(Trinidad Guardian) The Court of Appeal’s landmark judgment on the ability of judges to consider bail for persons charged with murder has been upheld.
Delivering a judgment on Thursday, five Law Lords of the United Kingdom-based Privy Council rejected all the grounds raised by the AG’s Office as they upheld the decision of Chief Justice Ivor Archie and his two colleagues from the Court of Appeal in the constitutional case brought by former murder accused Akili Charles.
Lord Nicholas Hamblen, who delivered the board’s decision, ruled that although the Bail Act was passed by a special majority of Parliament in 1994, it did not reasonably justify the infringement of citizens’ constitutional rights in relation to applying for bail.
“Bearing in mind that less intrusive measures could have been used, the Board nevertheless considers that in all the circumstances of the present case the interest of the community as expressed through the will of Parliament is outweighed by the very severe consequences of the imposition of a blanket prohibition of bail and that a fair balance has not been struck,” Lord Hamblen said.
He said the dis-proportionality of the blanket prohibition against considering bail for murder was especially highlighted by what transpired in Charles’ case.
“That is vividly illustrated by the facts of the present case in which it was ultimately found that the respondent had no case to answer—in the meanwhile he spent nearly eight and a half years in custody,” Lord Hamblen said.
While Lord Hamblen acknowledged that Parliament had a legitimate concern over violent crime when it passed the legislation, he suggested that it could have included more criteria for judges to consider before granting bail for murder.
“Even if there had been such a concern, this could have been addressed by imposing conditions on the exercise of the court’s discretion rather than by removing it altogether,” he said.
In the appeal, Lord Hamblen and his colleagues also had to consider whether the provision was barred from review based on unconstitutionality by falling under the constitutional savings clause, which insulates colonial-age legislation that is found to be inconsistent with fundamental constitutional rights, from invalidation.
They ruled that the provision was based on Ordinances from 1917 and 1961, which prohibited magistrates from considering bail for persons charged with murder and treason. While the Board ruled that the Ordinances fell under the savings clause, it noted that such never extended to the jurisdiction of Supreme Court Judges to consider bail for any criminal offence.
Lord Hamblen pointed out that despite their inherent jurisdiction, local judges never utilised it before.
“Given the practice, it is difficult to see why there was a need to remove any discretion to grant bail and to impose a legal prohibition,” he said.
Based on their finding, the Board did not entertain a cross-appeal from the Law Association of T&T in relation to whether the ability to consider bail was extended to magistrates. It also noted that the preclusion of magistrates could not be said to be unconstitutional, as Supreme Court Judges had the discretion.
Although the AG’s Office filed the appeal after the Appeal Court’s decision in February, judges were not precluded from hearing bail applications pending the outcome, as the Court of Appeal and Privy Council refused to grant a stay.
However, of the dozens of applications from the hundreds of persons currently on remand for murder that have since been filed, only a handful have been granted thus far. In a press release following the Privy Council ruling, the AG’s Office said it was currently engaged in bail reform.
“A comprehensive system of bail reform is currently under consideration by the Office of the Attorney General and Ministry of Legal Affairs, with the focus being to encompass legislation that will secure the rights of all citizens of T&T and to take into account the views of key stakeholder and experts, including criminologists, in order to ensure properly drafted legislation formed from the foundation of a socio-psychological and criminological basis,” it said.
It noted that the Privy Council’s suggestion of implementing stricter criteria for judges to consider in granting bail for murder accused was used by the Government when it attempted to extend the life of the Bail Amendment Act earlier this year.
However, the legislation lapsed after receiving no support from the Opposition, which claimed it was in breach of the legal precedent in Charles’ case, as it sought to restrict the ability to consider bail for some serious crimes for 120 days after an accused is charged.
Charles was also represented by Peter Carter, SC, Pippa Woodrow, Adam Riley and Ganesh Saroop. The AG’s Office was represented by Peter Knox, QC, Fyard Hosein, SC and Daniel Goldblatt. The Law Association was represented by Douglas Mendes, SC, Kiel Taklalsingh and Aaron Mahabir.
