[UPDATED] Appeal Court clears way for legal avenue: BAIL FOR MURDER

ANYONE accused of murder will now have an opportunity to apply for bail.

This will not be automatic but will now require the courts to hear an application to determine the merits of each individual case before deciding if the bail should be granted or denied.

This is the effect of the Appeal Court’s ruling on Thursday as it allowed the landmark appeal of a former murder accused who asked for a declaration that anyone charged with the capital offence should have the opportunity to apply for bail.

Chief Justice Ivor Archie and Justices of Appeal Mira Dean-Armorer and Malcolm Holdip declared that section 5(1) of the Bail Act 1994 was not reasonably justifiable in a society that had a proper respect for the rights and freedoms of the individual.

They also declared that the particular section was unconstitutional as its effect removed the jurisdiction of judges to grant bail for murder.

Archie, who delivered a summary of the court’s written decision, said prior to the amendment of the Bail Act there was no general prohibition to the grant of bail to persons charged with murder.

The court, he said, had the jurisdiction to do so. He also said the court considered whether Section 5 was saved law but held the “unanimous view” it was not but reserved making further pronouncements on the effects of the clause as this particular point of law is being reconsidered by the Privy Council.

He said it was the court’s unanimous decision that the issue of granting bail was a core judicial function and, as it agreed a breach of the separation of powers was not a stand-alone reason for striking down a statute, held that “by removing the jurisdiction of High Court judges to grant bail to persons charged with murder, section 5 has trespassed on a core judicial function.

“In this way section 5 offends a critical aspect of the rule of law and is not reasonably justifiable in a society having respect for the rights and freedoms of the individuals.”

Archie, while admitting it was not a justification, said the court was aware of the ramifications its decision would have, not just for the parties, but also the entire population.

He invited the public to read the court’s ruling when it becomes available to understand the decision and, in particular, what it does not say.

QUESTION OF
CONSTITUTIONALITY

The challenge to the Bail Act was mounted by Akilii Charles after Justice Joan Charles dismissed Akilii Charles’s constitutional claim.

Refusing to declare section five of the Bail Act, which makes murder a non-bailable offence, Justice Charles said the former murder accused failed to establish that the legislation directly interfered with judicial proceedings, or breached the doctrine of the separation of powers, to make it unconstitutional.

She had been asked to strike down the specific portion of the Bail Act to allow people charged with murder to apply for bail.

In her decision, Charles said she could not depart from previous decisions of the Privy Council on separation of powers, nor did she agree that the effect of the legislation removed all judicial input on the issue of granting, or refusing, bail for murder.

She pointed out that judges of the High Court, in the past, did not grant bail for murder, either at common law or by statute.

Charles said the classification of murder was a task for the legislature, and Parliament alone should determine if there should be bail for the capital offence.

Akilli Charles spent nine years on remand before the murder charge against him was dismissed in May 2019 by Chief Magistrate Maria Busby-Earle Caddle who upheld a no-case submission, agreeing with his attorneys there was insufficient evidence for the matter to proceed to trial.

But, Akilli Charles’s lead counsel, Anand Ramlogan, SC, had argued the court had the discretion to grant bail even for crimes considered heinous.

He said a judicial custom to not grant bail for murder could not be crystallised in law.

“It is an unlawful, self-imposed fetter on the court’s jurisdiction where the liberty of the subject is at stake.”

Ramlogan also said the doctrine of separation of powers was a structured mechanism to protect and preserve fundamental rights, but while there will be an overlap, there were certain areas that remained exclusive. He had also asked the judges to consider the reality of the criminal justice system and a ten-year wait by an accused to go to trial. He said constitutionally, lengthy incarceration can be considered unreasonable.

"CAN'T LOSE TOUCH WITH REALITY"

“We cannot lose touch with the reality on the ground.

“The harsh reality is you have to tell a man you are presumed innocent but must stay in jail for ten years…But don’t worry you will get a fair trial. The system is eroding.”

Senior Counsel Douglas Mendes, who advanced the Law Association’s position at the High Court and the Appeal Court, said, on the question of bail for murder, there was no reason why a judicial function should be taken away for serious offences such as murder which still carried the mandatory death penalty.

At Thursday’s hearing, lead counsel for the State, Fyard Hosein, SC, had asked for a stay, or suspension, of the Appeal Court’s order to allow the State to file an application to challenge the decision at the Privy Council, saying it could lead to a flood of accused persons applying for bail.

However, the judges invited submissions on the stay/suspension which will be heard on March 3, as Ramlogan said he will not object to the granting of leave to apply to the Privy Council. Until then, there will be no effect of the court's ruling as they granted what was termed a "bridging order" or temporary stay.

The State will also be allowed to advance an affidavit which will speak to its resources having to deal with a multiplicity of applications that are likely to come before the court.

Hosein said it was the hope that the courts do not become inundated with “an avalanche” of applications for bail and class-action constitutional lawsuits.

“Pandora’s box will be opened,” he said as he referred to TT’s crime situation and the country’s proximity to Venezuela.

“I am not looking for dark clouds bursting down but want to deal with the practicability of the issue,” he said.

“…The possibility exists that the apex court would rule in favour of the State, but it may be too late since some murder accused would have already been released on bail.

“What you want to do is preserve the status quo until the Privy Council delivers its ruling,” said Hosein.

In response, Ramlogan said the ruling did not translate to an avalanche of successful bail applications.

He emphasised that the case was not for the grant of bail for murder but the opportunity to apply for bail. “The stringent criteria of the Bail Act will have to be applied and can be in exceptional cases.

The Chief Justice also said the court did not share the “trepidation” of the State, as all bail applications will have to be considered individually, and assured the court will deal with them in a structured way given its own resources.

CJ'S REASONS

In the decision, Archie said judges of the Supreme Court always had the power to grant bail in cases of murder but section 5 of the Bail Act derogated from fundamental rights and freedoms and, under the separation of powers, removed that core judicial power and discretion from the Judiciary’s remit.

"... There is nothing to suggest that, having regard to the way in which courts have historically exercised the power to grant or refuse bail in cases of murder, any statutory restrictions are necessary. The courts are perfectly capable of protecting the public interest.”

At the hearing, he said while it might be a tempting crime-fighting strategy, the Constitution did not allow it.

“…It cannot be suggested that a way of solving a crime problem is to put persons in detention who enjoy the presumption of innocence.”

He maintained the ruling did not mean that all those accused of murder will be entitled to bail but were only being given the opportunity to apply and this will be considered by the magistrates or judges.

He said a number of factors will be taken into consideration including the likeliness to re-offend, the possibility of absconding and the gruesomeness of the crime, among others.

“While it is quite understandable that not everyone will agree with decisions on bail made by the courts (whether in a murder case or any other case), removal of the discretion is not a solution.

“It is actually likely to create injustice to accused persons in some instances and, in any event, creates a troubling precedent for interference with judicial powers to solve a problem that, particularly in the case of murder, has not been proven to exist,” the Chief Justice said in the decision.

He also said it also did not follow that there will suddenly be a mass exodus of persons currently on remand from the prisons.

“If persons on remand who are charged with murder apply for the grant of bail, their applications, like any other, will be given due consideration with such alacrity as is possible given the resources of the courts.

“In many, if not most instances it would still be appropriate to deny bail, having regard to the considerations set out in the Bail Act. The nature and seriousness of the offence charged and the likely penalty, if convicted, will always be major considerations in the decision whether or not to grant bail,” he assured.

However, he maintained, those were not the only determinative considerations for every case of murder, adding that what it did mean was that, “prosecutors must be prepared, at the earliest juncture (preferably at the first appearance), to provide the court with all of the relevant information to assist in making an informed decision with respect to bail (as indeed they should in relation to every accused person regardless of the offence charged),” he said.

Also representing Akilli Charles were Jayanti Lutchmedial, Ganesh Saroop. Appearing with Hosein for the AG were Amira Rahaman, Diane Katwaroo and Tenille Ramkissoon, while Kiel Tacklalsingh, Kavita Roop-Boodoo and Aaron Mahabir appeared for the Law Association.

The State will also pay Charles' costs.

This story was originally published with the title "Appeal Court rules on Bail Act: Murder accused can now apply for bail" and has been adjusted to include additional details. See original post below.

CHIEF Justice Ivor Archie and two Appeal Court judges have allowed an appeal of a former murder accused who asked for a declaration that anyone charged with the capital offence should have the opportunity to apply for bail.

In a ruling on Thursday morning, Archie and Justices of Appeal Mira Dean-Armorer and Malcolm Holdip declared that section 5(1) of the Bail Act was not reasonably justifiable in a society that had regard to the rights of individuals and was unconstitutional as it removed the jurisdiction of the court to consider bail for murder offenses.

The judges also declined to order an immediate stay/suspension of their order as was requested by the Attorney General (AG) whose attorneys have cautioned the decision could lead to a flood of accused persons applying for bail.

They have invited submissions to be heard on March 3 at which time they will determine how long if any, a suspension will last to allow the AG to appeal to the Privy Council.

"We don’t feel confident at this stage in making an order suspending the operation of judgment for any significant time," Archie said.

Archie said he did not have the trepidation of the AG of the floodgates being opened, adding that the court will have to deal with each bail application in a structured way and will have to be considered individually.

The challenge to the Bail Act was mounted by Akilii Charles after Justice Joan Charles dismissed Charles’s constitutional claim.

Refusing to declare section five of the Bail Act, which makes murder a non-bailable offence, Justice Charles said the former murder accused failed to establish that the legislation directly interfered with judicial proceedings, or breached the doctrine of the separation of powers, to make it unconstitutional.

She had been asked to strike down the specific portion of the Bail Act to allow people charged with murder to apply for bail.

In her decision, Charles said she could not depart from previous decisions of the Privy Council on separation of powers, nor did she agree that the effect of the legislation removed all judicial input on the issue of granting, or refusing, bail for murder.

She pointed out that judges of the High Court, in the past, did not grant bail for murder, either at common law or by statute.

Charles said the classification of murder was a task for the legislature, and Parliament alone should determine if there should be bail for the capital offence.

Charles spent nine years on remand before the murder charge against him was dismissed in May 2019 by Chief Magistrate Maria Busby-Earle Caddle who upheld a no-case submission, agreeing with his attorneys there was insufficient evidence for the matter to proceed to trial.

But, Charles’s lead counsel, Anand Ramlogan, SC, had argued the court had the discretion to grant bail even for crimes considered heinous.

He said a judicial custom to not grant bail for murder could not be crystalised in law.

“It is an unlawful, self-imposed fetter on the court’s jurisdiction where the liberty of the subject is at stake.”

Ramlogan also said the doctrine of separation of powers was a structured mechanism to protect and preserve fundamental rights, but while there will be an overlap, there were certain areas that remained exclusive.

Senior Counsel Douglas Mendes, who advanced the Law Association’s position on the question of bail for murder, said there was no reason why a judicial function should be taken away for serious offences such as murder which still carries the mandatory death penalty.