THE PROBLEMS plaguing the prison system are hardly new. But a recent proposal made by former Chief Justice Michael de la Bastide offers the State a fresh solution to one defect which the system suffers from. In an interview with Newsday published last Thursday, the former Chief Justice put forward a new approach to cases involving persons left waiting in jail for periods longer than the sentence they face. He suggested these persons be granted “own bail”, or bail which would not require security.
The prisoner would pay a deposit to be held by the State. Should the prisoner abscond, the State would partly be to blame for having not tried the matter earlier.
De la Bastide’s proposal came in the context of another one put forward by Roman Catholic Archbishop Joseph Harris. The Archbishop has called for mercy: for prisoners to be pardoned. Yet, as the former Chief Justice rightly noted, such a course of action would have adverse implications for victims (if there are any). In addition to the trauma, victims would no longer be entitled to claim certain forms of compensation.
“Freed is one thing, pardoned is another,” de la Bastide noted.
The former Chief Justice also said the Director of Public Prosecutions Roger Gaspard SC does have a power to take over ongoing matters and discontinue them.
But, de la Bastide reasoned, this would suffer from the same defects of a pardon, from the perspective of the victim. We also think this would overburden the already swamped Office of the DPP.
The possible scope of the own bail proposal is not yet clear. Still, in theory, it is a welcomed one.
It addresses the obvious injustice of persons being kept in prison for excessive periods, while keeping an eye on the interests of not only the victim, but also of justice.
Own bail further removes the dilemma posed by pardon to the various policies that underpin the criminal law. It upholds the law’s deterrent function, and is not in conflict with the need for justice.
Additionally, the path to implementation may be clear. Some lawyers are of the view this proposal, because it would give rather than take rights, only needs a simple majority bill. At the same time, the proposal will only work if prisoners have resources to put up bail. And the deeper problem remains the slow pace of justice as a whole, not just in relation to the class of cases discussed by de la Bastide.
The many problems in justice system have been reported on for decades. They have featured in High Court rulings and were encapsulated in a damning report by the Inspector of Prisons Daniel Khan, a report which was submitted to the last administration.
We have long been told that conditions in jails are appalling, cells are overcrowded and the hearing of cases is so slow as to be unconstitutional.
While some measures have been proposed over the years – such as the use of electronic tagging – many have not been implemented.
Notwithstanding “grabbers and jammers”, the perception is that the pace of reform has not been fast enough.
Attorney General Faris Al Rawi must be credited, though, for re-igniting the long-standing conversation about the justice system. His decision to hold public consultations has generated much debate on a range of proposals. The multi-stakeholder committee which the Ministry of the Attorney General has assembled to judiciously consider all of the issues now being raised must give due weight to all sides of the matters being raised in the public domain. For the State to do otherwise, would be to reduce the last few weeks to nothing but a ceremonious talk shop. That would be an even worse injustice.
Credit. NEWSDAY Editorial
Published: Monday 9th May 2016