Ex-murder accused wants bail for murder

A NOVEL constitutional claim is engaging the attention of the High Court and the judge hearing the matter will rule later this month on whether someone accused of murder should be allowed to apply for bail.

Justice Joan Charles will give her decision on February 19 on the claim of former murder accused Akilli Charles to have the section of the Bail Act which makes murder a non-bailable offence declared unconstitutional.

Charles was one of a group of men who rioted at the Port of Spain Magistrates’ Court during the Marcia Ayers-Caesar debacle. He was given a fresh preliminary inquiry and was discharged on a no-case submission on May 21, 2019, after spending almost nine years on remand.

He has since filed the claim asking for people charged with murder be allowed to apply for bail, as is the case in several other Caribbean islands. He has argued that the blanket restriction of the right to apply for bail while on a murder charge contravenes his constitutional rights.

Charles’s lead attorney, Anand Ramlogan, SC, said the claim was a purely legal one which sought to challenge the constitutional validity of the concept of a non-bailable offence against the backdrop of the constitutional right to bail.

He said the denial of bail for murder was an ouster of the court’s jurisdiction to determine each case on its own merit.

Ramlogan also said this was not a challenge by him to get the court to change the law to give bail to murderers, but was to give an accused the opportunity to apply for bail. He also referred to some of the obstacles an accused person on remand has in advancing a good defence of the charges against him.

He said Charles spent more than nine years in prison awaiting trial before being discharged.

“You can’t tell a man he is presumed innocent, 'but you have to spend ten years in jail before trial.'”

Ramlogan also said if this case was successful, it will not mean that every murder accused would be entitled to bail or will get bail. He added that granting bail in murder cases would always be reserved for exceptional cases where the accused posed no threat to society.

President of the Law Association Douglas Mendes, SC, in his submissions as an interested party, proposed amending the Bail Act.

He said the court was obliged, by law, to alter the Bail Act. He said the decision on whether someone should be entitled to bail currently rests with the police and to an extent the Director of Public Prosecutions.

However, he said unlike the contracted killer, the court could be dealing with a father avenging the rape and murder of his daughter by taking the law into his own hands and hunting and shooting his child’s killer.

“There are murders of quite different characters. Should the father be treated the same way as the man who raped and kills his daughter? Are we living in a society where the father would be locked away in jail for long period of time – on average ten years these days – before he can defend himself? Is that the type of society we live in?

“Only to find at end of ten years, the case is dismissed on a no-case submission because the evidence is not strong enough to continue to trial?”

Mendes maintained it was plainly disproportionate to apply the blanket denial of bail to different categories of murder.

In resisting the claim, Senior Counsel Fyard Hosein, who represented the Attorney General, submitted that the Bail Act was a law that could not be tested against sections 4 and 5 of the Constitution, which guarantee the rights to freedom and not to be arbitrarily detained.

He agreed there were different types of killings but said TT could not categorise them, since that would need a three-fifths majority in the Parliament to do so and this was not likely here. He said there was a reason why other islands gave a murder accused bail, because of parliamentary intervention. But he maintained it did not mean TT’s Parliament was weak, but was because the country was facing a serious crime problem reflective of society.

“Theirs are not a society at war with itself in terms of murders that proliferate the streets,” he added.

He said to allow those accused of murder the opportunity to apply for bail would “open a Pandora’s box of criminality of all sorts in the worst kind of way.”

Hosein urged the judge not to “become a Batman” by allowing the application, telling her the authority was not vested in her but the Parliament.

At the end of Wednesday’s virtual hearing, Charles gave the date for her ruling, but said she would notify attorneys if she needed additional time.