The Tribune

By NICO SCAVELLA

Tribune Staff Reporter

nscavella@tribunemedia.net

A Supreme Court judge on Friday toured the Bahamas Department of Correctional Services as part of a prominent attorney’s bid to prove that a magistrate’s inability to grant bail is unconstitutional and results in “hundreds” of people having to endure an “inhumane” and “degrading” experience on remand.

Justice Cheryl Grant-Thompson toured some 13 sections of the Fox Hill facility to personally observe the conditions Fred Smith, QC, claims many “ordinary” people, including his clients Maria Daxon and Omar Archer, were forced to endure because they weren’t granted bail “at the first available opportunity.”

The Tribune, as well as a reporter from ZNS, were both denied the opportunity to accompany the group during the tour of the facility.

However, The Tribune understands the group toured the facility’s reception area, super maximum security, B-Block, C-block, F-block, the newly renovated G-block, N-block, H-block, the remand centre, central intake, male and female medical labs, the sick bay and the female prison quarters.

The visit is part of ongoing proceedings emanating from Ms Daxon’s and Mr Archer’s constitutional challenge to their denial of bail after being arraigned on criminal libel offences.

According to Mr Smith, Mr Archer was on remand for some 18 days, while Ms Daxon was remanded for two days until she was granted bail.

“But they shouldn’t have been in prison for a minute, because you are presumed innocent until proven guilty,” Mr Smith asserted.

The 2016 amendment to the Bail Act made charges of intentional libel, assault, stealing and a number of other previously bailable offences non-bailable in Magistrate’s Court. It resulted in an increase in the number of people being remanded to BDCS and having to apply for a bond in the Supreme Court.

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

“And what’s happened is that many people who would ordinarily get bail, such as Ms Daxon or Mr Archer when they were charged, they are unfortunately kept in prison,” Mr Smith told reporters outside the Fox Hill facility. “So you have hundreds and hundreds of people every year who are kept in prison, who would normally have bail.

“And then they have to go through the extra expense of getting a lawyer, or some of them can’t afford a lawyer and they stay in the prison until their trial. This is a really big disgrace. And so this case is challenging this abuse of people’s right to freedom. In addition, the conditions in Fox Hill are often inhuman and degrading. And so part of the case, that we’re challenging the Bail Act, we’re also seeking damages for the conditions to which (Ms Daxon and Mr Archer) were subjected whilst having to wait for bail.”

Mr Smith added: “There are more and more voices that are calling for the government to repeal that section of the Bail Act that is depriving people of the opportunity to get bail at the first available opportunity. I mean, how perverse is it that a magistrate that can send someone to jail for one, two, three, four, five years can’t give that same person bail when the person appears before that person to plead guilty or not guilty?

“So this is a real abuse, and I call on the government to stop it. Hopefully we will be able to persuade the court that it’s unconstitutional in the meantime. But the government is exposing itself to hundreds of cases of people suing for damages for inhuman and degrading treatment under article 17 of the constitution.”

Mr Smith also noted that his legal team has also launched a separate constitutional challenge to the criminal libel offences his clients were previously charged with that ultimately led to them being remanded.

“If people are accused of defamation, let them take it to the civil courts and get damages for it,” he said. “But you can’t be putting people in jail for speaking their minds, whether it’s justified or not. And that can be used—as it was in Mr Archer’s case and Ms Daxon’s—it was a politically motivated prosecution under the old, archaic criminal libel laws.”

Ms Daxon’s and Mr Archer’s constitutional challenge to their denial of bail is a part of former Cabinet minister Shane Gibson’s application for constitutional relief concerning multiple counts of bribery with which he was charged in 2017.

In September of that year, while appearing before Justice Grant-Thompson during a mention hearing in connection with Gibson’s charges, attorney Wayne Munroe, QC sought to add several people to Gibson’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 of that year.

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.

Meanwhile, Director of Public Prosecutions Garvin Gaskin, representing the Crown in the matter, has 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 Gaskin further submitted Parliament did not act unconstitutionally when in 2011, it passed amendments to the law which led to changes in a magistrate’s ability to grant bail.