Gun Violence in Barbados: 100 Days Jail Before Bail?

Recently, there have been discussions on whether a person charged with an offence under the Firearms Act Cap. 179 of Barbados should be automatically sent to jail for 100 days or some other specified period before bail is available to him.gun_violence-1-pic

In my view, a person charged with an offence should be treated as innocent until he admits guilt or until he is found guilty. To implement laws which mandate the automatic remand of a person who is charged with a firearm offence not only usurps the power of the presiding judicial officer but defeats a fundamental principle of the rule of law, that is, a person is innocent until proven guilty. The Bail Act already sets out the circumstances under which a judicial officer may deny bail. The Bail Act also states what factors the judge or magistrate may consider when deciding whether or not to grant bail.

In my opinion, Barbados should not follow the twin island Republic of Trinidad and Tobago and amend its Bail Act to mandate that a person charged with certain firearm offences is not eligible for bail or that such a person must spend a certain period on remand before he or she can be considered for bail. Of course, the Court should always seek to balance the interests of society with the interests of the accused person. If the person charged is fit for bail in accordance with the Bail Act, the judicial officer should exercise his discretion to grant him bail.

                                                                                                                   – Kara-Je Kellman

Should Persons Accused Of Murder Get Bail?

bail picIn a preceding article we spoke about Bail in Barbados generally, with particular focus on the Barbadian Bail Act. If you read that article entitled ‘Bail in Barbados- Did You Know?’ you may recall that the Court has a discretion to grant or refuse to grant a person bail and in exercising this discretion the Court may consider certain factors set out by the Bail Act. For some time, Barbadians have been reacting to the Court’s granting of bail to persons accused of certain types of offences. Of particular interest to Barbadians is the Court’s granting of Bail to persons accused of murder. We will therefore briefly discuss whether a person accused of murder should be granted bail.

We realized in the former article that while Magistrates do not have the power to grant bail to persons accused of murder, judges of the High Court have the authority to grant bail to such persons. In Barbados, we have noticed that persons who were on remand for years after being charged with murder, have been granted bail by the Court. This has led to many persons expressing their disapproval with the Court’s decisions to grant  accused persons bail.

Some persons complain that such a decision is unfair to family members of the victim. It is completely understandable that the relatives and friends of the victim would feel some emotion upon hearing that the person charged with the murder of their loved one was granted bail.

There are also persons who disagree with the granting of bail to persons accused of murder because they believe they pose a threat to members of society. There are others, who, because they may not understand what bail is and how it works argue that the accused was released with a slap on the wrist.

Before I refer to the Constitution of Barbados, I must point out that a person accused of murder has not been found guilty of the serious offence; they have only been charged with murder. It is of the greatest importance that we digest this. An accused person has not pleaded guilty neither has he or she been found guilty of the offence for which he or she is charged. Bail should therefore not be seen as a slap on the wrist since it is not a sentence. In fact, time spent on remand awaiting trial may be considered as punishment since, where there is a finding of guilt, the Court treats such time as part of the sentence.

I must also highlight that the fundamental question, among the many questions with which the Court is faced in deciding whether to grant bail, is whether the accused person will appear at Court for the trial of the matter.

Let us turn our attention to section 13 of the Constitution which provides for the right to personal liberty. Subsection 3 is of great significance to the matter at hand. I will set it out in full to avoid butchering the provision.

Any person who is arrested or detained-

(a) for the purpose of bringing him before a court in execution of the order of a court; or

(b) upon reasonable suspicion of his having committed or being about to commit a criminal offence,

and who is not released, shall be brought before a court as soon as is reasonably practicable; and if any person arrested or detained upon reasonable suspicion of his having committed or being about to commit a criminal offence is not tried within a reasonable time, then, without prejudice to any further proceedings which may be brought against him, he shall be released either unconditionally or upon reasonable conditions, including in particular such conditions as are reasonably necessary to ensure that he appears at a later date for trial or for proceedings preliminary to trial.

Therefore, given this Constitutional provision and the provisions contained in the Bail Act, a person accused of murder is entitled to apply for bail and further, has a right to bail if he or she is not tried in a reasonable time. The Court may attach suitable conditions to the bail to ensure that the accused appears at Court for subsequent court hearings or trial.

                                                                                                                                        – Kara-Je Kellman

(You can read the article ‘Bail In Barbados – Did You Know?’ at: https://bealexattorneys.wordpress.com/2016/03/17/bail-in-barbados-did-you-know/)

Into the Looking Glass: Our Society within the Justice System


bealex boy-looking-in-mirror-f214-22-605Most of us do not ever venture into a Court unless we are a part of the Justice System in Barbados – maybe a lawyer, police officer or probation officer.

While efforts have been made to upgrade the Courts they are essentially functioning under the same physical constraints as they have been for decades.

One still approaches the Court to find people sitting on benches or standing outside the Court until they are ushered in. Some benches now have back rests but some still do not. Perhaps the Courts are intended to be an unwelcoming place because the intention is to make one uncomfortable with the visit.

Who is likely to be there

(I sometimes think however that our infrastructure reflects who we expect to use it, and thus the stark contrast between the van stand and the international airport – but that is merely a random thought. )

The Magistrate’s Court has both a civil jurisdiction of no more than $10,000.00 with some exceptions such as wrongful dismissal and a criminal jurisdiction, thereby seeking to address many of the small but not unimportant issues plaguing the society.

Individuals are often seen at their most desperate and their most vulnerable. Some manage to catch a glimpse of what it is like for those whose existence in our society are predetermined to be solitary, poor, nasty, brutish, and short.

For every charge or grievance there is a societal issue which has lead to the appearance before the Court. And arguably the appearance marks a failure of the society to deal with that set of circumstances adequately.

The underlying social issues

Assaults might stem from relationships within the community which have soured whether they be relationships between spouses or between friends.

Disputes might occur over maintenance because parents do not understand their parenting role or their understanding might be clouded by anger over the failure of the relationship.

A debt in the past which would have been forgiven between friends becomes a matter for the Court because friends consider themselves wronged somewhere along the line in the friendship – maybe a falling out over a woman.

Then there is the passing parade of those involved in minor criminal activity. Many of them young men under 25 years of age – the future of Barbados. Magistrates offer words of warning, words of reason with the certain knowledge that quite often those who appear before them will appear once again, older, with more serious crimes.

Underpinning all of this is that many of our Citizens have mental problems which just like physical problems will get worse if not treated.  

All of these matters come before the Magistrate who over time comes to recognise the human emotions layered beneath the cold bedrock of the law.

Can the Court adequately address these underlying problems?

The Magistrate’s Court is a good barometer if we wish to examine the struggles of ordinary people. It is clear that some individuals need help. Probation officers are on hand, recourse is made to investigations and reports on the family as well as reports to inform sentencing. There are some rehabilitation and counselling programmes which are available, some run by government and some which are private.

Relatively new tools have been introduced such as the Domestic Violence (Protection Orders) Act Cap. 130A and the Penal System Reform Act Cap. 139 which give the Magistrate more and better options in dealing with those who appear before him.

And yet we have not done enough.

What is to become of the individuals in now forced relationships who have the responsibility of raising children when they have not themselves come to terms with their own problems?

What is to become of the hundreds of boys and young men who appear before the Court on a monthly basis?

Should community disputes however small require the engagement of the full armament of the judicial system?

It is now normal for there to be a public outcry fuelled by social media when there is some tragic event. But the truth is we do not pay very much attention when the symptoms first appear either as individuals or as a society. 

Seeking new solutions

For those who agree that more should be done and that there should be more effective solutions, it will be a daunting task to recalibrate the thinking of the majority to the view that those who appear before the Courts could benefit from earlier interventions and evaluation, monitoring and support after trial.

Since we are no longer our brother’s keeper – let it be said too that weightier interventions and more effective programmes would make the society better for us all.

Lynette Eastmond

Bail In Barbados – Did You Know?

jailIn Barbados, a person charged with an offence or convicted of an offence is entitled to bail, subject to the Bail Act Cap. 122A (“the Act”). The fundamental test in determining whether to grant bail is whether the accused will return to court for the determination of the matter. The Court also takes into account other factors when exercising its power to grant bail or not to grant bail.

According to Section 5 (2) of the Act, the Court must take into consideration relevant factors including the following:

(a) “the nature and seriousness of the offence or default, and the probable method of dealing with the defendant for it;

(b) the character, antecedents, associations and community ties of the defendant;

(c) the defendant’s record as respects the fulfilment of his obligations under previous grants of bail;

(d) the strength of the evidence of his having committed the offence or having defaulted, except where the defendant’s case is adjourned for inquiries or a report; and

(e) the length of time the defendant would spend in custody if the court were to exercise the power conferred on it by section 218A of the Magistrate’s Courts Act” (power to remand the defendant in custody).

According to Section 5 (1) of the Act, the Court may refuse to grant an accused person bail if it believes that the accused person would fail to surrender to custody; reoffend or interfere with witnesses. Further, the Court may not grant bail if it is satisfied that the accused should be kept in custody for his own protection; for the protection of the community or if he is a child or young person, for his own welfare. The Court may also deny to grant bail to a person who is charged with an offence alleged to have been committed while on bail.

The Court may grant bail with conditions. The Court may, before releasing the defendant, require him to provide a surety to ensure his surrender to custody. Further, the Court may require a defendant to surrender his passport, report to a police station on appointed days and at appointed times, order the defendant to comply with any requirement to ensure that: the defendant surrenders to custody, does not commit an offence while on bail, does not interfere with witnesses or otherwise obstruct the course of justice or, makes himself available for the purpose of enabling inquiries or a report of any medical examination to be made to assist the court in dealing with him for the offence. If a defendant who is on bail fails to surrender to custody, the Court may issue a warrant for his arrest.

It is important to note that a magistrate does not have the power to grant bail to a person accused of murder, treason, high treason or an indictable offence under the Firearms Act. A person accused of the above offences may only be granted bail by a High Court Judge.

Where bail is denied, the defendant may reapply for bail at the Magistrate’s Court and may also apply for bail at the High Court. If the Court does not grant bail to a person who has been charged with an offence punishable by imprisonment, the accused person will be remanded until the determination of his case or until bail is subsequently applied for and granted.

                                                                                                                                            -Kara-Je Kellman

Domestic Violence: Men Can Be Victims Too!

stopdomesticviolenceTraditionally, women were seen as the victims of domestic violence and men were viewed as the perpetrators of such violence. However, it should be recognized and accepted that both men and women can be victims of domestic abuse. Recently in Barbados, the legislature amended the Domestic Violence (Protection Orders) Act, Cap. 130A (‘the principal Act’) to make provision for a comprehensive definition of the term domestic violence; to extend the classes of persons who are considered to be victims of domestic violence, among other things. The recently passed Domestic Violence (Protection Orders) (Amendment) Act, 2016 (‘the 2016 Act’) reforms the law on domestic violence and reflects the realities of a modern society by maintaining the use of gender neutral language.

The gender neutral language is notable in the given definitions of important terms. In the 2016 Act, victim is defined as “a person against whom an act of domestic violence is committed and includes a child”, and perpetrator is defined as “a person who commits an act of domestic violence”.

Previously, the principal Act did not define “domestic violence” or “domestic relationship”. The 2016 Act inserts the following definition of domestic violence: “the wilful infliction or threat of infliction of harm by one person in a domestic relationship upon another person in that relationship and includes child abuse, emotional abuse, financial abuse, physical abuse and sexual abuse”.

The 2016 Act defines “domestic relationship” as “the relationship between a perpetrator of domestic violence and victim who is a spouse, former spouse, child, dependant or other person who is considered to be a relative of the perpetrator by virtue of consanguinity or affinity and includes cohabitational and visiting relationships”.

Some men complain that police officers do not take seriously men’s complaints of domestic violence. Section 11A (1) of the principal Act as amended by the 2016 Act now provides that “a member of the Police Force shall respond to every complaint alleging domestic violence”. Men who allege that they are victims of domestic violence may therefore find solace in this provision.

Both men and women should note that, as mentioned above, the 2016 Act makes clear that domestic violence is not limited to physical or sexual abuse but extends to emotional abuse and financial abuse. The 2016 Act defines the above categories of domestic violence as follows:

  • Physical abuse means “any act or omission by a perpetrator which causes pain or injury to the body of a victim”;
  • Sexual abuse means “the performance by a perpetrator of a sexual act on a victim by the use of force, threats, fear, manipulation or guile and includes the actual or attempted commission of any of the offences stated in Part I of the Sexual Offences Act, Cap. 154”. The offences under Part I of the Sexual Offences Act include, among other things, rape, incest, buggery, indecent assault and serious indecency.
  • Emotional abuse means “any act by a perpetrator which causes psychological pain or injury to a victim and includes harassment, the use of threatening words or behaviour and withholding from a victim, access to the victim’s child, parent or guardian”;
  • Financial abuse means “the exercise of control by a perpetrator over a victim’s access to financial resources through coercion, deception or intimidation, the effect of which is to hinder the victim’s financial independence or ability to maintain a child or dependant or to ensure financial dependence on the perpetrator and includes exploitation of the victim’s financial resources and withholding the financial support necessary to maintain a victim, child or dependant”.

This piece of reformatory legislation is expected to aid members of the society to accept that men can also be victims of domestic abuse and assist in combatting the scourge of domestic violence.

 

                                -Kara-Je Kellman

Yes! A Man Can Rape His Wife!

In a previous article, we discussed whether a man can rape his wife in the Barbadian context in light of the Sexual Offences Act CAP 154 (‘the Act’) of the Laws of Barbados. Previously, the Act provided that the husband was only guilty of the offence of rape on his wife where there was in existence in relation to them a decree nisi of divorce; a separation order within the meaning of Section 2 of the Family Law Act; a separation agreement; or an order for the husband not to molest his wife or have sexual intercourse with her.

However, as recently as last night, the Senate of Barbados passed legislation creating the offence of marital rape. The Sexual Offences (Amendment) Act, 2016 is an Act amending the Sexual Offences Act CAP 154 to provide for the circumstances under which the offence of rape is committed by a husband against his wife. Consequently, it removes the restrictive circumstances under which the husband may commit the offence of rape on his wife.

Section 3 (4) of the Act now reads “A husband commits the offence of rape where he has sexual intercourse with his wife without her consent by force or fear, where he knows that she does not consent to the intercourse or is reckless as to whether she consents to the intercourse.”

Therefore, the Barbadian legislation now provides for the offence of marital rape, specifically as it relates to the husband committing the offence against his wife. This will be a welcomed change for some who believe that marriage should not erase the possibility of one partner raping the other. There are some others however who will be disturbed by this amendment since they are very devoted to traditional views. In my view, this new amendment should be embraced as it is definitely a step forward in the right direction.

                                                                                                                                           -Kara-Je Kellman

Can A Man Rape His Wife?

Perhaps many people are unable to answer the question – whether a man can rape his wife and indeed some argue that as long as the woman is the man’s wife, it is not possible for the man to rape her. Others may be surprised to discover that the offence of rape is not limited to the introduction of the penis into the vagina without the woman’s consent. In light of the above, the following briefly discusses marital rape in light of theSexual Offences Act CAP 154 of the Laws of Barbados (‘The Act’) which came into force in 1992 as an Act “to revise and reform the law relating to sexual crimes”.

First of all, it would be useful to know how the Act defines the offence of rape and what constitutes rape. Section 3(1) of the Act says “Any person who has sexual intercourse with another person without the consent of the other person and who knows that the other person does not consent to the intercourse or is reckless as to whether the other person consents to the intercourse is guilty of the offence of rape”.

Moreover, according to section 3(6) of the Act “rape includes the introduction, to any extent, in circumstances where the introduction of the penis of a person into the vagina of another would be rape of the penis of a person into the anus or mouth of another person; or (b) an object, not being part of the human body, manipulated by a person into the vagina or anus of another”.

Historically, it was believed and accepted that a man cannot rape his wife since by marrying him the woman consented irrevocably to sexual intercourse at any and all times. However, with the passage of time and the change of the status of women, this view changed. So too did the English law regarding marital rape. The case of Regina v R[1991] 2 WLR 1065 states the English position regarding marital rape; that is, there is no longer a rule of law that a wife has consented irrevocably to sexual intercourse with her husband and consequently, a husband could be convicted of the rape or attempted rape of his wife where she had withdrawn her consent to sexual intercourse.

However, in Barbados, the Act does not make such a pronouncement. In fact, the husband may only be guilty of the offence of rape in certain circumstances. Section 4(4) of the Act says “A husband commits the offence of rape where he has sexual intercourse with his wife without her consent by force or fear where there is in existence in relation to them

  • A decree nisi of divorce;
  • A separation order within the meaning of Section 2 of the Family Law Act;
  • A separation agreement; or
  • An order for the husband not to molest his wife or have sexual intercourse with her.

The Barbadian legislation may be compared to the Sexual Offences Act Chapter 11:28 of the Laws of Trinidad and Tobago. The latter does not set out restrictive circumstances in which a husband may be guilty of the offence of rape. Rather, after stating the facts which amount to an offence of rape in Section 4, the Trinidadian Act says that the section “also applies to a husband in relation to the commission of the offence of rape on his wife. Thus, in Trinidad a husband can be found guilty for the offence of rape on his wife.

In short, in Barbados, if none of the above listed circumstances exists, a man, according to the Act, is not guilty of the offence of rape where he has sexual intercourse with his wife without her consent.

                                                                                                                                         -Kara-Je Kellman

See also the article – ‘Yes! A Man Can Rape His Wife!’ for the updated Barbadian position.