The need to ease overcrowding in our prisons

In May, 2003, Justin John, an Amerindian from Karasabai, was arrested for murder, a charge which does not permit of bail. The Magistrate’s court with jurisdiction to hear the Preliminary Inquiry in respect of a murder charge in Karasabai is seated in Lethem. It convenes a few times per month. The Inquiry took five years, during which time John remained in prison on remand.

Many of the adjournments in the Lethem proceedings were necessitated by the failure of the prison authorities to transport John from the Camp Street prison to Lethem to be present at the hearing. He was eventually committed to stand trial in 2008, but could not secure a jury trial until May, 2010, when, at his trial, the prosecution produced one witness – a police officer – and could not produce any other witnesses. Justice Ramlal promptly directed the jury to return a verdict of Not Guilty.

One man spent seven years on remand on a charge which could not be proved.

The majority of prisoners on remand awaiting trial are kept at the Camp Street facility. The prison is nearly one hundred years old. It is designed to accommodate five hundred inmates. It currently holds thrice that number. There is quite literally standing room only in the prison. A picture of the inmates in their usual surroundings can be found online – just google Camp Street Prison – for those citizens who are interested.

Given that (1) an accused person is innocent until proven guilty, (2) prisoners on remand constitute a great number of the inmates in Camp Street prison, and (3) the overcrowding in our prisons has passed the point of any consideration of constitutional rights against inhumane treatment, it seems that an obvious solution is to increase the ambit of cases in which bail is available before and during trial. In earlier articles, we had referred to the decision of V Persaud, J in the Guyana High Court that the principal purpose of bail is to ensure the attendance of the accused at his trial, and that remand should not be used as a tool to punish an accused person before he has been convicted.

Given the prevailing circumstances in Guyana, it would seem that common sense dictates a liberal approach to bail. Instead, however, Parliament and the executive appear to have taken the opposite approach, and have over recent years moved to expand rather than reduce the number of offences in which bail is not available to an accused person pending his trial.

These include offences charged under the kidnapping legislation and trafficking of narcotics (15 grammes in respect of marijuana and 1 gramme in respect of cocaine). Beside this formal policy by Parliament, there has also been an informal policy implemented in the justice system that persons charged on offences relating to arms and ammunition should not be granted bail.

In England, the Bail Act contemplates that bail should be granted in respect of offences punishable by imprisonment unless the court is satisfied that there are substantial grounds for believing that the defendant would, if released, abscond, commit further offences while on bail, or interfere with witnesses. Otherwise, he should be allowed bail. In respect of offences punishable by fines, the British legislation mandates bail unless the accused previously attempted to abscond in criminal proceedings and, because of that previous attempt, the court believes the accused will try to abscond in the present proceedings.

The Bar Association recommends in Guyana that legislation should be implemented mandating bail in much the same manner as exists in England. The state will be saved the cost of keeping a prisoner incarcerated, and the overcrowding in the prisons will see some relief. The English legislation does not provide for automatic bail. It simply gives the court a wider discretion to assess the accused on an individual basis, with greater flexibility to permit greater justice.
In a later article, we will consider the difficulties and injustices presented by the mandatory sentence of death in the event that a person charged with murder is convicted.

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