Published 11 May 2017
One of the mandates of this Government has been a respect for and adherence to the rule of law. We have recognized that any real pursuit of a meaningful democracy has to embrace a healthy commitment to respecting our laws and upholding same. These objectives mean that there must also be a regular weighing and balancing of the rights of the individual against the collective demands of the state.
The Constitution clearly outlines and supports the observance of due process of law for persons who have been accused of breaking the law. This recognition of the protection of the law to all persons is one of the hallmarks of our particular system of Government within the Commonwealth Caribbean and has been zealously and jealously guarded as our justice system has developed and unfolded.
The Constitution is equally clear that the enjoyments of rights and freedoms by any person should not impair the rights of others or the public interest.
Towards the end of last year, the Royal St Christopher and Nevis Police Force made a number of recommendations for change to the legal framework relating to criminal justice in the Federation. These recommendations to amend the laws would seek to create more efficiency in the criminal justice sphere, further empower law enforcement and strengthen the deterrent effect of criminality.
In that regard, it was recommended that both the DNA Act, 2013 and the Justice Protection Act, 2012 should be considered to be brought into force. Both of these Acts were passed by the Parliament but have not yet come into operation. It is anticipated that the DNA Act should serve to assist in solving crimes and the Justice Protection Act should assist with the protection of witnesses.
It is anticipated that the regulatory framework for advanced passenger information would be strengthened by a Bill to be debated in the next meeting of Parliament. This should help ensure that the movement of persons who have committed crimes is subject to greater monitoring and control, not just nationally but also regionally and internationally.
Additionally, it was recommended that both the Bail Act and Firearms Act should be amended. The proposed amendment to the Bail Act would entail measures to address, reduce and prevent offences by persons charged with capital offences involving firearms. In other words, it has been observed that a number of persons charged with capital offences involving firearms have, whilst out on bail, committed other capital offences.
The grant of bail is often accompanied by the requirement of persons to act as sureties or guarantors that the person being released will appear. The person may be required to report to the police station at specific times, the person’s passport may be held if the person is seen as a flight risk and of course, if the Court feels that a complainant or witness’ safety might be in jeopardy, bail may be refused. This is a balancing act that is usually undertaken by the Court. At all material times though, the competing interests of all the persons involved must be taken into account.
An assessment of trends over the past 5 years, has revealed that criminals charged with capital felonies and who have been granted bail, have gone on to orchestrate and commit other capital felonies. This alarming trend has led the Government to seriously consider the possibility of amending the 2012 Bail Act to include a certain category of offences that would not be eligible for bail. Currently section 3 of the Bail Act, gives a discretion to the Court to determine whether bail should be granted or denied. Subsection (2) provides for a partial exception. Where a person is charged with certain offences, including murder, then bail may only be granted by the High Court.
The recent trend is quite troubling and seems to require a proactive approach in the fight against crime. Consequently, the Police Force has recommended that the Bail Act be amended to tighten the framework and to address persons charged with capital offences involving firearms under a different scheme rather than the granting of bail.
In that connection, people are presumed innocent until proven guilty in the Federation. The presumption of innocence and the protection of the innocent persons in our society must be balanced in order to achieve the constitutional mandates of peace, order and good government.
This then necessarily entails a determination of what is a level of unacceptable risk to the People of the Federation. It is generally accepted that the risk of granting bail is unacceptable for a variety of reasons, including, if the accused person is likely to commit another offence or endanger the community. Usually, under the framework of the Bail Act the court would deny bail under those circumstances.
The State therefore is seeking to remove the possibility of bail as an option in cases where capital offences with the use of a firearm have been committed. The intent is not to deprive anyone of due process of law but to ensure that all persons are adequately protected under the law.
The proposed amendment to the Firearms Act would entail increasing the penalty for a summary offence from a term of a maximum of ten years in certain cases, to a term of imprisonment not exceeding twenty years. The penalty for indictable offences is a maximum of life imprisonment.
The Government of St Kitts and Nevis is committed to the fight against crime and we will continue to bolster the laws of the Federation in keeping with this goal.
