Judges rule on expired Bail Act

THREE appellate court judges have ruled that the now expired Bail (Amendment) Act of 2015, which led to people detained under the amendment being denied bail for 120 days, did not infringe anyone’s rights.

In a written ruling, Justices Gregory Smith, Prakash Moosai and Peter Rajkumar held that although the amendment resulted in the incarceration of accused people for 120 days on the “say-so” of the prosecution, the preservation of section 5(1) in the original and amended Bail Act preserved the constitutional right to bail.

Their ruling upheld an appeal by the Attorney General which challenged the declaration of a High Court judge who, in October 2016, held the amended legislation was unconstitutional and “was not reasonably justifiable in a society that had respect for the rights of individuals.”

Justice Carol Gobin had also declared that the denial of bail to Justin Charles – a police officer – and Danielle St Omer – a Roytec student – in accordance with section 5 (5) of the act, infringed several of their rights under the Constitution. They were also ordered to receive compensation from the State.

The controversial law expired on August 15, 2016, when the built-in sunset clause lapsed, and the Opposition failed to support an extension of the law, as well as the Anti-Gang Act. The Anti-Gang Act 2018 does not make gang-related offences non-bailable.

It was intended that the law, which was passed with a three-fifths constitutional majority, would target people with pending charges, or charges for unlawful possession of a firearm or gang activity.

However, both Charles and St Omer were denied bail, although the former was charged with perverting the course of justice and for receiving a bribe, and the latter with several firearm-related charges, although she had a clean record.

The appeal by the Attorney General argued that section 5(1) of the same act gave magistrates a discretion when it came to granting bail.

“Section 5(1) reinforces the right to bail and gives the magistrate the discretion (on bail),” attorney for the AG Fyard Hosein, SC, submitted. He called on the judges to determine how the section was contemplated by Parliament and to look at the entire bail legislation.

Rajkumar, who delivered the ruling, recognised the apparent conflict between section 5(1) and section 5(5)(b)(ii) of the Bail (Amendment) Act of 2015.

The latter section, Smith said, was a temporary amendment to the act and on the principles of statutory interpretation, the constitutional right to bail, by virtue of section 5(1), had not been taken away, so neither Charles nor St Omer was deprived of his or her rights.

He also said the latter section was “not an abrogation of the right to bail but a provision affecting the manner of how that discretion was to be exercised in granting bail.

“Such a provision was in keeping with the powers of Parliament to make laws for the peace, order and good governance of TT,” he said, adding that it was subject to section 5(1).

“There was available discretion to grant bail,” he said, adding that the failure of judicial officers to do so was merely an error of law that did not constitute a breach of rights.