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Gibson Lawyers Claim Bail Act Limits 'Cruel And Unusual'

By NICO SCAVELLA

Tribune Staff Reporter

nscavella@tribunemedia.net

ATTORNEYS for former Cabinet minister Shane Gibson yesterday charged that a magistrate’s lack of jurisdiction to grant bail according to the Bail Act is tantamount to “cruel and unusual treatment” towards a defendant.

Wayne Munroe, QC, during a hearing over Gibson’s constitutional motion, submitted to Justice Cheryl Grant-Thompson that the Bail Act is unconstitutional on the grounds an individual will be remanded whether “you’re charged with something light or serious”.

Mr Munroe submitted that as there is no “differentiation” between the lesser and more serious offences with regards to bail, an individual will be remanded regardless if they are charged with an offence where the maximum penalty is six months, or one where the maximum penalty is 10 years.

“But all of these are being tried in the Magistrates Court, which doesn’t try the very serious matters which are tried in the Supreme Court,” he told The Tribune after the hearing.

“But because there is no differentiation between the more serious matters, we say that amounts to cruel and unusual treatment.”

Mr Munroe further highlighted the “arbitrary” nature behind the span of time between applying for a bond and the hearing in the Supreme Court. He noted during the hearing that one of the persons on Gibson’s application had his bail hearing some 20 days after applying for a bond.

Another applicant was faced with a 15-day gap between their application for bail and the consequent hearing, he said.

“You could get remanded for something that you could go to jail for six months for, for a month,” Mr Munroe explained. “Whereas I could get bail in three days for something that is for 10 years.

“So if it’s serious and they (the Crown) don’t think you should have bail, we don’t have a problem with that. But all of these were matters where there was no objection to bail.”

In response, however, Director of Public Prosecutions (DPP) Garvin Gaskins submitted the basic principle of constitutional law is that every piece of legislation passed by Parliament is presumed to be constitutional, and there is consequently a “heavy” burden to “dislodge” that presumption.

Mr Gaskins further submitted Parliament did not act unconstitutionally when in 2011, it passed the Bail (Amendment) Bill which led to changes in a magistrate’s ability to grant bail.

Regarding Mr Munroe’s submissions regarding the delays between a bail application and a bail hearing, Mr Gaskins submitted any myriad of reasons could be behind those delays, including but not limited to the court’s case load. However, he maintained the Supreme Court is not acting in an “arbitrary” manner.

Mr Gaskins further submitted that the court has a system in place to deal with bail applications, and that the court wants to be properly assisted at all times regarding the granting of bail. The matter was adjourned to April 11 and 12, 2018.

In September, appearing before Justice Grant-Thompson during a mention hearing in connection with Gibson’s bribery and extortion related charges, Mr Munroe sought to add several people to his client’s initial notice of motion for constitutional relief.

Those people, Mr Munroe said at the time, would have been remanded for different periods of time and would not have had the luxury of having such an application filed on their behalf like Gibson, who was granted $40,000 bail by Justice Grant-Thompson in August. Nonetheless, Mr Munroe said at the time that should the application prove successful, it could result in a “substantial liability of the state” that could potentially cause the government to pay “millions of dollars” in damages to those persons affected.

Gibson is not seeking any relief from the application, however, he remains on the application essentially as a respondent due to him being the original applicant.

Fred Smith, QC, attorney for self-styled activist Omar Archer Sr and attorney Maria Daxon, have filed affidavits in connection with Gibson’s constitutional relief application. Mr Munroe told The Tribune previously that he and Mr Smith have agreed that their respective matters should be heard together, given they cover the same material.

On August 3, Gibson was arraigned before a magistrate on 36 bribery and extortion related charges: one count of misconduct in public office, 16 counts of bribery, two counts of conspiracy to commit bribery, two counts of conspiracy to commit extortion and 15 counts of extortion--all of these concerned with Jonathan Ash.

The number of bribery and extortion related charges against Gibson has since decreased to 31, though the amount he is alleged to have solicited from Mr Ash remains the same.

About an hour after his initial arraignment, Justice Grant-Thompson granted Gibson $40,000 bail with two sureties and on the condition he does not reoffend and attends his trial. She did not impose any travel restrictions on Gibson, and neither was he required to surrender his travel documents or check into any police station.

Shortly after Gibson was granted bail however, Mr Munroe shared his intent with reporters to challenge the constitutionality of Section 4 3A of the Bail Act.

Last summer’s amendment to the Bail Act made charges of intentional libel, assault, stealing and a number of other previously bailable offenses non-bailable in the Magistrates Court. That amendment resulted in an increase in the number of persons being remanded to the Department of Correctional Services and having to apply for a bond in the Supreme Court.

Additionally, the amendment did not return the power of magistrates to grant bail for the offenses of drug possession with intent to supply, certain firearms matters, rape, housebreaking, attempted murder and threats of death.

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