SEVERAL members of the joint select committee of Parliament now reviewing the proposed Bail Act, 2022, have deemed the use of the term “defendant” to be prejudicial in reference to someone who has not been charged with a criminal offence, and are suggesting that “suspect” be used instead.

Under the Bill, which lists the interpretation of various terms, “defendant” means an individual who is charged with or convicted of an offence; or detained or arrested for an offence, or for whose arrest a warrant (endorsed for bail) has been issued, and who has not yet been charged with the offence.

For almost two hours during their deliberations on Wednesday, members vigorously argued about this umbrella term. Key among those in disagreement with its use was Government Senator Natalie Campbell Rodriques who said that while she was 100 per cent in support of the Bill, she had an issue with the segment of the definition which says “has not yet been charged with an offence”.

“I am not in support of referring to somebody who has not been charged as a defendant — I am completely against this. I think it is prejudicial and I do not think it matches the law in any other Commonwealth jurisdiction,” she said.

Campbell Rodriques further argued that it is important for legislators to consider how Jamaican citizens think about the use of certain words, particularly in a social context.

“How people feel matters. I am still not convinced at all that we should be calling people who have not been charged a defendant. It matters to some people. It’s a small thing maybe but it does matter and I would like us to reconsider it,” she said.

She further questioned in the case of a person who has not been charged, “what is the harm other than having to rework the legalese around it in just calling them a suspect? Do we hurt anything at all other than to reword and probably make the drafting a little bit more difficult?”

Opposition member Fitz Jackson said he shared Campbell Rodriques’ concerns, pointing out that he had also raised this issue in earlier deliberations on the Bill.

“My concern is that someone who has not been charged but merely suspected of an offence should not be placed in the same criteria as someone who has been charged. Just the mere fact of now planting a label of a defendant, equivalent to somebody who has been charged, I think it is a big leap,” he said, while also questioning why they cannot be described as suspects.

In response, chair of the committee, Marlene Malahoo Forte, said the term is “something we haggled over behind the scene.”

She said it was taken into consideration to use the different terms — suspect, accused and convict — at various stages of the legal process, which she was initially in agreement with, but upon the guidance of the Chief Parliamentary Counsel (CPC) Judith Grant, and other members of her legal team, she was persuaded that using an umbrella term was “a better way to approach it.”

Malahoo Forte, who is also minister of legal and constitutional affairs, said that the drafting of the Bill was done in a way to ensure that the person who is to be granted bail, regardless of the stage, would be entitled to all of the protections in the law.

Malahoo Forte further argued that to the extent that the concern is about prejudice from the label of “defendant”, she said that “practically any label can connote some level of prejudice”.

“It just shows the extent of the public education that is required. Bear in mind that when you create policy, and you give drafting instructions, the instructions have to be translated into legislation and I have to give way to the experts and it doesn’t mean that any concern raised is disregarded. But if it is we are looking for a term that is least prejudicial and we have the term used in Jamaican law — as it is used in other jurisdictions — and it covers the categories, without bringing sharply into your face the detriment that flows… but we will have to come back to it because it is one of the issues flagged for consideration,” she said.

Jackson, Campbell Rodriques and Minister of Justice Delroy Chuck also questioned why the terms could not be separated.

Grant explained that the Bill deals with the grant of bail at three different stages of criminal proceedings — pre-charge bail, bail after charge and bail after conviction. “There is therefore a need for a general term that would cover all of three categories and defendant was the term chosen,” she said.

The CPC added that some of the presenters on the Bill ascribed a narrow meaning to the term defendant meaning a person who is charged, but in its ordinary meaning defendant is capable of a much wider meaning.

“Ordinarily, it would mean a person against whom action is taken, whether in civil or criminal proceedings. It is rather restrictive to latch on to a definition to suggest it only means a person who is charged. There are examples in legislation in which the term is used in its wider sense, for example, in the Evidence Act and in the Judicature Parish Courts Act,” Grant said.

In her remarks, director of legal reform Nadine Wilkins suggested that since the issue will need to be revisited as several people had raised it in their submissions, “perhaps it would be more useful if we did some background research to really and truly look at how this word used and we would send it to you [Malahoo Forte] so that when we get to the matrix, we can discuss it again.”

In the meantime, Opposition member Donna Scott-Mottley expressed concern with how committee members’ views were being treated by the chairperson.

“This is the best forum in which any kinds of disagreements should be ventilated. If persons have a different view, they should be allowed to air it, so that at the appropriate time, we can find a consensus. But what I am feeling, madam chair, is that persons are not supposed to say ‘I disagree with this particular aspect of it’. Madam chair, perhaps it is not your intention, but it does come across as lecturing everybody who has a different view,” she said.

Malahoo Forte noted that it was not her intention to “shut down anything, but do pardon the passion with which I come to the debate, because we do bring our own perspectives and experience to bear on the matters. I think where I come across a little bit more passionately, is where it appears to be that something inaccurate has been said, not that it is different in perspective. We are not all going to see it the same way.”