Privy Council told: Parliament did not trust Judiciary on bail

THE Privy Council has been urged not to be swayed by a claim there was a measure of mistrust by the Parliament of the Judiciary when it passed legislation in 1994 to introduce a prohibition to bail for anyone charged with murder.

The “startling submission” was made by the State’s lead counsel Peter Knox, QC, in an appeal of a landmark ruling of the Court of Appeal in February, that section 5(1) of the Bail Act of 1994, which prohibited bail for people charged with murder, was unconstitutional. The Appeal Court said the provision removed the jurisdiction of judges to consider bail applications for murder charges.

In his submissions before a panel of five Privy Council judges, on the first day of a two-day hearing on Wednesday, Knox said the Parliament could override powers and freedoms provided for under the Constitution, and when it enacted the 1994 bail act it did so because of concern with the rising crime situation in Trinidad and Tobago.

As he pointed to several Hansard records, Knox said it was important to look at Parliament’s rationale in enacting the 1994 law to introduce the prohibition to bail for murder.

He said, at the time Parliament was concerned about the serious rise in crime and, when the act was passed, no one raised an alarm that it put a ban on those charged with murder applying for bail because it (granting bail on a murder charge) had never been done before.

Knox said the law was introduced to curb crime and disorder and maintain the common position as it related to offences that carried the death penalty.

“Bail was not being granted because it was thought it couldn't be, and no one saw any problem with that at all. That is because of the high crime rate. The public has the power to decide which laws are passed. “

He said there would have been an outcry if someone said the High Court should have some discretion to grant bail for murder.” He also suggested that, at the time, the thinking of the Parliament was that it did not trust the courts because at the time people on bail were committing crimes, causing serious concern.

“Parliament is saying ‘I don’t trust you' (the court) and I am taking some of your jurisdiction away.”

“Here you had a crime problem where people on bail were committing crimes. Before the Bail Act, there may have been a window of opportunity to grant bail but it was never done.

He said when the act was passed, TT was the only country which had this prohibition, but insisted it was not unreasonable especially since the act was passed by the requisite special majority needed to pass laws that took away rights.

“Parliament passed a law and maintained the common position as it pertained to murder rather than open it up. No one appears to have thought of it (granting bail for murder) but it was not unreasonable or unjustifiable.”

In his opening remarks resisting the State’s appeal, former attorney general Anand Ramlogan, SC, said it was “startling” to hear the State’s submission that the law prohibiting bail was “born out of a mistrust of the Parliament for its own judiciary.”

“I take umbrage… The fact there may be a public concern with the way the courts decide cases is not only unique to Trinidad and Tobago.” Ramlogan maintained the courts were not a populist institution he said to equate public concern with a proposition there was mistrust of the legislative arm to the judicial arm to justify an encroachment on the court’s jurisdiction, “was alarming.”

“Where does one draw the line? Today it is (bail for) murder tomorrow it might be something else.”

He said the State’s contention there was a level of mistrust in the courts because of the way bail was being granted to people who were committing crimes after accessing it was unsubstantiated and unjustified and should hold no sway with the law lords.

He also accused the State of introducing new arguments which had not been made at the Appeal Court in its concession that the courts had the discretion to grant bail before committal, although it was never done.

Ramlogan continues his submissions on Thursday.

Earlier, Knox, in defending the enactment of the act, said it was not enough to say section 5 was unreasonably unjustifiable in a society that had proper respect for the rights and freedoms of the individual as the Appeal Court held in the ruling of Akili Charles, a former murder accused who challenged the bail prohibition.

Knox said the question that had to be determined by the law lords was if the law was capable of justification. He maintained it was.

Knox conceded that prior to the 1976 Constitution, although there was a discretion for the court to grant bail for murder, this was never done. However, he said this discretion did not apply to those accused who had already been committed to trial.

“It was unusual to grant bail for murder… It was understood, before 1976, bail will not be granted for murder on committal,” he said, adding that under a 1971 ordinance, the courts always had the power to do so but only in certain special circumstances, such as unreasonable delay.

Also appearing for the State was Senior Counsel Fyard Hosein who argued that sections 4 and 5 of the Constitution were not absolute rights. He also said the fact that remandees were spending inordinate periods in prison before trial was an operationalisation problem. He said after the 1994 bail act was passed, not once did Parliament see it fit to review section 5.

“There was not a single dissent that would lead you (the court) to now remove the prohibition.”

He said an accused person, who was being denied bail on a murder charge, was not left without redress since the courts can intervene beyond section 4 and 5 considerations as it did in the Jamaican case of Pratt and Morgan.

In that case, the Privy Council held it would be unconstitutional to execute a prisoner who had been on death row for more than five years because of excessive delays between sentencing and executing the death sentence. In such cases, the death penalty is commuted to life imprisonment.

Since the Court of Appeal’s decision in February, there have been four successful bail applications.

In the matter before the Privy Council, the presiding judges are Lords Hodge, Kitchin, Hamblen, Burrows, and Stephens.