Privy Council ruling on T&T’s bail case could pose a challenge for Jamaica

The Jamaican government could face a challenge to any amendments to prohibit bail for accused persons, based on a Privy Council ruling today in a case from Trinidad and Tobago.

The UK-based Privy Council is the final appellate court for Jamaica and Trinidad and Tobago. 

The court agreed with T&T's Court of Appeal that a 1994 Bail Act that imposed a general block on bail for persons accused of murder and certain other crimes was unconstitutional. 

"A blanket prohibition of bail infringes a number of the rights and freedoms...," the judges wrote. 

They added: "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."

The appeal was brought by the T&T's Attorney General, which sought to overturn a Court of Appeal ruling.

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

The Court of Appeal had ruled in February that the bail provision was not an existing law and that it was not reasonably justifiable under the Constitution. 

In dismissing the appeal, the Privy Council said it accepted that the Attorney General's submission that the main public policy concerns behind the Bail Act were the reduction of the incidence of violent crime, minimising the risk to public safety posed by repeat offenders and a concern about courts being too willing to grant bail to people who committed further crimes.

In relation to the bail provision, there was also the need to ensure that they do not interfere with witnesses or otherwise obstruct the course of justice.

The Privy Council said those objectives "are sufficiently important to justify the limitation of a fundamental right and in particular the right to liberty”.

However, the Privy Council said the current provision against bail was too arbitrary.

"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," the judges said.

The judges said "preventing differential treatment in cases with different circumstances involves what has been described as a “standardless sweep”. 

The Privy Council said it gave careful consideration to the strong public interest in the objectives of the bail provision and the great weight to be given to the judgment of Parliament.

“Bearing in mind that less intrusive measures could have been used, 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 severe consequences of the imposition of a blanket prohibition of bail and that a fair balance has not been struck.'

The case stemmed from a murder charge against a Trinidadian man, Akili Charles, who was in custody from December 2010 until he was released in 2019.

A debate has been 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.

"If you're on murder charge you cannot be at large, and if you're on gun charge you cannot be at large," Malahoo Forte said in the House of Representatives during her Sectoral Debate presentation in June. 

- Barbara Gayle.

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