.”
In his comments, Senator Charles Sinclair indicated that the points raised by Campbell Rodriques were “a matter of semantics”, noting that the committee had wasted a lot of time on this discussion.
Committee member Peter Bunting chided Sinclair for the “dismissive” way in which he addressed the concerns highlighted by his government colleague.
Another committee member, Senator Donna Scott Mottley, accused the committee chairperson of lecturing other members whose views might not concur with hers.
According to Scott Mottley, if persons have a different view, they should be allowed to air it so that at the appropriate time, the committee may find consensus.
Malahoo Forte said it was not her intention to shut down comments or views being made by committee members.
“Not everything said is accurate. I believe that there is a duty to point out the inaccuracies. I do expect and welcome the diversity of views,” she said.