Scott-Mottley rebuffs minister’s stance on judge’s discretionary powers

OPPOSITION SPOKESPERSON on Justice Donna Scott-Mottley soundly rejected a recommendation last week that the discretionary powers enjoyed by judges to grant bail to a person after conviction should be taken away.

Scott-Mottley’s discharge came during the sitting of the Joint Select Committee reviewing The Bail Act 2022.

Earlier, Minister of Legal and Constitutional Affairs Marlene Malahoo Forte, who chairs the committee, had made a case to have the change enacted, pointing out that in light of the new Firearms (Prohibition, Restriction, and Regulation) Act, as well as the upsurge in lottery scamming and other fraudulent crimes, this was a necessary.

“Those matters on the prohibition side of the new firearms law and the matters relating to the gangs, and then the matters where we have special security operations on the ground, in the ZOSO (zones of special operations) in respect of identity,” Malahoo Forte said, posing the issues. “But a question had been raised about the treatment of that offence which we are considering.

“… The other has to do with the lotto scamming, the fraudulent transaction law. The data we have is that these categories of offending are particularly egregious in the society. If you are convicted for those offences, as a matter of policy, we are saying that it’s really only in the most exceptional circumstances that a grant of bail should come because after that, you are to face your sentence,” Malahoo Forte continued.

Scott-Mottley, who is an attorney-at-law, was not convinced.

“I want to make it clear that I don’t support this decision. I am of the view that the judge should be given the discretion that if satisfied that exceptional circumstance so warrant, he can grant bail after conviction and impose such conditions as he considers appropriate,” Scott-Mottley retorted.

“We cannot here, as legislators, decide what could arise that would make a judge feel that only in those circumstances bail should be granted, and I cannot understand why the policy would be to remove that discretion from the judiciary. I want it placed on record that I do not support it,” she emphasised.

Malahoo Forte then pressed her on this point.

“Your position makes no room for the illicit gunrunning and stockpiling and all of that,” the minister said.

“Absolutely!” was the response from the opposition senator, “because there is no judge who having regard, especially, to the policy of the Government, who would not take that into account. But I am saying, Madam Chair, that if there are exceptional circumstances which arise subsequent to that conviction, or indeed are inherent in the conviction, why should the judge be allowed to consider that regardless of the offence for which the person is convicted?

“I don’t see the basis and the logic. It suggests to me that there is no confidence in a judge’s ability to discern the circumstances which are appropriate in granting bail after a conviction,” she added.

Malahoo Forte countered that she would not consider it a lack of confidence, but would rather see it as a clear indication of the policy intent behind the provision.

Director of legal reform in the Law Reform Department of the Ministry of Justice, Nadine Wilkins, then intervened to point out that there already exists quite an extensive body of law surrounding the grant of bail after conviction by the Court of Appeal.

Meanwhile, Malahoo Forte expressed disappointment with the failure of the Court Administration Division to lend its support to the review of the Bail Act.

“I really am disappointed. When you don’t consult, you hear you are a criticiser, and when you try to consult because the law provides that it can be done and then you get an unhelpful response; it’s a little disappointing,” Malahoo Forte lamented.

christopher.serju@gleanerjm.com