A High Court judge has ruled as “unconstitutional”, a section of the Bail Act that forces the courts to remand persons charged with murder or serious firearm offences for 24 months before they can qualify for bail.
And the accused who challenged the legality in a constitutional move is seeking over a quarter of a million dollars in compensation.
Madame Justice Shona Griffith handed down the ruling today in the case of Lamar Antonio Jones against the Attorney General, which challenged the constitutionality of Section 5(a) of the Bail (Amendment) Act 2019.
Jones, a resident of Rock Avenue, Wildey, St Michael, who was released on bail last Friday with conditions, had been on remand at Dodds for 17 months in connection with matters under the Firearms Act. He had approached the High Court claiming that 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, Jamila Smith and Akeem Rowe, 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 Queen’s Counsel said his client’s right to liberty, the right to security of the person, 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 had all been breached. The court agreed.
“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,” Justice Griffith said as she handed a partial ruling in the case today.
“…. 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.”
However, the judge has not made an order on whether the offending section of the Act should be struck or modified.
“At the end of the day, my predisposition of having to follow the law is going to take me to the place of saying that Section 5(a) has to be struck in its entirety. My dispensation really is that the court has to follow the law and that any attempts to save or sever Section 5(a) would take that court into the realm of legislating and outside of the proper ambit . . . of its judicial power,” Griffiths explained as she delivered her ruling on the case in which Senior Crown Counsel Jared Richards is representing the Attorney General.
That aspect of the case is expected to be dealt with on Thursday.
With regard to the Separation of Powers argued by Jones’ lawyers, the judge found that had not been breached.
However, Justice Griffith is expected to hand down her ruling in July in connection with the compensation that Jones’ legal team is seeking.
For compensation, Smith submitted $7 083.33 for pecuniary loss and non-pecuniary loss of $247 000, in addition to legal fees as well as a vindicatory award. Pecuniary losses relate to those like lost wages which carry a monetary value while non-pecuniary refers to damages like pain and suffering which aren’t measured in the same way.
Today Smith and his team welcomed the judge’s partial ruling.
He told Barbados TODAY: “We are delighted by that. We are grateful for the ruling of the court and we are also grateful for the timeliness of the court’s ruling. This matter was heard and determined within a five-week period. It is a constitutional matter regarding a claim for breaches of certain fundamental rights and freedoms of the Constitution. These are matters that should be heard quickly and determined quickly and that is what Madam Justice Griffith did in this matter.
“I hope that the approach seen in this case becomes the norm for these kinds of matters particularly those that affect breaches of fundamental rights and freedoms,” the Q.C. he said as he lauded his team.
However Smith made it clear that it was “not lost” on his side what the legislature was trying to achieve with the now “unconstitutional” amendment to the Bail Act.
“We live in Barbados and we appreciate that it was an attempt to address an upsurge in firearm offences, murders committed with firearms, and from that point of view we appreciate what the legislature was trying to do.
“However, Barbados is a nation of laws and a nation which adheres to the rule of law and that principle of the rule of law is applicable to the legislature as well. It is for the courts, the judiciary, to determine if and when and upon an appropriate application being made any law is unconstitutional or runs contrary to the rule of law and from that point of view it means that in this case the system worked,” Smith added.