Appeal Court to decide on suspending 'bail for murder' ruling

ON THURSDAY, the Chief Justice and two Appeal Court judges will hear a petition by the State to extend the suspension of its decision which will allow anyone accused of murder to apply for bail.

The court’s order has been temporarily suspended, but submissions on a longer suspension will be entertained on Thursday to allow the State to appeal the decision at the Privy Council.

The application for the suspension, filed on February 21, contained affidavits from the Director of Public Prosecutions, the head of the Legal Secretariat at the Office of the Attorney General, and the acting permanent secretary of the Ministry of National Security, all of whom spoke to the hardships various state departments will face if there is not a longer suspension.

DPP Roger Gaspard, SC, said there would be a grave risk of injustice if the suspension was not granted. He highlighted three main points to support his plea. They included the current temporary halt on jury trials because of the pandemic; inadequate staffing levels at the DPP’s office – with only 46 available attorneys for the 13 magisterial districts, high courts and the appeal court; and inadequate infrastructure to support electronic monitoring.

Acting PS in the National Security Ministry Gary Joseph, in his affidavit, spoke of the strain on not only the electronic monitoring unit (EMU) but also the probation officers’ department and the Forensic Science Centre.

He said the EMU’s staffing levels were already stretched and exacerbated by the pandemic, and the unit, still in its infancy stage, did not have the proper equipment to monitor a murder accused at this time.

The cost of appropriate devices, he said, was in excess of $10,000 each, and funds would have to be allocated for this and additional staff recruited.

Additional staff will also be needed for the probation department as well as the FSC, as it would, on short notice, be required to provide various reports that might be required for bail applications, he deposed.

“In the event there is an avalanche of applications, this will put additional strain on staff and financial resources which were not budgeted for in our draft estimates 2022 and in our mid-year review.”

In a separate affidavit, the director of the AG’s secretariat in the Ministry of the Attorney General and Legal Affairs, Tenille Ramkissoon, said if the court’s decision was not suspended, there was the potential for a considerable number of people filing litigation against the State for breach of their constitutional rights.

She said the Chief State Solicitor and the Solicitor General's departments – both of which handle civil litigation for the State and various ministries and agencies – were already stretched to their limits as their infrastructure was not designed to meet “this likely level of extensive litigating.” Those departments are also severely short-staffed and would not be able to meet the demands if there were a sudden increase in cases.

In its application for leave to appeal to the Privy Council, the State identified several “errors” in the Court of Appeal's ruling.

It noted the decision represented a departure from a previous decision of the appeal court and affected several decisions of the Privy Council.

It will be argued that the Appeal Court failed to pay sufficient regard to legitimate public policy concerns and the risk to public safety posed by repeat offenders.

In addition to the strain on the Office of the DPP, there would also be an additional demand for the services of the Public Defenders Department, taxing the newly created unit funded by the Government.

The State has assured it will pursue its appeal urgently

In its decision, the Appeal Court upheld the appeal of a former murder accused, Akilli Charles, who challenged the constitutionality of section 5(1) of the Bail Act of 1994, which made murder a non-bailable offence.

The court, comprising Chief Justice Ivor Archie and Justices of Appeal Mira Dean-Armorer and Malcolm Holdip, held the section was unconstitutional, as it interfered with the court’s jurisdiction to grant bail, in breach of the separation of powers.