Bail Act ‘introduces constitutional change, would repeal current law’ – BBA

By Emmanuel Joseph

The government raced a new Bail Act through Parliament in two days on Wednesday even as the legal community in an emergency meeting added to a steady drumbeat of criticism of the controversial bail reform law and urged that the legislation be paused to allow for wider consultation.

The Bail Act sailed through the Senate on a 15-1 vote with two abstentions.

Despite supporting efforts to tackle the surge in murders that has claimed 26 lives this year, Barbados Bar Association president Kaye Williams urged the Senate to refer the Bail Bill to a joint parliamentary select committee owing to its constitutional implications.

The legislation, introduced in Parliament on Tuesday by Attorney General Dale Marshall as an “urgent” measure “in the interest of justice”, was swiftly approved by the House of Assembly late that night and brought to the Senate on Wednesday where it was passed.

The call followed an emergency meeting of the Bar Association, after which Williams acknowledged to reporters that the Bill aims to address “the cancer of our society”—murders and firearm offences.

Williams said: “We want to make it very clear, that it is the position of the Barbados Bar Association that it agrees with government that in respect of firearm, murder, and other serious offences, that urgent measures have to be taken in the interest of justice.” But she expressed concern that the bill “not only introduces constitutional amendments, but is an entire repeal of the existing Bail Act“.

“Every measure must be taken to maintain law and order in Barbados,” the Bar leader said. But she warned: “If we are going to make amendments to the framework of the Bail Act, we must look at all the other structures that are so important to the criminal justice system, and we must do this in a comprehensive manner.”

The BBA president revealed that the legal fraternity was not consulted on the proposed legislation, which was posted on the Parliament website just two working days before being tabled.

Senior counsel Kristin Turton warned that the bill appears to threaten citizens’ fundamental rights and freedoms. “Every person is entitled to freedom. The exception to that is proof beyond a reasonable doubt that they have committed an offence. At the stage when someone is charged, that hasn’t happened yet,” Turton explained.

She highlighted a provision requiring accused persons to prove they should be released on bail, calling it “an absolute about-face” and “completely contrary to every legal principle that has governed this area of law”.

Turton continued: “One of the primary concerns as well is what you are required to prove outside of innocence. Those line items are incredibly difficult to prove because they are in the negative.  That person who is accused will have to come to show to the court, through evidence, that their release, would not cause concern to the public. I don’t know how a person can prove that. Similarly, I don’t know how someone could prove that the release would cause concern to the public.”

Turton advised that if the government has to enact the proposed bail law, it should be revised.

“So we are hoping to have more consultation and discussion on it so that either, we not take the step of enacting this document, or, if we do, we look at amending it more effectively, but also protect each and every citizen of this country.”

Martie Garnes, convenor of the BBA’s criminal law committee, criticised the bill for potentially altering judges’ roles in criminal proceedings. He argued that the current Bail Act of 2001 is sufficient if properly supported by well-resourced police.

Garnes, who provided a detailed analysis of a series of provisions of particular concern to the criminal law committee of the Bar, identified what he saw as a change in the role of the judge in criminal proceedings.

“There is a cardinal principle in law, at least in criminal proceedings, [where] the judge ought to be the referee,” the attorney argued. “The judge is just the umpire. You have England versus France, it’s prosecutor versus defence. Let the two of them be the gladiators in the arena. The judge is just to make sure it’s a clean fight. That’s what it’s supposed to be. But if you look at section 6 and section 9, this encourages the judge now to enter into the arena.”

“It says: ‘Where the prosecution does not oppose the granting of bail, the court has the duty, imposed by sub-section 8, to weigh the personal interest of the defendant against the interest of justice.’ So, in other words, what that is telling you, [is] if the prosecutor does not object, the judge or the magistrate can then jump in and say: ‘Hold on, hold on Mr Prosecutor, you don’t want to object…no problem…in the interest of justice, I sending you [accused] up the road [to prison].'”

Garnes also raised concerns about clauses that appear to limit appeals to the Caribbean Court of Justice, questioning why the jurisdiction of the nation’s final appellate court was being “ousted”.

The government maintains that the bill, modelled on South African law, is necessary to address urgent public safety concerns. As he introduced the bill to the House of Assembly the day before, Attorney General Marshall told lawmakers: “In a society where there is unrest, time runs against all of us. I make no apology for coming into this chamber and asking that we do this bill in all its stages. We are at a critical juncture.”

Marshall acknowledged the possibility of legal challenges but remained defiant: “This attorney general is not afraid of a constitutional challenge,” citing previous victories in COVID-19 and election-related cases.

The bill shifts the burden onto the accused to convince the court that bail should be granted, contrasting with a 2019 amendment that automatically remanded murder and gun crime suspects for up to 24 months, which was deemed unconstitutional by the High Court in 2021.

The government argues that the bill’s provisions balance individual rights with societal needs. emmanueljoseph@barbadostoday.bb