PR – The Trinidad and Tobago government is expected to outline its position on Friday to the ruling by the Court of Appeal that persons accused of murder can now apply for bail.
Attorney General, Faris Al Rawi is expected to outline the government’s position when he holds a news conference less than 24 hours after the Court of Appeal, headed by Chief Justice Ivor Archie said that while bail could be extended to persons charged with murder, it would not be automatic.
The Court of Appeal Thursday in its landmark ruling said that the courts will now have to hear an application to determine the merits of each individual case before deciding if the bail should be granted or denied.
The Appeal Court, comprising Justices Archie, Mira Dean-Armorer and Malcolm Holdip, ruled in the matter in which a former murder accused represented by former attorney general Anand Ramlogan, asked for a declaration that anyone charged with the capital offence should have the opportunity to apply for bail.
Akili Charles had filed the motion after High Court judge, Justice Joan Charles dismissed his constitutional claim. 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.
Justice Charles had refused to declare section five of the Bail Act, which makes murder a non-bailable offence, noting that 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. But in her decision, Justice 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 noted that judges of the High Court, in the past, did not grant bail for murder, either at common law or by statute.
But the Appeal Court 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 and that the particular section was unconstitutional as its effect removed the jurisdiction of judges to grant bail for murder.
Justice 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.
He said the court had the jurisdiction to do so and that 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.
Justice Archie 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,” Justice Archie said, acknowledging it was not a justification and 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.
Senior Counsel Fyard Hosein, who represented the state, 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.
But the Court invited submissions on the stay/suspension which will be heard on March 3, with Ramlogan indicating that he will not object to the granting of leave to apply to the Privy Council.
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, adding “I am not looking for dark clouds bursting down but want to deal with the practicability of the issue”.
But Ramlogan said the ruling did not translate to an avalanche of successful bail applications, adding 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,” he said.
Senior Counsel Douglas Mendes, who represented the Law Association during the proceedings at both the High Court and the Appeal Court, welcomed the ruling saying “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 10 years…But don’t worry you will get a fair trial. The system is eroding.”
