TRINIDAD and Tobago’s apex court – the Privy Council – has dismissed an appeal by the Attorney General, settling the controversial issue of granting bail to anyone charged with murder.
On Thursday, the Privy Council upheld the landmark ruling of the Court of Appeal in February, which led to the first successful bail application by a murder accused in more than a century in TT in March.
In its ruling, the Appeal Court – comprising Chief Justice Ivor Archie and Justices of Appeal Mira Dean-Armorer and Malcolm Holdip – reversed a High Court decision in a constitutional challenge by former murder accused Akili Charles.
The Appeal Court ruled that Section 5(1) of the Bail Act of 1994, which previously precluded judicial officers from considering bail for those accused of murder, was unconstitutional and was not saved law. It held that portions of the Bail Act that restricted anyone from applying for bail for murder were not reasonably justifiable in a society concerned about the rights and freedoms of the individual.
The Privy Council’s judgment said: “The Board agrees with the Court of Appeal that there was no prohibition on the grant of bail in murder cases pre or post-committal either under the common law or under the applicable legislation.
“The Attorney General’s appeal on the existing law issue accordingly fails.”
While the Privy Council judges acknowledged it had been the long-established practice of the courts not to grant cases of murder, they said it was "wrongly" assumed that the law already prohibited bail in cases of murder.
"There was no consideration of whether it was necessary or appropriate to introduce such a prohibition. No concern was expressed about the courts’ existing approach to the grant of bail in murder cases.”
Presiding over the appeal at the Privy Council were Lords Hodge, Kitchin, Hamblen, Burrows, and Stephens.
Hamblen, who wrote the decision, said the courts always retained the discretion to grant bail in murder cases and while it was hardly ever done post-committal, there remained a power to do so.
“The Board, therefore, agrees with the Court of Appeal that at common law there was no existing law prohibiting the grant of bail in murder cases either pre or post committal.”
It had been submitted by the State that because a magistrate was not required to inform an accused who had been committed for murder or other non-bailable offences such as treason and piracy – all of which carry the death penalty on conviction – then it was evident that an accused had no right to apply to a judge for bail and a judge had no jurisdiction to grant it.
“The Board rejects these arguments…So, for example, bail should be refused in cases where there are substantial grounds to believe the accused would abscond or commit further offences if released on bail.”
They also held there was no need to extend the unconstitutionality issue to the prohibition on the grant of bail by a magistrate, saying they had no such discretion under the existing law.
In the judgment, the Law Lords recognised the broad aim of the 1994 Bail Act was to prevent crime and disorder, and the main public policy concerns behind it were the reduction of the incidence of violent crime, the minimisation of the risk to public safety posed by repeat offenders, and a concern about the courts being too willing to grant bail to people who then committed further crimes.
“The Board accepts that these objectives are sufficiently important to justify the limitation of a fundamental right and in particular the right to liberty.”
However, they said any concerns about the grant of bail could be addressed by imposing conditions, rather than removing the discretion of the court to consider if someone should get bail.
“The Board, therefore, concludes that less intrusive measures could have been used,” the Privy Council’s decision said.
“A fundamental objection to a blanket prohibition of bail is that it treats all persons charged with murder indiscriminately and denies the possibility of bail whatever the circumstances and however compelling the case for bail may be. As such it operates in an arbitrary and potentially unfair and unjust way...
“For all these reasons the Board accepts that very severe consequences flow from the infringement of the fundamental rights and freedoms by the bail provision, including the undermining of the rule of law.
“The variety of circumstances in which a murder charge can arise means that there may well be cases where none of the objectives of a prohibition of bail will be served. There is no risk of absconding; there is no risk of further offending; there is no risk of interfering with witnesses or of obstructing the course of justice.
“In such cases, there is likely to be a very compelling case for bail, but the blanket prohibition means that bail will not be possible. Preventing differential treatment in cases with different circumstances involves what has been described as a ‘standardless sweep.'”
The Law Lords said this “standardless sweep” had the potential to produce unfairness and arbitrariness and was contrary to principles of fundamental justice.
The Privy Council also said the courts must be expected to be “especially respectful” of the choice made by Parliament to pass legislation and must give great weight to the judgment of the legislature regarding the importance of public interest.
However, it said, “The Board nevertheless considers that in all the circumstances of the present case the interest of the community as expressed through the will of Parliament is outweighed by the very severe consequences of the imposition of a blanket prohibition of bail and that a fair balance has not been struck."
All of the declarations of the Appeal Court were upheld.
Leading the State’s team at the Privy Council were Peter Knox, QC, Fyard Hosein, SC, and Daniel Goldblatt.
Charles was represented by Anand Ramlogan, SC, who led British QC Peter Carter, Pippa Woodrow, Adam Riley, and Ganesh Saroop. The Law Association appeared as an interested party with Douglas Mendes, SC, leading Kiel Taklalsingh, Aaron Mahabir and Kavita Roop Boodoo.
About the case
Akili Charles spent nine years on remand before Chief Magistrate Maria Busby-Earle Caddle dismissed the murder charge against him in May 201, upholding a no-case submission and agreeing with his attorneys there was insufficient evidence for the matter to proceed to trial.
In June 2021, Justice Joan Charles dismissed Charles’s constitutional claim that the bail provision was existing law.
In February, Chief Justice Ivor Archie and Justices of Appeal Mira Dean-Armorer and Malcolm Holdip reversed Charles’s ruling, holding that the bail provision was not existing law and was not validated under section 13, as it had been shown that it was not reasonably justifiable.
An application by the State for a stay of the Appeal Court’s ruling was denied by that court and the Privy Council, which deemed the matter urgent. The AG’s appeal was argued over two days in June.