By Shauna Jemmott

CHAIRMAN and Commissioners of the Commission of Inquiry (CoI) into the Georgetown Prison riot are disturbed that the West Demerara Magisterial District alone accounts for almost 50 per cent of prisoners who cannot afford bail and 1/3 were refused bail as of February this year.

Because of this situation, the inquiry report noted that “there are more remand prisoners from West Coast Demerara than from Georgetown.”

It said the facts illustrate that,that practice is influenced to an inordinate degree by views and inclinations of individual magistrates. While figures released by the (Guyana Prison Service) to the Commission indicate that 258 prisoners were remanded by magistrates at the end of February 2016, it shows that of those, 148 were refused bail while 110 could not afford bail.

“That close to 50 per cent of the persons bailed cannot afford the sum set is unacceptable. Bail is a constitutional right except in cases where the likelihood of the accused not appearing for the trial has been demonstrated (Compton English v The Attorney General of Guyana, No.1304 of 1994).”

The report suggested that since there is no known evidence highlighting that any accused person placed on bail by the High Court has absconded, “the presumption of bail being granted must be the rule rather than the exception”.

“In practice, however, magistrates, in particular, are extending the discretionary powers they enjoy in indictable matters to routinely denying bail in summary offences,” the report said, and added that murder and treason are the only charges for which bail is expressly denied.

It said remand figures suggest that magistrates substitute a presumption of guilt for a presumption of innocence, rather than considering evidence that a person will not show up for trial, according to suggestions when looking at the remand figures.

As a result, 604 out of 1014 prisoners, a fractional reflection of 2/3 of the Camp Street prison population, are on remand. Of the 604 prisoners on remand, 193 (32 per cent) are facing murder charges, while the other 68 per cent or over-two thirds, are eligible for bail.

“When the ratio of remand to convicted prisoners was only 30/70 in 2004, the Criminal Justice Review Committee (CJRC) recommended that the disparity, inequity and inconsistency of magistrates’ discretion could only be addressed by a Bail Act in order to achieve some degree of uniformity in the grant of bail. In addition to legislation, a further recommendation from the same report called for specific guidelines to be crafted for the guidance of magistrates and judges.”

The CoI report stated that the failure of this and a plethora of similar recommendations from all quarters to penetrate magisterial practice has inspired the Commission of Inquiry to call for more effective enforcement of such recommendations.

MOST EVIDENT
The immediate cause of the abuse of bail procedures is most evident at the magisterial level, with the major obstacle being “a judicial culture in which bail is viewed as a judicial gift.”

“As with sentencing, the very notion of a bail “policy” or “guidelines” is considered by the more conservative as an offensive “executive” intrusion into judicial autonomy. Such attitudes are consistent with bygone ages, in which notions such as democracy, human dignity and constitutional rights were foreign to the judicial culture,” the CoI report stated.

The report said while it has been clear to magistrates and defence lawyers that the back-log of cases in the Guyana courts is such that the constitutional rights of the accused to a trial within a reasonable time is routinely violated, in addition to this violation of constitutional rights, “refusal of bail violates all the rights associated with committal to over-crowded prisons.”

The refusal of bail to defendants on narcotics-related charges contributes greatly to overcrowding in the prison, and the report said avoiding “unconstitutionality” as a “special reason” for granting of bail has not been advanced in such cases. Section 73 of the Narcotics Drugs and Psychotropic Susbtances (Control) (Amendment) Act 1999, prevents granting bail in all cases unless “special reasons” can be advanced.

“Special reasons,” the CoI highlighted, has been “reduced in practice by both the Bar and Bench to issues related to the substance,” including quantity and circumstances, without reference to the person of the accused.

“Illustration of the lack of professional energy and standards in the administration of justice in both the Bar and Bench in Guyana is well illustrated by reference to bail in narcotics cases. Refusal of bail in narcotics cases has become virtually axiomatic in Guyana, despite the obvious injustice involved and its significant contribution to over-crowding of prisons,” the CoI report said.

The Prison Riots CoI was headed by Chairman Justice James Patterson(retd). The commissioners were Human Rights Activist Merle Mendonca and former Director of Prisons Dale Erskine. They submitted their report to President David Granger on June 1.