Privy Council to rule on T&T law blocking bail for persons accused of murder

The United Kingdom Privy Council is to rule soon on the constitutionality of a law in Trinidad and Tobago that blocks bail for persons charged with murder, a decision that could have implications for the quest of the Holness administration to enact similar provisions here. 

The Privy Council is Jamaica's final appellate court. 

A debate has renewed in Jamaica after Minister of Legal and Constitutional Affairs Marlene Malahoo Forte warned of the impending changes, which critics believe threaten persons' constitutional right to bail. 

Last week, the Privy Council reserved its ruling in a case from the Trinidad and Tobago Court of Appeal which would pave the way for persons charged with murder to apply for bail.

Section 5(1) of Trinidad's Bail Act of 1994 prohibits bail for persons charged with murder and certain other offences. 

The case stems from a matter involving Akili Charles, who was charged with murder in December 2010 and released in 2019 after the case was dismissed. 

In 2020, Charles brought a constitutional motion for a declaration that section 5(1) of the Bail Act was unconstitutional.

A High Court judge dismissed the motion in 2021, ruling that the law was saved from challenge as an "existing law" by section 6 of the Constitution because it re-enacted the position in force when the Constitution came into effect in 1976. 

Charles appealed the decision and in February, the Court of Appeal sided with him. 

The court declared that the Bail Act was unconstitutional, arguing that it was not an existing law could benefit from savings law provisions in the Constitution.

The appellate court also ruled that section 5(1) of the Bail Act was unconstitutional and was not reasonably justified in a society that is concerned about the rights and freedoms of the individual.

Following that ruling,  Joel King, who was in custody for eight years awaiting trial, became the first murder accused to be granted bail in decades. 

Trinidad and Tobago through its Attorney General appealed the Court of Appeal's decision to the Privy Council.

The British judges heard the case on June 8 and 9.

Government lawyers argued that when Trinidad's Parliament enacted the Bail Act it did so out of a level of mistrust in the judiciary on the question of bail. 

They said crime levels were high and it was found that people on bail were committing criminal acts, although not for murder because it was not the practice of the courts to grant bail for the capital offence, the Newsday, a Trinidad daily, has reported. 

It was further argued by the lawyers for the Sate that they were not alleging that the Judiciary could not be trusted but at the time the aim of the legislation was one of public safety.

Lawyers arguing for the ex- murder accused who challenged the Act, said section 5 of the Bail Act was arbitrary and eroded core rights of citizens under the Constitution.

They also claimed that bail cannot be used as a crime-fighting tool but instead the police should be adequately equipped. 

Reference was made to prison conditions and lengthy pre-trial detentions. The lawyers also contended that bail should be left to the Judiciary because the Judiciary was the protector of the Constitution and the legislature could not be given the carte blanche power to take away fundamental rights.

In Jamaica, the Opposition People's National Party and the Cornwall Bar Association have been some of the early voices warning the Andrew Holness administration against restricting the discretion of judges in granting bail. The police have been pushing for the changes. 

"If you on murder charge you cannot be at large, and if you on gun charge you cannot be at large," Malahoo Forte said in the House of Representatives, adding that the proposed law will be tabled soon. 

Leonard Green, a senior attorney-at-law here, described the suggestion as an attempt to prejudge issues. "It is moving along the pathway that persons are presumed to be guilty even before a bail application is made or even before a trial has commenced," he pointed out.

"It is against the basic principle that a  person is presumed innocent until the contrary is proved,” he said.

-Barbara Gayle

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