Judge slams police's practice of denying bail for joint accused

THERE is no legal basis for the “general practice” of the police of denying bail to one accused person, jointly charged with others, until they are all charged.

In a written decision delivered on Thursday, Justice Devindra Rampersad held the employment of such a practice by the police was unlawful and unconstitutional.

The judge was ruling on a claim brought by a woman who, along with her maid, was charged with possession of marijuana last year.

Kirishma Beharry and her Venezuelan maid Eduarda Salazar Pino were jointly charged after the drugs were allegedly found at Beharry’s home.

In his decision, Rampersad ordered the State to pay Beharry $75,000 in vindicatory damages after declaring that the decision of the police to deny her bail on November 8, 2019, until her maid was charged, was unconstitutional and unlawful.

He has also ordered that a copy of his decision be sent to the Commissioner of Police for his guidance and consideration in relation to the existence of such “general practice.”

Beharry was represented by attorneys Gerald Ramdeen, Umesh Maharaj and Dayadai Harripaul. The Attorney General was represented by attorneys Nadine Nabbie, Janique Mitchell, Avaria Niles and Tiffany Kissoon.

In the State’s defence, the police officer who charged the women said it was the “general practice” of the police, where people are to be jointly charged with an offence and one information is laid, the entire charging process has to be completed for the two before bail can be accessed by either one.

Beharry was charged on November 8, and was only able to access bail the next day, when the maid was also charged. Police said there was a delay in getting an interpreter to the Point Fortin police station, where the women were being held.

Rampersad said although the police had access to the station diary to ascertain when Beharry was actually charged, he failed to provide the court with a copy.

“In the circumstances where a person’s liberty is at stake and the deprivation of her constitutional rights, including to due process of law, is being challenged, it was incumbent upon him to have produced cogent and necessary records to substantiate that which he had a duty to properly record.

“His failure to do so must redound to his detriment, in that the court is free to infer that the production of the document would have contradicted his allegation. In the circumstances, the court expresses its disapproval and dissatisfaction of the actions of this officer of the law in this regard,” the judge said.

He was also not convinced by the “general practice” claim of the police.

“The nature of this 'general practice' was not established. The court has no idea of the antiquity or general acceptance of this alleged practice, nor is there any basis – whether legal or factual or conventional...

“The generality of this alleged practice was not established and no senior police officer gave evidence to establish the validity or existence of such a 'general practice,’” he said.

“In this case, an alleged, un-established and uncorroborated ‘general practice’ is a far cry from any clear and unambiguous words by which a person’s right under the Constitution can be curtailed.

“Bearing in mind the constitutionally enshrined right to be presumed innocent until otherwise proven according to law, along with the right to bail, any unnecessary and prolonged deprivation of liberty by unlawful and undue delay in granting access to bail without just cause is one which may not stand up to constitutional scrutiny,” Rampersad said.

“There has been no justification whatsoever for this alleged unsubstantiated ‘general practice,’” he added, saying that the police unlawfully trespassed on Beharry’s constitutional rights by deliberately curtailing her access to bail.

“There has been no attempt to justify the same and, in the circumstances, it is not only unjustified but it is also unjustifiable.”