Bail without charge Attorney raises alarm over potential abuse of pre-charge regime

Attorney-at-law Kymberli Whittacker has expressed unease about the use of pre-charge bail, which allows police to impose conditions on individuals under investigation before they are formally charged, warning that it could become burdensome for persons who are not genuine suspects.

Her concerns were raised following the case of her client, Sebastian Birch, whose photograph was released by police as one of the men suspected in the robbery and the shooting of a female pump attendant in the Corporate Area.

Birch was later able to establish an alibi, and the police, according to Whittacker, determined that he was not one of the perpetrators. However, he was still placed on pre-charge bail and is required to report regularly to the police for the next three months.

“The police concluded that Mr Sebastien Birch was not a participant in this robbery,” she told THE STAR. “He should never have been placed on a pre-charged bail in the first place.”

“Pre-charge bail was intended by Parliament to facilitate genuine investigations, where there are reasonable grounds to suspect an individual of an offence. It was not to impose months of restrictions on someone who is not a suspect and has been vindicated by a solid alibi,” she said.

Whittacker said the case highlights the need for careful application of the provision under the Bail Act, which came into effect in 2023, to ensure that individuals who are not suspects are not unnecessarily placed under restrictions.

Pre-charge bail allows the police to release a person who has been arrested while an investigation continues, even though no formal charges have been laid. The conditions can include reporting requirements, travel restrictions, and curfews or orders preventing contact with certain individuals. The conditions are subject to legal time limits.

Whittacker said the intention of pre-charge bail is to support legitimate investigations, but safeguards must remain in place to prevent innocent persons from being subjected to unnecessary restrictions.

Birch, a 24-year-old bearer and construction worker, said his life changed after his photograph was published online by police on July 8 as one of three men being sought in connection with the robbery and shooting of a female pump attendant on Deanery Road.

He maintains that he was nowhere near the scene and said video footage supports his claim.

Birch said the damage to his reputation had already been done.

“Persons are saying that they want to kill me. I am being threatened. I am very fearful for my life because my picture was posted all over the place,” he said.

Hours after the pump attendant was robbed and shot, the police released a collage of three men and appealed for them to turn themselves in. The following day, police reported that two men linked to the incident were fatally shot during a police operation in Spanish Town, St Catherine.

Birch said the photograph used by police was taken outside a bar in another section of the Corporate Area days before the robbery. He said he believes it was captured by the operators of the establishment after the business was robbed.

He explained that he had gone to the bar after being sent to purchase food and had won $4,500 while playing a game box.

“I am not too familiar with gambling and didn’t know I should show the bartender before. It became a bit of issue, and the owner was called and the box was checked and they realised that I had won the money for real and it was given to me. That was the money that I had in my hand in the photo. Thing is, I didn’t even leave home to go to the bar. My uncle had sent me to buy KFC, and the line was long, so I just went across to where the bar was,” he said.

After learning that his image was circulating, Birch said he went to the Olympic Gardens Police Station to clear his name. He alleged that despite officers telling him they knew he was not involved, he was later arrested and spent eight days in custody at the Duhaney Park Police Station.

Birch said he was eventually released on pre-charge bail on reasonable suspicion of wounding with intent and aggravated robbery. One of his conditions requires him to report to the police twice weekly.

He said the restrictions have affected his livelihood and left him fearful.