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Fred Smith: Jail Or Fine For Violating Bail 'Completely Unconstitutional'

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Attorney Fred Smith QC

By SANCHESKA BROWN

Tribune Staff Reporter

sbrown@tribunemedia.net

GRAND Bahama Human Rights Association President Fred Smith, QC, said it is “completely unconstitutional” to jail or fine someone for failing to abide by their bail conditions and the GBRA is prepared to represent anyone who the courts attempt to “illegally” penalise.

In an interview with The Tribune, Mr Smith said the penalty for a bail violation is to have your bail revoked, not to receive a hefty fine or be jailed.

On Wednesday, National Security Minister Dr Bernard Nottage introduced legislation in the House of Assembly that would make violating bail an offence punishable with up to a $50,000 fine and/or up to five years in prison.

Addressing parliamentarians, Dr Nottage said currently if a person is found to be in violation of his bail conditions, they would only be charged with a minor offence. Once the amendment to the Bail Act is passed, however, a person who is found guilty of violating the terms of their bail will be charged with the crime they committed while on bail as well as face a “very serious penalty”.

“This is completely unconstitutional. When someone violates their bail you cancel it and place that person into custody until trial. That is the essence of bail,” Mr Smith said.

“It is shocking that parliamentarians do not understand this. The person is presumed innocent until convicted, and so how can you convict someone and charge them with an offence which could possibly carry a bigger penalty than the offence they were originally charged with? It is perverse. So if this passes in the House of Assembly, the GBHRA will be keen to act for anyone who is prosecuted for such an offence, to have it stuck down as unconstitutional. What’s more, is that magistrates who do not have security of tenure cannot be punishing people with big fines or more than two years in prison. Only the Supreme Court has the power to deal with serious cases.”

Dr Nottage said one of the conditions violated frequently is reporting to the police station. He said it is not very well controlled “by persons who work in police stations or officers who are in charge of police stations”, and sometimes the matter is a communication problem with the judge.

Dr Nottage said an additional problem when it comes to bail is persons who post multiple bonds for several people and use the same property to sign for a number of persons. He said he would like this practice “stopped very soon”.

He also said persons who are granted bail are often victims of serious crimes themselves. According to Dr Nottage, in 2014, 30 persons were murdered while wearing ankle-monitoring bracelets.

Despite being opposed to bail for serious crimes, Dr Nottage advocated bail for minor offences such as possession of a small amount of marijuana or vagrancy. He said the prison, which currently holds over 1,600, is overcrowded and the government needs to find a way to “stop jailing our young men”.

Comments

Publius 3 years, 11 months ago

“It is shocking that parliamentarians do not understand this

While I dont imagine that Smith is truly shocked, many in the country might indeed be shocked by just how much parliamentarians do not know - even about the very fundamentals of their nation.

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My2cents 3 years, 11 months ago

If the proposed legislation becomes law, how can it be unconstitutional? It's not currently in effect, is it? What an alarmist!

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Publius 3 years, 11 months ago

What do you mean? Do you think that whatever the Parliament passes becomes automatically Constitutional? You realize that is not the case, right? The Constitution is the Supreme Law, not the subordinate law, meaning Parliament is under it, not it under the Parliament. Parliament can absolutely pass an unconstitutional law though it ought not. It would then be struck down by the Courts on challenge, which would ordinarily push Parliament to change the law in order to make it Constitutional.

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My2cents 3 years, 11 months ago

My common sense assumption here is that the proposed legislation is in accordance with the constitution, not contrary to it. If Parliament seeks to make changes in the law, I'm sure they are aware of the constitutional constraints, even if I'm not. Furthermore, the constitution can be amended. At this point it is a proposed legislation that is being debated and can be tweaked, it's absolutely too premature to call it unconstitutional when it's not even law. Fred Smith is an absolute alarmist.

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DonAnthony 3 years, 11 months ago

Apparently you do not understand what happens when you assume! Especially when you assume that our parliamentarians are competent or that our attorney general' s office is as well. They are patently not, and this is not an assumption, it is borne out by history and the facts. Such as violating basic human rights by incarcerating persons for years, as long as 9 years in the case of a Japanese citizen and in the present case three years.

Of course parliament can pass laws that are unconstitutional, to think otherwise is naive and erroneous. Fred Smith has his faults, hyperbole and flamboyance along them, but no one in this county is currently more important to the preservation of our democratic rights than he his. And I am very grateful that he acts as a check against our incompetent govts, FNM and PLP. Our courts too have their faults but have been an invaluable check against unjust govts in this country who lack transparency and crave power beyond their office. Under the last FNM govt they resisted mandatory sentencing etc. So be very careful who you chose to govern you and a little paranoia as regards their competence is very healthy!

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My2cents 3 years, 11 months ago

Don Anthony...this man is calling something that is not even law, but a proposal for debate, unconstitutional. The debating process should include the discussion, and challenging, of whether its contents are constitutional or not. Even so the constitution can still be amended to include provisions that we believe to be unfair or unethical or inconsistent with our own or general interpretation, and they are the ones that are challenged. The law is about interpretation...

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Godson 3 years, 11 months ago

While I agree with you that Mr. Fred Smith has made significant contribution to the protection of human rights, among other issues, he is not as you said "no one in this county is currently more important to the preservation of our democratic rights than he his".

We all have a role and even your support of Mr. Smith is important, but none of us is "more important". Thank you.

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My2cents 3 years, 11 months ago

lkalikl considering your limited mental capacity...I take no offense. Your emotional rants in lieu of substance speaks for itself.

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Chucky 3 years, 11 months ago

clearly they don't understand the constitution

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Chucky 3 years, 11 months ago

legislators enact legislation, when the legislation contravenes the constitution it becomes "unconstitutional". It's just that simple.

No matter how much arrogance a "legislator(s)" possess, they cannot create laws that don't jive with the constitution. If they want to get really serious about taking away any remaining decency in this country these parliamentarians will have to organize and then attack the constitution....

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My2cents 3 years, 11 months ago

A law, that has not been deemed unconstitutional, is still law. Proposed legislation is not law and therefore, cannot be considered unconstitutional, because it doesn't exist. It's that simple!

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John 3 years, 11 months ago

This is a demon law by desperate people. As I indicated earlier, It will snare persons who may be innocent and slap a big, fat unlawful criminal record on them. It will make a worse crime situation because these people will now have a criminal record, cannot work, cannot travel and now being labeled a criminal. These are desperate men appearing to want to be seem to be doing something about crime, when they are essentially digging a bigger.ditch for more innocent citizens to fall in. Punishment must begin when an individual is found guilty. Not a second before. The focus needs to be on speedily trials, and stiffer penalties for those convicted and especially repeat offenders. Is this the same government that came into office and reduced penalties for certain crimes as was established by the former government? Claiming the penalties were too harsh. Look what they doing now! Notice the Fifty Thousand Dollar penalty. A national disgrace!

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Godson 3 years, 11 months ago

John in addition to these wise and instructive comments coming from you: "Punishment must begin when an individual is found guilty. Not a second before. The focus needs to be on speedily trials, and stiffer penalties for those convicted and especially repeat offenders.", there needs to be a underpinning need to rehabilitate persons back into society:

"The law must serve as an end but not be an end in itself."

Bahamian women cannot be expected to born children and the rate we are destroying them..

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Economist 3 years, 11 months ago

The government needs to take a deep breath and count to 10.

At the moment they have lost it, and are totally out of control.

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TalRussell 3 years, 11 months ago

Comrades while I disagree with imposing a 5 year jail sentence it is pure poppycock to suggest the House of Assembly are constitutionally powerless to make things a whole lot tougher for those out on bail who choose to thumb their noses at the conditions in which they were granted bail. There must be serious consequences for bail jumpers who have no respect for our laws but let it apply to the more serious offenses that have the potential to bring harm to others.
Let's us err on the side caution when are already locking-up far too many who pose NO threat to society.
I do not support jail sentences for 95% offenses on the law books, much less to compel judges hand down what some current or future politicians may think should be the minimum jail times under mandatory sentencing.
Bulldoze down Fox Hill Prison to build a modern Detention Center with brand new staffing. Which means you send all the present staff home, for good.

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banker 3 years, 11 months ago

Or ... create 10,000 jobs in a year like they said they would. There is a direct correlation between economic well-being, crime and prison population.

So far, this PLP just wiped out over 2,000 jobs directly and who know how many indirectly. They have the Midas touch in reverse -- everything they touch turns to feces.

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TalRussell 3 years, 11 months ago

Comrades don't pay attention to those who do not preach that education is the key to open the door to Bahamaland's future. Future governments must learn to use that education as a requirement to take our detention and policeman's to a higher level. Until we raise the bar for teacher qualifications we will keep repeating our nation's present day faults.
Without a doubt the worst of the worst government department has be the road traffic department.
How many millions dollars alleged to have gone missing from only just this one department of government but no calls for action by the very same politicians who want force judges send your backsides to jail.
True and fair justice has begin by emptying the overcrowded jail cells of the far too many who never should have been housed at Fox Hill Prison to make room for some well-known to the same damn politicians and government officials.
Comrades fifty-percent of the crimes that are yet to be committed will be earning their criminal degrees up at the Fox Hill Prison.

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Publius 3 years, 11 months ago

And what's the other side of this tragedy of governance? Not one member of the Opposition has or was going to raise a word about Constitutionality or otherwise.

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My2cents 3 years, 11 months ago

How do you know that? Is there no competent lawyer within the opposition? Why would they not point out that "little" detail of constitutionality? If not, they need to be replaced with individuals who have the capacity, knowledge and desire to point out possible infringements. This is one of the reasons why people need to stop voting along party lines.

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Godson 3 years, 11 months ago

I had iterated before that, “constitutionally, there is no punishment involved with the decision and exercise of granting bail because, at first instance, it is not an entitled right for any accused person to get bail. It begins as a discretion to be exercised by the court (The courts' discretion is constitutional). The conditions set down for bail do not become laws on this simple fact - it only applies to that one individual. Not being a law, the accused cannot be punished for the breach – only the penalty that was agreed upon ought to be the consequence of the breach - not any other judicial punishment. “

Further note the effect of the 2016 Amendment to the Bail Act would free the guarantor of any obligation and resettle the responsibility of bail penalty onto the shoulders of the accused. Parliament, by this law to punish the accused for breach of a bail, settles any mishap onto the released person. What then was/is the purpose for the bail application process?

So, should this Amendment become law, all persons who stood bail for accused persons before the courts are no longer held responsible and liable for the actions of the person released on bail.

The rule of law that militates against this action of double jeopardy is that YOU CANNOT PUNISH/PENALIZE TWICE FOR THE SAME ACT: the courts cannot hold the guarantor for bail responsible for the misconduct of the accused, and at the same time, by this Amendment, hold the accused responsible for his own misconduct.

Lastly, as I have also asked, SHOULD THE BAHAMAS CONTINUE TO BE GOVERNED BY THE LESSER OF THE LEAST FROM AMONG US?. The philosopher, Socrates, taught his followers that ‘the greatest punishment is where the lesser of the least governs the people’.

Godson 'Nicodemus' Johnson

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Godson 3 years, 11 months ago

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WETHEPEOPLE 3 years, 11 months ago

being realistic the intorduction of this law serves no purpose. How can someone that has been given bail, be sentenced for five years for not keeping the conditions of his bail. Common sense would suggest if you violate bail the bail is forefitted and you are returned to prison to await your trial. How about making the police officers at the station accountable for relaying the information to the courts on whether the person on bail has not signed in or not, and if they havent apprehend them, considering they probably reside in the same community as the police station they had to sign into. That seems more responsible as opposed to fining someone $50,0000 dollars you know full well they dont have or cant afford to pay. We need to be practical in our thinking, and jailing countless young men for small amounts of marajuana possession is just stupid. A simple fine and go about your day, thank you kindly. This is the same problem America is having. Prisons filled with young black males for non violent offenses.

Its a new day Bahamas

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TalRussell 3 years, 11 months ago

Comrades in House of Assembly why not first deal with way we judges in Bahamalands courts are even allowed to make cash/real estate an every court day condition of bail as a requirement to sprungs your freedom from riding the bus up to that nasty not fit for any human being thing called Fox Hill Prison?
It is an oppressive act against those not yet found guilty. Cash bails does not restrict the free movement of those accused who have deeper pockets, with so many others having to hope to God that their family members are prepared to scrap together the necessary cash to post their bond.
Sometimes I has wonder if the PLP's are any better than the reds when it comes to their eagerness imprison their own citizens. In fact the evidence points to little difference against the poor.

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banker 3 years, 10 months ago

The poor get the shaft every time, and there is no one to advocate for them. It is a proven fact that the poor are arrested more often, spend more time in prison, and constitute a higher percentage of the prison population.

Often times the poor are invisible. You can drive by a dilapidated house that deserves to be condemned and the chirren coming out dressed for school are spotless and immaculately dressed, and you would never suspect that they live in a hovel.

The only way to decrease the numbers of poor is education and economic diversification. Service jobs should not be the only obtainable employment in the Bahamas.

You just know that the youth aspires to something better. I was going through the airport on business in Nassau, and a young man - a security screener was going through my briefcase. He saw the iPad, the leather portfolio, the smartphone, the business card case and he asked me what I did. I told him that I was a banker. He wrote his name and number on a slip of paper, and handed it to me telling me that if I was hiring, he wanted a job. This was from a young man with a secure job -- but he wanted something better than going through people's luggage.

It is no wonder that young men turn to crime. There is no other way of achieving the money for natural wants, desires, and lifestyles available to everyone else except ordinary Bahamians.

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jackbnimble 3 years, 10 months ago

This man will continue to win cases because he knows the law better than the lawmakers. Y'all are feeding a snake.

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