Lawyers for an accused gunman are claiming that the 2019 amendment to the Bail Act is “unconstitutional” and infringes on “six” of their client’s rights. Furthermore, the legal team wants the court to award more than quarter million dollars to the accused in the matter.
Lamar Antonio Jones, from Rock Avenue, Wildey, St Michael who has been on remand for the past 17 months in connection with matters under the Firearms Act is seeking through his lead attorney Larry Smith Q.C., his release on bail along with $254 000 in compensation.
According to section 5A (1) )d) of the amendment Act Cap 122A, a person charged with murder, treason, high treason or an offence under the Firearms Act, Cap. 179, which is punishable with imprisonment for 10 years or more shall not be granted bail unless a period of 24 months has expired after that person was charged. It further states that bail may be granted by the High Court in special circumstances.
Appearing before Madam Justice Shona Griffith today during a virtual sitting after filing a constitutional motion, Smith who appeared with attorneys Jamar Bourne, Jamila Smith and Akeem Rowe said the amendment breached Jones’ rights under section 11 (a) and section 18 (1) of the Constitution.
The Queen’s Counsel revealed that his client had approached the High Court on numerous occasions for bail but was told that he needed to file a “supplemental affidavit” dealing with and detailing the special circumstances of his case pursuant to the Act. However he said the prosecution had only served partial disclosure to the defence.
Today the attorney urged Justice Griffith to release his client on bail pursuant to section 13 (3) (b) of the Constitution.
“The amendment to the Bail Act is unconstitutional,” Smith declared.
“The proper procedure for the alteration of the Constitution was not followed . . .
“If the Parliament of Barbados wants this law to be a valid law…what they ought to have done and what they must now do. . . is go and amend the Constitution and insert section 5 (a). . . somewhere in the Constitution itself and then re-enact the amendment to the Bail Act.”
Smith argued while Parliament was “omnipotent” within the legal system, the Judiciary under the doctrine of Separation of Powers was there to “stand in the gap” as a check and balance against untoward actions of Parliament.
He added, “In essence what Parliament has done by the amendment is to curtail the judiciary and its role with this amendment. So that it means that Parliament now runs amok, unchecked by this amendment, save and except for the few exceptions.
“When you shift the burden you don’t only impinge his right to a fair trial within a reasonable time, you also impinge his right to a presumption of innocence.”
Smith stated that his client had no prior convictions and was before the court for the first time on charges, with “no trial and no bail”.
“What is the justification for removing from the docket of the judiciary its capacity to consider his individual circumstances in determining whether he is a fit candidate for bail? . . . We don’t know because we have no evidence but all we will submit is that to do so renders it unconstitutional.”
Smith argued that the amendment breached his client’s rights which was denied by the prosecution.
“The right to liberty, the right to security of the person, the right to protection of the law, the right to personal liberty or constitutional release, the right to fair trial within a reasonable time and the presumption of innocence,” he argued.
He also made a case for compensation for the 17 months that Jones had been at Dodds. In the assessment for compensation which the Queen’s Counsel submitted, was the sum of $7 083.33 for pecuniary loss and non pecuniary loss of $247 000 in addition to legal fees.
Smith suggested that the case is also “ripe” for vindicatory award because “the high-handed approach” of the Parliament of Barbados . . . was “capricious and arbitrary”.
“If a Parliament acts in a capricious and arbitrary way we can see no better circumstances for a vindicatory award. It is appropriate.”
However Senior Crown Counsel Jared Richards, who represented the Attorney General in the matter argued that the amendment “was a proper alteration of the Constitution”.
The alteration was proper and necessary in the circumstances for section 5 (a),” he added.
With regard to the separation of powers he argued “There is no infringement on the jurisdiction of the judiciary by the Parliament or the executive in this situation.”
The Senior Crown Counsel further submitted that “there is no breach and if there is no breach, there is no relief to be had.”
But if the court determined that there was indeed a breach then the “first limb of relief” the Crown believes appropriate is a declaration stating that this is unconstitutional.
However the court, he said, would have to take it a step further than just a declaration. In these circumstance, he added, given that there will be still existing a piece of legislation to which judges may find themselves bonded, the court ought to “strike down” that piece of legislation.
Given those submissions Richards said there was no need to compensate the claimant.
“Compensation is not an appropriate remedy for a matter like this. The issue of bail is one that is discretionary,” he added before Justice Griffith adjourned the matter for a decision on May 10.