State challenges High Court decision on constitutionality of country’s Bail Act

The Office of the Attorney General is appealing a High Court ruling that deemed part of the Bail Act unconstitutional.

In addition to challenging that decision regarding the section of the Act that forces the courts to remand persons charged with murder or serious firearm offences for 24 months before they can qualify for bail, the State is seeking to submit an application to the Court of Appeal “to adduce fresh evidence” in the matter of an application by Lamar Antonio Jones who claims his fundamental rights and freedoms have been breached.

In May last year, Madam Justice Shona Griffith handed down a partial ruling in the case of Jones vs the Attorney General, which challenged the constitutionality of Section 5(a) of the Bail (Amendment) Act 2019.

The Rock Avenue, Wildey, St Michael resident had been on remand at Dodds for 17 months in connection with matters under the Firearms Act. He had approached the High Court claiming the amendment to the Bail Act was unconstitutional and infringed on six of his rights as an accused person.

According to the section of the legislation, a person charged with murder, treason, high treason or an offence under the Firearms Act, Cap. 179, which is punishable with imprisonment for ten years or more, shall not be granted bail unless a period of 24 months has expired after that person was charged.

It further states, however, that bail may be granted by the High Court in special circumstances.

Jones’ attorneys Larry Smith Q.C., Jamar Bourne and Jamila Smith, in a constitutional motion, said their client had approached the High Court on numerous occasions for bail without success, resulting in a breach of his rights under Section 11 (a) and 18 (1) of the Constitution.

“The court does find that to the extent that a person’s right to apply for bail is restricted to a period of 24 months unless there is a determination by a judge of the Supreme Court that the case against the (person) is not a strong one or is weak, that restriction on the right to apply for bail in relation to persons charged with a firearm offence is unconstitutional.

“…. It is not proportionate to a legitimate end to the maintenance of law and order and the court is unable to find any rational connection between the restrictions and the measure that is imposed…. The court finds that the restrictions are in fact disproportionate and so those restrictions are unconstitutional and void,” Justice Griffith ruled then.

Queen’s Counsel Leslie Haynes and Sir Elliot Mottley as well as attorneys Ann Marie Coombs and Kashawn Wood are representing the State in the appeal.

Appearing before Chief Justice Sir Patterson Cheltenham and Justices of Appeal Jefferson Cumberbatch and Margaret Reifer on Tuesday, Haynes explained that throughout the judgment, the judge complained that there was no affidavit filed on behalf of the Crown to allow her to balance the interest of the constitutional law issue before her to determine proportionality.

“As a result of this, the trial judge held that since there was no affidavit to determine with proportionality, to assist her with proportionality, the section of the Bail Act was unconstitutional,” the Queen’s Counsel told the three-member panel, adding that the appellants would be applying for “an application to be made to the Court of Appeal to adduce fresh evidence”.

“We are in the process of starting the affidavit which we would like to be admitted into evidence. Of course, that depends on the statistics from the Commissioner’s office. The first application that we hope to make is an application for fresh evidence. The Commissioner of Police is now involved. . . through the direction of the Attorney General’s office,” Haynes said.

Queen’s Counsel Smith indicated to the court that his team planned to “oppose the application”.

He contended that such an application should have been made in June last year when the appellants served their notice of appeal.

The matter will continue on February 15.