Constitutional Discussions 2: The Right to Bail. The Report 
of the Constitutional and Electoral Reform Commission has been published and in the public domain since 25 August 2006. It can be read and downloaded to your computer from the government website. Its contents have been discussed on innumerable radio talk shows and in the press. Public meetings have been held throughout the island to give those interested an opportunity to attend and present their views. These meetings were not very well attended. Constitutions are a dry subject and of interest only to a few persons. Many more persons listened to the discussions as they were broadcast live on radio. The recommendations should be well known to you by now. So, I am not going to go through them all one by one.
Members of the House of Assembly met in caucus at Limestone Bay Café. Present were the elected members, the nominated members, and the ex-officio members. I had the honour of being asked by the Chief Minister to lead the members in their discussions. They debated the recommendations. I took notes of what they had to say. At the end of the meetings, I circulated them with a list of their views as they diverged from the views of the Commission. I have a copy of those notes. I am going to use them to discuss with you, my readers, the views of the members of the House of Assembly. At no time have I been asked to keep these notes private. In any event, the views they record have been expressed from time to time in public by members of the House of Assembly. This was particularly true at the public meetings called by the Chief Minister. Various persons criticised the variations introduced by the Members of the Assembly. Some of the suggested variations caused quite heated debates. Let us now begin to look at some of them.
The first divergence from the 
recommendations of the Commission was at paragraph 13 of the Report. The Constitution provides at section 3(3) that any person who is arrested on suspicion of having committed or being about to commit a crime, and who is not released, shall be brought “without delay” before a court. It is not that you are entitled to bail after 48 hours. It is only that the police cannot keep you locked up indefinitely without bail. They must bring you before a Magistrate after 48 hours. There may be good reasons why you should not be released on bail. You may run away. You may go back to commit an offence immediately you are released. You may be a homicidal maniac who is a danger to the community if released. Let the Magistrate decide. Experience all over the world has shown that it is safer to let a judicial officer decide who should be bailed and who should not.
The Commission recommended that the phrase “without delay” should be replaced by “within 48 hours”. It is no use having a right to bail, if you can be detained until some police officer decides that it is convenient to take you to the Magistrate to apply for bail. The members of the Assembly disagreed, and decided that they would prefer to leave it as it is. They were not convinced by the argument of the Commission that the phrase “without delay” was ambiguous. They were not convinced that it has caused much distress in the past. Nor were they impressed by the argument that the more advanced Constitutions of the
Can somebody explain to me why lower human rights standards should apply to us?
If I am arrested for, let us say, being a disloyal blogger, at 9 in the morning on a weekday, and we have a 48 hour rule, the police can punish me by letting me rot in my cell for two days before they take me across to see the magistrate. Given the combative, immature, us-versus-them attitude the police administration sometimes seem to have toward the people, I believe your suggested solution would only enable them in their arrogance. I much prefer the UK provision.
ReplyDeleteThe problem with our present system is that the period of time the police can hold you after arrest is open ended. There is no limit to how long the police can hold you under arrest before they take you before the Magistrate. They can and frequently do hold you for a week or more before they even allow your family to visit you, far less take you before the Magistrate.
ReplyDeleteAndy Otto likes to remind anyone who will listen that if Inspector Keithley Benjamin had not been so intent on taking him to the abandoned Sandy Hill Police Station and beating him every day for a week until he confessed, the police might have conducted a proper investigation and discovered who the other two young men were who were involved in the killing of the two women for which he alone was tried and convicted, on the basis of the same confession.
The Commission's recommendation that it should be illegal for the police to hold you beyond 48 hours is a major improvement. It makes it less likely that such abuses will occur again in future.
IDM
While I agree that 48 hours is better than whatever time the police feel like taking, isn't "not later than the first sitting after charge” even better?
ReplyDeleteYes, I happen to agree that "Not later than the first sitting after charge" is better than within 48 hours.
ReplyDeleteThe Commission came to its recommendations by consensus. The members considered the various representations made by different persons. No one suggested the UK standard. Most persons were in favour of the Antiguan standard of 48 hours. So, the Commission went with that.
IDM
Now that the Bristish and French are facing islamic terrorists, they too are seeking to increase the time law enforcement can hold you before you are charge.
ReplyDeleteIn a matter requiring a long and complex investigation to get sufficient evidence to charge someone with a crime, what can be done to keep the suspect from disappearing -- especially someone from another country?
ReplyDelete