Attorney General v Bradley Ferguson et al.dh · BRADLEY FERGUSON KERMIT EVANS STEPHEN STUBBS KENTON...
Transcript of Attorney General v Bradley Ferguson et al.dh · BRADLEY FERGUSON KERMIT EVANS STEPHEN STUBBS KENTON...
COMMONWEALTH OF THE BAHAMAS IN THE COURT OF APPEAL
SCCr. Bail Application Nos. 57, 106, 108 and 116 of 2008
THE ATTORNEY GENERAL
Appellant V
BRADLEY FERGUSON KERMIT EVANS
STEPHEN STUBBS KENTON DEON KNOWLES
Respondents
Before: The Rt. Hon. Dame Sawyer, P The Hon. Mr. Justice Osadebay, JA The Hon. Mr. Justice Longley, JA Appearances: Mr. Garvin Gaskin and Mr. Neil Brathwaite for
the Appellant Mr. Ducille and Ms. T’Shura Ambrose for the Respondents Dates: 7, 9 October; 4 November; 29 December, 2008 21 May, 2009
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J U D G M E N T
1. These four appeals by the Attorney General against the grant of
bail by Steven Isaacs, J, and Lockhart, Actg. J., (hereafter referred to
respectively as “the judge”) were heard together as they raise similar
issues of law for consideration even though their factual backgrounds
differ.
2. I have read the judgments of the Honourable Mr. Justice
Osadebay and the Honourable Mr. Justice Longley. I agree with
Justice Osadebay’s decision that the appeals of the Attorney General
ought to be allowed.
3. However, as these cases are the first of their kind to be
considered by this court, and since we are required to deal with the
constitutionality of legislation, I think I ought to give my reasons for
holding that subsection 4(2) of the Bail Act (Ch. 103) (“the Bail Act”) is
unconstitutional and for allowing the Attorney General’s appeal.
4. The factual background to these appeals put succinctly, is this:
Bradley Ferguson, Stephen Stubbs and Kenton Deon Knowles, were
each charged with murder. Bradley Ferguson has been tried twice on
the same murder charge and is awaiting a third trial for the same
offence while Stephen Stubbs and Kenton Deon Knowles have not
even had a preliminary inquiry by a magisterial court to see whether
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there is sufficient evidence for either of them to be committed to the
Supreme Court for trial. Kermit Evans is charged with armed robbery
and he has not yet been tried on that charge.
5. While I was writing this judgment, I learned that Stephen Stubbs
was discharged by the learned magistrate at the end of the
prosecution’s case in the preliminary inquiry into the murder charge
against him so that anything said in this judgment cannot now affect
the grant of bail to him.
6. With regard to the remaining appeals, I gratefully adopt the
summaries of the facts in those appeals as set out in Justice
Osadebay’s judgment.
7. The main issue that arises in these appeals in my view is
whether subsection 4 (2) of the Bail Act is valid under the
Constitution; in other words whether the Parliament of The Bahamas
has power to enact legislation which has the purported effect of
denying bail to persons arrested and detained on reasonable
suspicion of having committed serious offences, no matter what the
circumstances of the alleged offence are, or how long a person is
detained by the Prison Authorities or the Police, without trial. I shall
deal with that aspect of the matter later in this judgment.
8. First, I wish to deal with Mr. Ducille’s submission that section
8A of the Bail Act is in conflict with the constitutional doctrine of the
separation of powers because it provides that where a judge grants
or refuses bail and the accused person or the prosecution appeals to
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this Court within two days against that grant or refusal, then the
decision of the judge is stayed pending the hearing and determination
of such appeal.
9. Subsections 8 (1), (3), and (4) of the Bail Act provide:
“(1) Where a Magistrate’s Court grants or refuses bail in criminal proceedings or imposes conditions in granting bail in criminal proceedings, the Supreme Court may, on application by an accused person or the police, grant or refuse bail or vary the conditions…
(3) Where the Supreme Court grants an accused person bail under subsection (1), the Court may direct that person to appear at a time and place which the Magistrate’s Court could have directed and the recognizance of any surety shall be conditioned
accordingly.
(4) Where the Supreme Court refuses an accused person bail under subsection (1) and the accused person is not then in custody, the Court shall issue a warrant for the arrest of the accused person, who shall be brought before a Magistrate’s Court and shall be remanded in custody.
10. As amended by Act No. 23 of 2007, section 8A of the Bail Act
provides:
“8A. (1) Where the Supreme Court grants or refuses a person bail, or refuses to
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revoke bail, the prosecution or the person, as the case may be, shall have a right of appeal to the Court of Appeal.
(2) An appeal shall be filed within two days of the making of the decision, the subject matter of the appeal, and pending the hearing of an appeal against an order admitting a person to bail that order shall be suspended”. (Emphasis added)
11. In light of the short time frame permitted by the section for
appealing and in light of the mischief the section was enacted to
remedy, as well as the history of similar legislative provisions both
pre- and post- the Constitution, I have come to the conclusion that
there is no merit in Mr. Ducille’s submission since the stay does not
prevent the Supreme Court from exercising its jurisdiction if no
appeal is filed or, if filed, this court from exercising its jurisdiction, if
the appeal is not pursued timeously. In my judgment, all the words
complained of do, in the context of the grant or refusal of bail, is to
maintain the position of the parties as it was before the Supreme
Court’s decision until at least this court has had an opportunity to
hear such an appeal as to whether the judge who granted or refused
bail was correct in law and on the facts to do so. Otherwise the right
of appeal conferred by the subsection would be rendered nugatory.
Indeed, before the addition of section 8A to the Bail Act in 2007, there
was no right of appeal from the grant or refusal of bail by a judge of
the Supreme Court – see Austin Knowles’s case cited below. A
person who unsuccessfully applied to the Supreme Court for bail
would have had to wait for a “change of circumstances” before
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reapplying for bail to that Court. Now, instead of having to wait for a
change of circumstances before re-applying for bail to the same or
another judge of the Supreme Court, a person who is refused bail can
now immediately appeal to this Court against that refusal; in some
ways that may be an advantage to a person who is being detained for
an unduly long period awaiting either trial or a preliminary inquiry.
12. It cannot be over-emphasised that it is the prosecution who has
the duty to bring accused persons to trial as soon as reasonably
possible, and that it is necessarily part of their duty to exercise due
diligence so that persons arrested and detained on reasonable
suspicion of having committed any arrestable criminal offence are not
kept in custody ad infinitum awaiting trial, or proceedings preliminary
to trial.
13. In my view, section 8A is valid because it gives an accused
person a right of appeal to this court against the refusal of bail by a
judge of the Supreme Court: it follows then that it cannot be invalid
because it gives a similar right to the prosecution to appeal to this
court against the grant of bail – see, for example Article 28(4) of the
Constitution which provides:
“(4) No law shall make provision with respect to rights of appeal from any determination of the Supreme Court in pursuance of this Article that is less favourable to any party thereto than the rights of appeal from determinations of the Supreme Court that are accorded generally to parties to civil proceedings in that court sitting as a court of original jurisdiction.”
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14. For completeness, I think I should point out that there are
similar provisions in subsection 235(1) of the CPC that pre-date both
section 8A of the Bail Act and the Constitution as well as section 40
of the Legal Profession Act (Ch. 64) which is post the Constitution.
Subsection 235(1) of the CPC, so far as it is material, reads:
“235. (1) An appeal shall have the effect of suspending the execution of the decision appealed against until the appeal shall have been determined, and shall be on motion or by case stated as hereafter in this Code provided:”
15. In cases falling within that subsection over the years, both the
prosecution and the defence have appealed to the Supreme Court
and, since 19 December 1996, to this court, in specified types of
cases and the effect of the suspension of the lower court’s order was
usually that the convicted person was put on bail pending his appeal.
16. In the case of section 8A of the Bail Act, both the prosecution
and an accused person have the right of appeal to this court so the
legislation does not favour the prosecution over the accused and it
appears to apply to all cases coming within its ambit and is not, in my
judgment, legislation aimed at a particular individual or class of
individuals – see, for example, the decision of the Privy Council in
Kariapper v Wijesinha [1968] AC 717 at page 735.
17. I turn now to consider the issue of the constitutional validity of
subsection 4 (2) of the Bail Act which is the main issue in this appeal.
In order for that issue to be clearly understood, I begin the
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consideration of that issue by examining the history of bail in The
Bahamas.
The History of Bail in The Bahamas: The Common Law Regime:
18. Before 1994, by the common law of England which applied to
The Bahamas, judges of the Supreme Court, as the Bahamian
equivalent to the Court of Queen’s Bench, had the power, in their
discretion, to grant bail to persons arrested and charged with even
the most serious criminal offences: that was because by section 2 of
the Declaratory Act (Ch. 4): “The common law of England, in all cases where the same hath not been altered by any of the Acts or Statutes enumerated in the Schedule to this Act or by any Act (except so much thereof as had relation to the ancient feudal tenures, to outlawries in civil suits, to the wager of law or of batail, appeals of felony, writs of attaint and ecclesiastical matters), is, and of right ought to be, in full force within The Bahamas, as the same now is in that part of Great Britain called England.” (Emphasis mine).
19. The Court of Appeal, Stipendiary and Circuit Magistrates’
Courts and lay magistrates in some circumstances, as well as certain
designated law enforcement officers, also had, and still have, power,
by statute, to grant bail in specified cases.
20. On its face, section 2 of the Declaratory Act puts it beyond
peradventure that as a general rule, the common law of England
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applies in The Bahamas except where it has been, or may be,
changed by express statutory provision. At first glance, therefore, it
appears possible for Parliament, by express statutory provision, to
abrogate a common law discretionary power or jurisdiction, provided
it does not, in so doing, contravene any of the entrenched provisions
of the Constitution, such as those protected by Articles 16 to 27 of the
Constitution.
21. At common law, as the Supreme Court of The Bahamas had,
and still has, all the jurisdiction and powers of the Court of Queen’s
Bench in England, it also had power, in exercise of its judicial
discretion, to grant bail even in murder and treason cases – see, for
example, the judgment of Lord Russell, CJ in R v Spilsbury [1898] 2
QB 615, at page 620 of the report, where his Lordship said:
“…This Court has, independently of statute, by the common law, jurisdiction to admit to bail. Therefore the case ought to be looked at in this way: does the Act of Parliament either expressly or by necessary implication, deprive the Court of that power? The law relating to this subject is well stated in 1 Chitty’s Criminal Law, 2nd ed. p. 97, as follows: ‘The Court of Kings Bench, or any judge thereof in vacation, not being restrained or affected by the statute 3 Edw, 1, c. 15(1) in the plenitude of that power which they enjoy at common law, may, in their discretion, admit persons to bail in all cases whatsoever, though com- mitted by justices of the peace or others, for crimes in which inferior jurisdictions would not venture to interfere, and the only exception to their discretionary authority is,
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where the commitment is for a contempt, or in execution. Thus they may bail for high treason, murder, manslaughter, forgery, rapes, horse-stealing, libels, and for all felonies and offences whatsoever.’ ” (Emphasis mine)
22. It must be noted however, that the common law discretionary
power to admit persons to bail in cases of murder was seldom
exercised; this, no doubt, was because of the matters which the
judges of the Court of Queen’s Bench in England (and the Supreme
Court in The Bahamas) were required by precedent to take into
account when considering whether or not to grant bail. It is sufficient
at this stage to mention two of the dueling cases to demonstrate the
position of the Court with regard to applications for bail on a charge of
murder.
23. The first is In re Barronet and Allain 1 El and Bl 2, 118 ER 338
where Coleridge J, said:
“…I do not think that an accused party is detained in custody because of his guilt, but because there are sufficient probable grounds for the charge against him, so as to make it proper that he should be tried, and because the detention is necessary to insure his appearance at the trial. This Court has at all times an unlimited discretion to admit to bail; and since stat. 5 & 6 W. 4, c. 33, s. 3, two justices of the peace, one of whom shall have signed the warrant of commitment, have power to admit to bail persons charged with felony, ‘notwithstanding such persons shall have
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confessed to the matter laid to his or their charge, or notwithstanding such justices shall not think that such charge is groundless, or shall think that the circumstances are such as to raise a presumption of guilt’. That enactment shows clearly that, in the opinion of the Legislature, the guilt of the party charged is not the direct ground on which he is detained in custody; and that the strength of the evidence of guilt, even when it amounts to a confession, is not conclusive as to the propriety of bailing. But it is a very important element in considering whether the party, if admitted to bail, would appear to take his trial; and I think that, in coming to a determination on that point, three elements will generally be found the most important; the charge, the nature of the evidence by which it is supported, and the punishment to which the party would be liable if convicted…” (Emphasis supplied)
24. The second is In re Barthelemy, 1 El & Bl 8, 118 ER 340; at
page 340-341, Lord Campbell, CJ in delivering the judgment of the
court said:
“We have carefully looked over the depositions in this case; and we are of opinion that we should not be justified in interfering. It appears that the prisoners are committed on an inquisition, good on the face of it, finding them guilty of wilful murder: and, on looking at the depositions, it appears clear that there was a murder committed in a duel; and we think that there is evidence the prisoners were parties to the
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murder. We give no opinion as to whether that evidence is conclusive; but we think that it is sufficient to authorize the sending them to trial. It is unnecessary to consider what course we should pursue if the evidence were insufficient; for we are of opinion that it is sufficient; and we could not bail these prisoners without making a distinction between murder committed in a duel and any other murder, which would be contrary to all principle. Time was when the public feeling on this subject was contrary to the law; and I hope that the time is fast approaching when the custom of dueling will not only be, as it always was, wicked and illegal, but also be considered absurd…” (Emphasis mine)
In my view, the protagonists in duels were usually equally armed, and
they each had the right to defend himself when the other raised his
weapon so that in modern times the person who killed in a duel may
have been able to plead self-defence or provocation, the first being a
complete answer to a charge of murder, among others and the other
giving rise to a reduced penalty.
25. In its 1984 report on the use of The Bahamas by international
and local traffickers to facilitate the transshipment of dangerous drugs
between the main drug producing countries in the Caribbean and
South America and the United States of America, the Royal
Commission of Inquiry, after considering the effect of the apparently
too easy grant of bail to persons accused of drug trafficking with no
real or substantial connection to The Bahamas, which resulted in
such persons absconding after being granted bail in huge sums of
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money; and after examining the Bail Acts of the United Kingdom and
Queensland, Australia, the Commission recommended that similar
legislation be enacted to guide the exercise of judicial discretion when
deciding whether to grant or refuse bail in drug trafficking cases.
That recommendation was not followed at that time.
26. In 1994, in apparent response to continued public complaints
about the perceived routine grant of bail to persons charged with, and
convicted of, among others, serious drug trafficking offences, the
Parliament of The Bahamas enacted the Bail Act, 1994, (No. 20 of
1994) which entered into force on 22 September, 1994.
27. As originally drafted, the Bail Act accepted that there was a
“right” to bail (section 3 (1)) in some cases and it set out in express
terms those common law principles that were to be taken into
consideration by a court when deciding whether or not to refuse bail.
28 Also at common law, bail might be granted because the
presumption of innocence outweighed the “probable cause” of the
evidence in the case and because the circumstances were
considered “exceptional” by the judge – see, for example, the cases
cited in the argument of Mr. Huddleston, counsel for the applicant in
support of the application for bail in Barthelemy’s case, at page 340,
especially Rex v Morgan (1 Bulst. 84) and the Earl of Cardigan’s
case. See also the dicta of the Privy Council in Austin Knowles and
others v the Superintendent of Prisons (Privy Council Appeal No. 45
of 2004) at paragraph 27, where Lord Slynn, in delivering the
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judgment of the Privy Council, after setting out the arguments of
counsel for the United States Government, said:
“27. The Board considers that there is much force in these criticisms and the learned judge did not appear to give sufficient weight either to the nature of the crimes alleged or to the risk and advantage of, their fleeing. It is important that in this particular type of case these considerations should be taken fully into account and it should only be in exceptional cases that bail as a matter of discretion is granted…” (Emphasis added)
29. At common law, it was considered undesirable to grant bail in
cases other than murder and treason where, from the history of the
applicant, there was a likelihood of the offence being repeated where,
for example, a person had been previously convicted for
housebreaking or similar offences which could be committed if he is
released on bail – see R v Phillips, 32 Cr App R 47; or where the
defendant had a bad criminal record – see H. M. Postmaster-General
v Whitehouse, 35 Cr App R 8.
30. On the other hand, “refusal or delay by any judge or magistrate
to bail any person bailable is, at common law, an offence against the
liberty of the subject – 4 Blackstone’s Commentaries, 297. It is also
a violation of the Habeas Corpus Act, 1679 (Ch.63) and of the Bill of
Rights 1688. But the duty of a magistrate in admitting a defendant to
bail is judicial, and not merely ministerial, and therefore an action will
not lie against him without proof of malice for refusing to admit to bail
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a person charged with an offence, and entitled to be admitted to bail
– R v Badger (1843) 4 QB 468; Linford v Fitzroy (1849) 13 QB 240.
A justice [of the peace(?)] who admits a defendant to bail on
insufficient sureties is responsible if the defendant does not appear”
(38th Edition of Archbold’s Pleading, Evidence and Practice in
Criminal Cases, paragraph 292, page 87).
The Statutory Regime:
31. The Criminal Procedure Code Act (Ch. 91) (“CPC”) which was
passed by the Legislature in 1968, entered into force on 2nd April,
1969. Section 69 of the CPC was apparently intended to flesh out the
constitutional guarantee against arbitrary arrest and detention
contained in the 1963 Constitution; that section provided -
“69. – (1) Where any person, other than a person accused of murder or treason, appears or is brought before a court, or when committed for trial by any such court, and is prepared at any time or at any stage in the proceedings before such court to give bail, such person may be admitted to bail with or without a surety or sureties.
(2) The amount of bail in any case to
which the provisions of subsection (1) of this section apply shall not be excessive, and any court may accept a deposit of cash
in lieu of any security.
(3) Notwithstanding any other provisions of this section, the Supreme Court may in any case and at any stage thereof direct that any person be admitted
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to bail or that bail required by a magistrate’s court or by a coroner be reduced.” (Emphasis added)
32. From the very words of the section two important principles are
evident: first, except for the offences of murder and treason - both of
which were said to carry a mandatory sentence of death - all other
criminal offences were bailable by a magistrate’s court; second, the
common law jurisdiction of the Supreme Court remained intact so that
that Court could grant bail even in murder and treason cases,
particularly where an accused person was not tried within two
sessions of the Supreme Court – that period used to amount to six
months prior to the entry into force of the new Supreme Court Act
(Ch. 53) which came into force on 1 January, 1997 - or where there
were exceptional circumstances.
33. Section 69 of the CPC was repealed by section 15 and item
one in the Third Schedule to the Bail Act, 1994, with effect from 20
September, 1994.
34. The Long Title to the Bail Act reads:
“An Act to consolidate the law relating to the release from custody of accused persons in criminal proceedings and for other matters connected thereto.”
35. From the long title, as well as the provisions of the Bail Act as it
was in 1994, I infer that the purpose of the Bail Act was to
consolidate, without change, the law on bail; in other words, that
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there was a presumption in favour of the grant of bail. The Bail Act
also expressed, in statutory language, the common law principles
which governed the exercise of discretion by a court on an application
for bail by a person charged with, or convicted of, a criminal offence
and, as noted earlier, section 3 of the Bail Act expressly provided that
there was a right to the grant of bail in certain cases.
36. Section 4 of the Bail Act as it then was, provided:
4. Notwithstanding section 3 or any other enactment, any person charged with an offence mentioned in Part B of the First Schedule shall not be granted bail unless the court is satisfied that the person charged cannot be brought to trial within a reasonable time.” (Emphasis mine)
37. Murder, armed robbery and trafficking in dangerous drugs were
among the offences for which bail was not to be granted under that
section and the First Schedule unless the person so charged could
not be tried within a reasonable time. I bear in mind that the phrase
“a reasonable time” for the purposes of Article 20(1) of the
Constitution was held by Gonsalves-Sabola, CJ, to be two years at
the most – Stevenson Kelvin Hanna and others v the Attorney
General (Nos. 430 and 560 of 1989) delivered on 22 December,
1989; that decision was not appealed and, as presently advised, I
agree with it.
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38. Section 4 of the Bail Act was considered by three different
judges in the Supreme Court during 1995. Each of those judges
upheld the constitutionality of that section as it then read.
39. The first of those decisions in date order, was made by Hall, J
(as he then was) in his ruling in Commissioner of Police v Benjamin
Beneby and Lemuel Maycock and others, (Unreported) delivered on
16 February, 1995. Hall, J held that the provision of the Bail Act which
stated that bail should not be granted to persons charged with,
among other things, trafficking in dangerous drugs, was mandatory in
so far as it affected the exercise of the power to grant bail given to
magistrates’ courts but directory only insofar as it affected the
exercise by the Supreme Court of its inherent power to grant bail –
see also the Law Quarterly Review, Volume 113, page 127, note 61,
by M. S. Dockray, Professor of Law, the City University, London.
40. The second decision was one by me in Beneby v Commissioner
of Police (No. 28 of 1995), in a judgment delivered on 15 May, 1995
(Unreported). In that case, I came to the conclusion that section 4 as
it was then worded was not in conflict with the Constitution. In the
course of giving that judgment, I also pointed out that while
Parliament by legislation may set general standards – for example,
the criteria which are to be taken into consideration by a court when
deciding whether to grant or refuse bail – if by such legislation
Parliament sought to mandate how a court is to deal with particular
accused persons, that would be an impermissible use of the
legislative power as it would amount to legislating “ad hominem” –
Liyanage and others v Regina [1966] 1 All ER 650. I also pointed
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out that the grant or refusal of bail is a judicial function and for
Parliament to seek to exercise that function in any particular case
would also be an impermissible exercise of the legislative function –
see Hinds v The Queen [1977] AC195 at page 213 where Lord
Diplock, in giving the judgment of the Privy Council said:
“…What, however, is implicit in the very structure of a Constitution on the Westminster model is that judicial power, however it be distributed from time to time between various courts, is to continue to be vested in persons appointed to hold judicial office in the manner and on the terms laid down in the Chapter dealing with the judicature, even though this is not expressly stated in the Constitution: Liyanage v The Queen [1967] 1 AC 259, 287-288.
The more recent constitutions on the Westminster model, unlike their earlier prototypes, include a Chapter dealing with fundamental rights and freedoms. The provisions of this Chapter form part of the substantive law of the state and until amended by whatever special procedure is laid down in the Constitution for this purpose, impose a fetter upon the exercise by the legislature, the executive and the judiciary of the plenitude of their respective powers…Thus, where a constitution on the Westminster model speaks of a particular ‘court’ already in existence when the Constitution comes into force it uses this expression as a collective description of all those individual judges who, whether sitting alone or with other judges or with a jury, are entitled to exercise the jurisdiction
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exercised by that court before the Constitution came into force...” (Emphasis supplied)
41. In Kariapper v Wijesinha [1968] AC 717, Sir Douglas Menzies,
in giving the judgment of the Privy Council on the constitutional
validity of a statute passed by the Parliament of Ceylon, and after
reciting the arguments of counsel for the appellant who sought to
impugn the validity of that statute; at page 733, his Lordship referred
to the following observation made in the judgment of the Board in
Liyanage v The Queen [1967] 1 AC 259 at 291 -
“One might fairly apply to these Acts the words of Chase J., in the Supreme Court of the United States in Calder v Bull: ‘These acts were legislative judgments; and an exercise of judicial power.’ Blackstone in his Commentaries said: ‘Therefore a particular act of the legislature to confiscate the goods of Titius, or to attaint him of high treason, does not enter into the idea of a municipal law; for the operation of this act is spent upon Titius only and has no relation to the community in general; it is rather a sentence than a law.’ If such Acts as these were valid the judicial power could be wholly absorbed by the legislature and taken out of the hands of the judges.”
At page 735, his lordship continued:
“In considering the argument that the Act is in truth a bill of attainder or a bill of pains and penalties their Lordships have, of course, been greatly assisted by the
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judgments of the justices of the Supreme Court to which their attention has been drawn and they have found particularly valuable guidance in the judgment of Frankfurter J. in United States v Lovett (1946) 328 US 303, notwithstanding that in the result that learned judge was one of the minority… In rejecting the contention that the Act there under consideration was a Bill of Attainder his honour said:
‘No offence is specified and no declaration of guilt is made. Not only does section 304 lack the essential declaration of guilt. It likewise lacks the imposition of punishment in the sense appropriate for bills of attainder… Punishment presupposes an offense, not necessarily an act previously declared criminal, but an act for which retribution is enacted. The fact that harm is inflicted by governmental authority does not make it punishment. Figuratively speaking all discomforting action may be deemed punishment because it deprives of what otherwise would be enjoyed. But there may be reasons other than punitive for such deprivation. A man may be forbidden to practice medicine because he has been convicted of a felony… or because he is no longer qualified…’ The deprivation of any rights, civil or political, previously enjoyed, may be punishment, the circumstances attending and the causes of the deprivation determining this fact”. Cummings v State of Missouri.’
42. The two elements found by Frankfurter J to be absent from the
law under consideration in United States v Lovett, I find to be present
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in section 4 (2) of the Bail Act. First, it lists specific criminal offences -
that is, murder, armed robbery, kidnapping and treason – secondly, it
states that any person charged with any of those offences “shall not
be granted bail”; by doing so, Parliament is thereby denying bail to
any person charged with any of those offences, so that it is the
legislature which determines that a person charged with such an
offence should not be granted bail rather than any judicial officer,
including the judges of the Supreme Court. A third element, which
was not mentioned by Frankfurther J but which arises in the case of
section 4(2) of the Bail Act, is that there is no provision in that section
for a judicial officer to even consider the evidence linking that person
to the commission of the offence and fourthly, the subsection now
makes no allowance for the grant of bail where the detention of a
person charged by the executive with such an offence extends
beyond a period that may be considered reasonable for the trial of the
charge against him thereby turning what is essentially pre-trial
detention into punishment, a decision of the executive and legislature
not the judiciary - for the offence charged, without conviction; this I
find to be contrary to the constitutional doctrine of the separation of
powers and the presumption of innocence.
43. The third decision was given by Osadebay J, (as he then was)
in Lockhart v Commissioner of Police (No. 118 of 1995)(Unreported).
In that case, after referring to the decisions by Justice Hall and me,
and quoting the passage at pages 179-180 of the decision of the
Privy Council in the Attorney General of The Gambia v Momodou
Jobe [1984] 3 WLR 174, Osadebay J, concluded that: “…so long as
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Parliament stays within the Constitution it may pass legislation limiting the grant of bail to persons reasonably suspected of having committed a criminal offence provided that such persons are brought to trial within a reasonable time after they have been arrested and detained…”.
44. There was no appeal from any of those decisions and there is
nothing before us to indicate why it was thought necessary to amend
the Bail Act in the manner in which it was amended by the Bail
(Amendment) Act, 1996 (No. 27 of 1996), (“the 1996 Act”) particularly
by sections 2 and 3 of the 1996 Act.
45. By section 2 of the 1996 Act, the word “shall” in section 3(1) of
the Bail Act was repealed and replaced by the word “may” and the
marginal note to that section was changed to read “Discretionary
grant of bail” instead of “the right to bail” as it was previously; insofar
as section 3 now provides for the exercise of discretion in the grant or
refusal of bail, there is no argument about the constitutionality of that
section so I say no more about it.
46. Section 4 of the Bail Act, as repealed and replaced by section 3
of the 1996 Act, now reads:
“4. (1) Notwithstanding any other enactment, where any person is charged with an offence mentioned in Part B of the First Schedule, the Court shall order that that person shall be detained in custody for the purpose of being dealt with according to law, unless the Court is of the opinion that his detention is not justified, in which case,
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the Court may make an order for the release, on bail, of that person and shall include in the record a statement giving the
reasons for the order of release on bail:
Provided that, where a person has been charged with an offence mentioned in Part B of the First Schedule after having been previously convicted of an offence mentioned in that Part, and his imprisonment on that conviction ceased within the last five years, then the Court shall order that that person shall be detained in custody.
(2) Notwithstanding any other
enactment –
(a) a person charged with an offence mentioned in Part C of the First Schedule; or
(b) a person who has been
convicted and sentenced to a term of imprisonment in respect of those offences mentioned in Part D of the First Schedule who gives notice of his intention to appeal in accordance with the Criminal Procedure Code Act, against such conviction, shall not be granted bail:
Provided that where there are
exceptional circumstances, a court may grant bail to a person referred to in paragraph (b)…” (Emphasis added)
25
47. While section 4(1) of the Bail Act contemplates the mandatory
detention of a person reasonably suspected of having committed or
of being about to commit an offence mentioned in Part B of the First
Schedule to the Bail Act, it does not completely prohibit the grant of
bail in such cases because it provides for the court to grant bail if the
court is of the view that the detention of such a person is “unjustified”.
There is no similar provision in section 4(2) of the Bail Act.
48. Murder and armed robbery are two of the offences mentioned in
Part C of the First Schedule to the Bail Act. Kidnapping, treason and
conspiracy to commit those offences are also listed there. In this
judgment I confine myself to the constitutionality or otherwise of the
prohibition of bail in murder and armed robbery.
49. A comparison of subsection 4 (2) of the Bail Act with, for
example subsections 8 (1) and (5) of that Act shows that Parliament
was well aware of the existence of the common law power of the
Supreme Court to grant or vary bail granted or refused by lower
courts or tribunals. Subsections 8 (1) and (5) read:
“(1) Where a Magistrate’s Court grants or refuses bail in criminal proceedings or imposes conditions in granting bail in criminal proceedings, the Supreme Court may, on application by an accused person or the police, grant or refuse bail oe vary the conditions.
(5) The powers of the Supreme Court
under this section are without prejudice to the jurisdiction vested in the Supreme Court under any other law.” (Emphasis added)
26
50. At this point, it is noted that the new subsection 4(2) read with
Part C of the First Schedule to the Bail Act, creates an absolute
prohibition against the grant of bail by any court where a person is
arrested and detained on reasonable suspicion of having committed
murder, armed robbery or any other offence mentioned in Part C of
the First Schedule, whether or not a court of competent jurisdiction
might be minded, in the exercise of its judicial discretion, to grant bail
to the particular individual, bearing in mind the circumstances of the
particular case and whether or not the person is tried, or likely to be
tried, within a reasonable time.
51. As indicated earlier, that was not the position under section 4 as
it was first drafted nor is it the position of the Supreme Court under
subsections 8(1) and (5) of the Bail Act. The latter subsections
recognize the existence of the discretion of Supreme Court judges to
grant bail in respect of Part B offences in the circumstances set out in
the subsections. If subsection 4(2) made similar provision in respect
of Part C offences, there would probably not be any ground for raising
any issue on the constitutionality of that subsection.
52. Subsection 4(2) is even less understandable when contrasted
with the proviso to that section which provides for the grant of bail to
a person convicted of a crime listed in Part B of the First Schedule to
the Bail Act, “where there are exceptional circumstances” but makes
no similar provision for granting bail to a person who is accused of
such crimes where the accused person has not been tried within a
reasonable time. That seems a strange provision because it appears
to allow a court to grant bail to a person convicted of, among other
27
offences, attempted murder and rape of a person under 14 years of
age but yet denies bail to a person who is accused of, but who has
not been tried nor convicted of murder, treason, or kidnapping among
other offences and in respect of whom the presumption of innocence
has not been displaced.
The Constitution:
53. Although Mr. Ducille had not raised the issue of the
constitutionality of subsection 4(2) of the Bail Act in the Supreme
Court, in the course of his submissions, Mr. Ducille raised the issue of
the constitutionality of that subsection in this court and, in accordance
with Article 28 (3) of the Constitution we heard his submissions.
54. It should be well known by now that since 7 January, 1964, The
Bahamas’ Constitution has contained provisions guaranteeing to
every person in The Bahamas, certain fundamental rights and
freedoms, among them, section 5 of the 1963 and 1969 Constitutions
(now Article 19 of the 1973 Constitution (“the Constitution”))
guaranteed protection from arbitrary arrest or detention. In addition,
Article 2 of the Constitution makes it plain that any statute or part of a
statute which is inconsistent with any provision of the Constitution is,
to the extent of the inconsistency, void - except where such a
provision is saved as an existing law under section 4 of the Order in
Council or an express saving provision in the Constitution itself.
55. As stated at paragraphs 56 to 60 inclusive, below, the
Parliament of The Bahamas has the power to enact laws for the
28
peace, order and good government of The Bahamas including
abrogating the common law discretion of the Supreme Court,
provided it stays within the Constitution.
56. The Powers and Procedure of Parliament are set out in Part IV
of the Constitution. Article 52, which is the first Article in that Part,
reads as follows:
“52. – (1) Subject to the provisions of this Constitution, Parliament may make laws for the peace, order and good government of The Bahamas.
(2) Subject to the provisions of
Articles 60, 61, and 62 of this Constitution, the power of Parliament to make Laws shall be exercised by Bills passed by both Houses, either with or without amendment or with such amendments only as are agreed to by both Houses, and assented to by the Governor-General in accordance with Article 63 of this Constitution.” (Emphasis supplied)
57. In light of the presumption of regularity, and the increase in the
commission of serious criminal offences in The Bahamas in the
decade leading up to the enactment of the Bail Act and the
amendments in 1996, a court should approach the issue of the
validity of the Bail Act - like any other legislation enacted by
Parliament - firstly, as being done in the exercise of its legislative
powers; secondly, Parliament must be taken to have intended to
enact the Bail Act and the 1996 amendments to it in accordance with
29
its Constitutional mandate to make laws for the “peace, order and
good government” of The Bahamas and thirdly, the Bail Act was
intended to be in conformity with the entrenched fundamental rights
provisions contained in Chapter III of the Constitution.
58. In order to displace the presumption of regularity which is to be
accorded to Acts of Parliament, a person who claims that Parliament
has exceeded its powers in enacting any statute or part of a statute,
must show that that is in fact so “beyond a reasonable doubt”.
59. In Attorney-General and Another v Antigua Times Ltd [1976]
AC 16 at page 32 D-E Lord Fraser of Tullybelton, in delivering the
judgment of the Privy Council said:
“In some cases it may be possible for a court to decide from a mere perusal of an Act whether it was or was not reasonably required. In other cases the Act will not provide the answer to that question. In such cases has evidence to be brought before the court of the reasons for the Act and to show that it was reasonably required? Their Lordships think that the proper approach to the question is to presume, until the contrary appears or is shown, that all Acts passed by the Parliament of Antigua were reasonably required. This presumption will be rebutted if the statutory provisions in question are, to use the words of Louisy J ‘so arbitrary as to compel the conclusion that it does not involve an exertion of the [taxing] power but constitutes in substance and effect, the direct execution of a different and forbidden power...’ ”
30
60. In this case, Mr. Ducille’s submission, is that subsection 4(2) of
the Bail Act is so arbitrary as to compel the conclusion that it does not
involve the exertion of a legislative power but constitutes in substance
and effect the direct execution by the legislature of the judicial power.
I think there is merit in that submission for the reasons already given
at paragraph 42 above as well as the following paragraphs.
61. Article 19 (1) (c) and (d) of the Constitution read:
“19. – (1) No person shall be deprived of his personal liberty save as may be authorized by law in any of the following cases -
…(c) for the purpose of bringing
him before a court in execution of the order of a court;
(d) upon reasonable suspicion of
his having committed or of being about to commit, a criminal offence;…
(2) Any person who is arrested or
detained in such a case as is mentioned in sub-paragraph (1) (c) or (d) of this Article and who is not released shall be brought without delay before a court; and if any person arrested or detained in such a case as is mentioned in the said sub-paragraph (1)(d) is not tried within a reasonable time he shall (without prejudice to any further proceedings that may be brought against him) be released either conditionally or upon reasonable conditions, including in in particular such conditions as are reasonably necessary to ensure that he appears at a later date for trial or for
31
proceedings preliminary to trial.” (Emphasis added)
62. In Momodou Jobe’s case, cited above, Lord Diplock, in
delivering the judgment of the Privy Council set out the relevant parts
of section 15 of the Constitution of The Gambia which is in pari
materia with Article 19(3) of the Constitution quoted above. Having
done so, his Lordship, bearing in mind the specific provisions of
section 7 of the Special Criminal Court Act of The Gambia which
expressly provided for the speedy trial of cases of corruption by
public officials, concluded, at page 179H – 180A as follows:
“There is thus nothing in the Constitution which invalidates a law imposing a total prohibition on the release on bail of a person reasonably suspected of having committed a criminal offence, provided that he is brought to trial within a reasonable time after he has been arrested and detained. Section 7(1) of the Act which prohibits release on bail, not totally but subject to an exception if the magistrate is satisfied that there are special circum-stances warranting the grant of bail, cannot in their Lordships’ view be said to be in conflict with any provision of the Constitution.” (Emphasis supplied)
63. It is clearly not the situation in The Bahamas at this time that
criminal cases are tried as speedily as they ought to be for reasons
which need not be gone into in this judgment. For that reason,
among others, where a statutory provision like subsection 4(2) of the
32
Bail Act purports to impose a total prohibition on the grant of bail to
persons charged with any of the offences listed in Part C of the First
Schedule, whether the applicant for bail is tried within a reasonable
time or not and whether or not there is sufficient evidence before the
court to enable the person to be committed to the Supreme Court for
trial would seem to be contrary to the spirit and words of Article 19(1)
and (3) of the Constitution.
64. In this regard, I have read and considered a number of decisions
from other countries in the Commonwealth on the construction of
their respective constitutional provisions which are in pari materia
with Article 19(3) of the Constitution but in the interests of time have
selected the following as of particular interest in regard to the issue
before this court in these appeals, since to include them all, would
make this judgment unduly long.
65. In Ngui v Republic of Kenya [1986] LRC (Const.) 308, the High
Court of Kenya, ruled that section 123(3) of Kenya’s Criminal
Procedure Code was unconstitutional because in cases of alleged
murder, treason and robbery or attempted robbery with violence, the
High Court’s discretion to grant bail if the circumstances warranted
such grant was taken away. That subsection of the Kenyan statute
read:
“The High Court may, save where a person is accused of murder, treason, robbery with violence or attempted robbery with violence direct that a person be admitted to bail or that bail required by a
33
subordinate court or police officer be reduced.”
66. At first glance the use of the word “may” in that section may be
taken to mean that the High Court of Kenya may have had a
discretion to grant bail in all cases except murder, treason and
robbery, or attempted robbery with violence. The High Court
nevertheless held that since the section purported to take away the
inherent jurisdiction of the High Court to grant bail in murder, treason
or robbery with violence cases, the provision was unconstitutional
and struck it down. That Court nevertheless refused bail on the facts
of the case, including the fact that conviction of robbery with violence
carried a mandatory sentence of death. At page 311, Simpson, CJ,
in giving the judgment of the High Court of Kenya said:
“We wish to add, however, that following the practice in Kenya prior to 10 November, 1978, and subject to the provisions of section 72(5) of the Constitution, bail as a general rule should not be granted where the offence charged carries a mandatory death penalty, so great is the temptation to abscond or ‘jump bail’ in such cases. This is the practice also in England in cases of murder although the death penalty has been abolished.
The applicant has applied to this Court
under section 84(1) for redress. We have no doubt therefore that we have jurisdiction to consider the question of bail on its merits. We have considered the age and health of the applicant. She suffers from ulcers and high blood pressure. For these
34
complaints she can be treated in prison or if necessary transferred to hospital under the usual safeguards. We see no sufficient justification for disregarding the general rule in considering applications for bail in offences carrying a mandatory death penalty and exposing the applicant to the temptation to ‘jump bail’. The application for bail is refused.
We feel strongly however that in all
such cases lengthy adjournments should be avoided and that the trial should continue from day to day until completed. Undue consideration should not be given to the convenience of advocates when the accused is facing possible death penalty.”
67. In Noordally v Attorney General and Another [1987] LRC
(Const) 599, the Supreme Court of Mauritius held that section 46(2)
of the Dangerous Drugs Act 1986 of that country which prohibited the
grant of bail to persons arrested on reasonable suspicion of having
committed an offence against that statute was unconstitutional
because it was inconsistent with section 5 of the Constitution of
Mauritius which guaranteed to every person in Mauritius freedom
from arbitrary arrest and detention.
68. At page 603 to 604, Moollan, CJ, in giving the judgment of the
court (in which Glover, J concurred) said:
“…The whole of our Constitution clearly rests on two fundamental tenets, the rule of law and the juxtaposition (or separation as it is more often called) of powers. More particularly, according to
35
section 10 and Chapter VII, the trial of persons charged with criminal offences and all incidental or preliminary matters pertaining thereto are to be dealt with by an independent judiciary. Only offences against disciplinary laws triable by Courts-Martial are excluded from this ambit. Even where the law makes provision for disciplinary offences to be within the jurisdiction of certain tribunals or service commissions, or where section 5 (1) (k) or 18 (1) of the Constitution permits the detention of persons in special circum-stances connected with the maintenance of law and order, any decision of those tribunals or commissions or a decision of a tribunal set up under section 5(4) or 18 (3) is judicially reviewable by the Supreme Court (sections 118 and 119) of the Constitution). We conclude therefore that it is not in accord with the letter or spirit of the Constitution, as it presently stands, to legislate so as to enable the Executive to overstep or bypass the Judiciary in its essential roles, namely those of affording to the citizen the protection of the law and, as guardian of the Constitution, to ensure that no person’s human rights or fundamental freedoms are placed in jeopardy.” (Emphasis added)
69. Noordally was referred to without disapproval in Devendranath
Hurnam v The State (Privy Council Appeal No. 53 of 2004) by Lord
Bingham of Cornhill who delivered the judgment of the Board in the
latter case.
36
70. In The State v Abdool Rachid Khoyratty (Privy Council Appeal
No. 59 of 2004), both Noordally’s and Hurnam’s cases were again
referred to without disapproval.
71. Khoyratty’s case was about whether a purported amendment to
the Constitution of Mauritius which would have enabled the courts of
Mauritius, acting under a statute, to deny bail to persons charged with
specified dangerous drug offences was validly passed. The Privy
Council held that it was not validly passed as the procedure required
by the constitution of that country had not been followed and so the
amendment to their constitution did not have the effect contended for
by the state. The case for Khoyratty was that by removing from the
judges the power and duty to decide on matters of bail in relation to
offences prescribed by an Act of Parliament, section 2 of the 1994
Act was unconstitutional as it had not been passed in the manner
required by the constitution of Mauritius for amending the first section
of the Constitution.
72. In his reasons for agreeing with Lord Steyn who delivered the
judgment of the Board in Khoyratty’s case, Lord Rodger of Earlsferry,
in paragraph 25, pointed out that historically, the grant or withholding
of bail has been a matter for the judges of [Mauritius], but from 1986
onwards the legislature of that country had sought to exclude the
grant of bail in relation to certain offences.
73. At paragraph 28 of his reasons, Lord Rodger of Earlsferry
summarised the case for Khoyratty thus:
37
“…The case for the respondent was that, by removing from the judges the power and duty to decide on matters of bail in relation to offences prescribed by an Act of Parliament, section 2 of the 1994 Act really purported to amend section 1 of the Constitution. More particularly, it was designed to alter one of the well-understood components of a democratic state as envisaged in section 1, viz the separation of executive and judicial powers.”
At paragraph 30, Lord Rodger of Earlsferry concluded –
“30. I have come to the view that section 2 of the 1994 Act did indeed purport to make a fundamental, albeit limited, change to this component of the democratic state envisaged by section 1 of the Constitution. The crucial problem lies in the absolute nature of section 5(3A). Where applicable, it would completely remove any power of the judges to consider the question of bail, however compelling the circumstances of any particular case might be. By contrast, a provision, for example, that persons of the type envisaged in the subsection should not be admitted to bail unless in exceptional circumstances would not create the same problems because the judges would still have a significant, even if more restricted, role in deciding questions of bail and of the freedom of the individual. Unfortunately, however, as Mr. Guthrie QC stressed on behalf of the respondent, precisely because it is absolute in form and effect, subsection 5(3A) is liable to operate arbitrarily and so, it may well be, to create potential difficulties in relation to section 3(a) of the
38
Constitution. Moreover, there is a risk that by choosing to charge an offence which falls within section 32 of the Dangerous Drugs Act, the relevant agent of the executive, rather than a judge, would really be deciding that a suspect should be deprived of his liberty pending the final determination of proceedings. In these respects, the executive would be trespassing upon the province of the judiciary: Ahnee v DPP [1999] 2 AC 294, 303…” (Emphasis supplied).
74. Mr. Ducille submits that in enacting the new subsection 4(2) of
the Bail Act, Parliament has trespassed upon the province of the
Judiciary of The Bahamas in its essential role of affording to the
citizens of this country the protection of the law and that that is an
impermissible use of the legislative power. In my view, Mr. Ducille is
correct in that submission. However, the issue then arises as to
whether or not bail ought to have been granted by the judge in the
Supreme Court in any of these four cases, bearing in mind all of the
circumstances of the respective cases. I shall deal with that aspect
of the cases later.
75. In the State v Dlamini, Dladla and Others, Joubert and
Schietekat [2000] 2 LRC 239, the Constitutional Court of the Republic
of South Africa, held that the impugned statutory provisions which
prohibited the grant of bail except where such grant was “in the
interests of justice” did not contravene the Constitution of that
country.
39
76. At pages 291 to 292, Kriegler, J, who gave the judgment of the
Court summed up the effect of the judgment thus –
“(1) None of the provisions of the CPA impugned in the four cases before the court infringes the Constitution on any of the grounds advanced here.
(2) None of the provisions of the Constitution presents any major obstacle to the application of those impugned pro- visions.
(3) Bail as an institution is well known; so are its objectives and broad criteria. The advent of the Constitution and the adoption of the 1995 and 1997 amendments to s. 60 of the CPA properly construed, have provided a norm and guided the evaluation
process.
(4) Section 35 (1) (f) of the Constitution acknowledges that persons may be arrested and detained for allegedly having omitted offences but such arrestees are entitled to be released on reasonable conditions if the interests of justice permit.
(5) Deciding whether the interests of justice permit such release, and determining appropriate conditions, is an exercise to be performed judicially in accordance with the
procedure laid down in s. 60 of the CPA.
(6) Although a bail application is a formal court proceeding, it is relatively informal, inherently urgent and serves a uniquely interlocutory purpose distinct from that of
40
the trial; the issue is not guilt but where the interests of justice lie in relation to bail.
(7) In determining where the interests of justice lie, the essential exercise is to ascertain the relevant circumstances by using as guide the checklist of relevant factors against the grant of bail provided in sub-s (4), as particularized in sub-ss (5) to (8A), and of those for the grant of bail provided in sub-s (9).
(8). With regard to the factors both for and against the grant of bail, the checklist is not exhaustive, and the court has to consider any other relevant factor.
(9) In seeking to establish the presence of such factors the court is to act as proactively and inquisitorially as may be necessary.
(10) Having established all relevant factors, the court must weigh up the pros and cons of bail judicially, keeping in mind the possibilities of using appropriate conditions
to minimise possible risks.
(11) Where the public peace is a factor, ie where sub-ss (4) (e) and (8A) are invoked, the court should proceed with great caution and establish that the requisite exceptional
circumstances are indeed present.
(12) Likewise, where sub-s (11) (a) is involved, the court should be astute to ensure that the right to bail under s 35 (1) (f) of the Constitution is not rendered illusory by the effect of sub-s (14), the incidence of the onus and the need to adduce evidence.
41
The accused is entitled to a reasonable opportunity to establish exceptional circum- stances. The latter term holds no hidden meaning and is to be applied judicially.
(13) Although the accused’s guilt may be relevant in a bail application, evidence thereon should be confined to the central issue whether the interests of justice permit the release of that accused on bail. Abuse by the prosecution of the right to cross-examine on that issue may result in the evidence being excluded at trial.
(14) The record of bail proceedings is neither automatically excluded from nor included in the evidentiary material at trial. Whether or not it is to be excluded is governed by the principles of a fair trial.
(15) Bail serves not only the liberty interest of the accused, but the public interest by reducing the high number of awaiting trial prisoners clogging our already over-crowded correctional system, and by reducing the number of families deprived of a breadwinner…”
77. That decision is to be compared with the decision of the
Canadian Supreme Court in Regina v Morales (1993) 17 CR (4th) 74
(CSC) striking out the words “in the public interest or” from the
Canadian Criminal Code because those words were vague and
imprecise and a denial of bail based on them was not justified. In
their judgment the Canadian Supreme Court said that the words “in
the public interest” [created] –
42
“…A standardless sweep does not become acceptable simply because it results from the whims of judges and Justices of the Peace rather than the whims of law enforcement officials. Cloaking whims in judicial robes is not sufficient to satisfy the principles of fundamental justice… No amount of judicial interpretation would be capable of rendering [the term ‘public interest’] a provision that gives any guidance for legal debate.”
78. In Devendranath Hurnam v The State (Privy Council Appeal
No. 53 of 2004) Lord Bingham of Cornhill, in delivering the judgment
of the Board, after reviewing a number of decisions by the Mauritius
Supreme Court on that Republic’s Bail Act, said this:
“15. It is obvious that a person charged with a serious offence , facing a severe penalty if convicted, may well have a powerful incentive to abscond or interfere with witnesses likely to give evidence against him, and this risk will often be particularly great in drugs cases. Where there are reasonable grounds to infer that the grant of bail may lead to such a result, which cannot be effectively eliminated by the imposition of appropriate conditions, they will afford good grounds for refusing bail. The Board cannot, however, accept the criticism made of the earlier decisions in Labonne (JV) and Deelchand. The judgment in Rangasamy does not adequately recognise the general right to liberty enshrined in section 3(5) of the Constitution and reflected in section 3 of the 1999 Act. It seeks to reinstate, in part at least, the rule
43
deliberately discarded in the 1999 Act. It puts an onus on the detainee where it should be on the party seeking to deprive him of his liberty. It elides the general right to be released on bail and the right to be released if not brought to trial within a reasonable time, which are both important rights but distinct and different rights. The seriousness of the offence and the severity of the penalty likely to be imposed on conviction may well, as pointed out at the beginning of this paragraph, provide grounds for refusing bail, but they do not do so of themselves, without more: they are factors relevant to the judgment whether, in all the circumstances, it is necessary to deprive the applicant of his liberty. Whether or not that is the conclusion reached, clear and explicit reasons should be given.” (Emphasis added)
79. His Lordship then went on to refer to the Strasbourg
jurisprudence on the European Convention, “which recognizes that
the right to personal liberty, although not absolute (X v United
Kingdom (Application No. 8097/77, unreported, E Comm HR)), is
nonetheless a right that is at the heart of all political systems that
purport to abide by the rule of law and protects the individual against
arbitrary detention…”. His Lordship then continued at paragraph 16
of the judgment in Hurnam’s case thus:
“…The European Court has clearly recognised five grounds for refusing bail (the risk of the defendant absconding; the risk of he defendant interfering with the course of justice; preventing crime;
44
preserving public order; and the necessity of detention to protect the defendant)… But it has insisted that a person must be released unless the state can show that there are ‘relevant and sufficient reasons’ to justify his continued detention… The Euro- pean Court has, realistically, recognised that the severity of the sentence faced is a relevant element in the assessment of the risk of absconding or re-offending… but has consistently insisted that the seriousness of the crime alleged and the severity of the sentence faced are not, without more, compelling grounds for inferring a risk of flight… In Ilijkov v Bulgaria… para 81, the Court repeated ‘that the gravity of the charges cannot by itself serve to justify long periods of detention on remand.’
It went on, para 84, to reiterate
‘that continued detention can be justified in a given case only if there are specific indications of a genuine requirement of public interest which, notwithstanding the presumption of innocence, outweighs the rule of respect for individual liberty. Any system of mandatory detention on remand is per se incompatible with article 5(3) of the Convention…’ (Emphasis supplied)
Thus a statutory prohibition on the grant of bail in a limited class of very serious cases was conceded by the United Kingdom in Caballero v United Kingdom (2000) 30 EHRR 643, para 20, to violate the Convention…
45
The compatibility with the Convention of the amendment enacted to remedy this violation was considered by the Queen’s Bench Divisional Court in R(O) v Crown Court at Harrow [2003] 1 WLR 2756.” (Emphasis added).
80. Harrow’s case was reviewed by the House of Lords in 2006 in a
decision handed down on 26 July, 2006 [2006] UKHL 42. The issue
in that case was whether the extension of the statutory time limit for
detaining a person reasonably suspected of crime pending trial was
in breach of article 5(3) of the European Convention for the Protection
of Human Rights and Fundamental Freedoms if a defendant was still
held in custody by virtue of the operation of section 25 of the Criminal
Justice and Public Order Act 1994 of the United Kingdom. In that
case, their Lordships concluded, in effect, that section 25 should be
read down so as to bring it into conformity with article 5(3) of the
European Convention.
81. In these appeals, Mr Gaskin submits that subsection 4(2) of the
Bail Act should also be “read down” or construed and applied
essentially as a guide to the proper operation of the Bail Act in those
cases to which it applies so as to bring it into conformity with Article
19(3) of the Constitution. I do not think that I can accept that
submission because in my view the very words used in subsection
4(2) of the Bail Act are clear; there is no ambiguity which would
require me to read that provision down so as find, for example, that
where there are exceptional circumstances, bail may be granted.
Furthermore, to do so, in my judgment would not amount to the
46
interpretation or construction of the subsection as it presently stands,
but would amount to redrafting it. That is something I am not
prepared to do since a judge has no power to legislate substantive
law or to change the plain words used by Parliament in the exercise
of its legislative power. However, a judge has the power under Article
2 of the Constitution to decide whether legislation passed by
Parliament is consistent with the Constitution and if it is not, the
judge, as guardian of the Constitution, should say so in accordance
with that Article.
82. While section 4 of the Bail Act as originally promulgated did not
absolutely prohibit the grant of bail in murder and other serious cases
by Justices of the Supreme Court, as re-cast in 1996, subsection 4(2)
does just that, that is, it absolutely prohibits the grant of bail in
murder and armed robbery cases, even where an accused person is
not tried within a reasonable time; that subsection, in my judgment, is
therefore in conflict with Article 19 (3) of the Constitution and as a
result it is void and of no effect and the 1995 decisions in the Beneby
and Lockhart cases mentioned above are not precedents on which
the interpretation of the new subsection 4(2) of the Bail Act can be
based. I hold therefore, that the judges of the Supreme Court and
this Court have a discretion whether or not bail should be granted,
even in cases where a person is detained pending trial for offences
which fall within Part C of the First Schedule to the Bail Act.
83. That, however, is not the end of the matter because the
discretion that the judges have must be exercised judicially as well as
judiciously, and as pointed out by Chief Justice Simpson in Ngui’s
47
case, and Lord Bingham in Hurnam’s case, the discretion of the
judges is to be exercised in accordance with well established
principles, including the likely penalty which may be imposed on
conviction as an indicator of the likelihood of a detained person
absconding while on bail. And as Lord Bingham pointed out in
Hurnam’s case, the Strasbourg jurisprudence recognizes that in
considering whether to release a person accused of serious crimes
(like those in Part C of the First Schedule to the Bail Act), a judge
may refuse bail on five grounds – the risk of the accused absconding;
the risk of the accused interfering with the course of justice;
preventing crime, preserving public order and the necessity to protect
the accused – and, in addition, the judge should recognise that the
severity of the penalty if convicted, is a matter to bear in mind when
considering whether an applicant for bail may abscond or re-offend if
granted bail. A judge should also bear in mind the character or
antecedents of an applicant for bail when considering whether or not
to grant bail to that applicant – see R v Phillips and H M Post Master
General v Whitehouse cited in paragraph 29 above.
84. Bearing those principles in mind, I turn now to consider the
appeals against the grant of bail to the remaining three respondents
in these appeals.
Bradley Ferguson:
85. The facts relied on by the prosecution in their objection to the
grant of bail to Bradley Ferguson (“Ferguson”) as noted earlier, are
set out in the judgment of the Honourable Justice Osadebay.
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86. The prosecution argued that in view of those facts as well as
the gravity of the offences and the severity of any sentence if
convicted, it was not reasonable to release Ferguson on bail in those
circumstances. The learned judge nevertheless granted bail.
87. The Attorney General appealed to this court against the grant of
bail to Ferguson pursuant to section 8A (1) of the Bail Act.
88. Bearing in mind the facts as set out by Justice Osadebay,
particularly the fact that during Ferguson’s retrial a key prosecution
witness complained of an attempt to prevent the witness from
testifying against Ferguson, albeit there is nothing to suggest that
Ferguson authorised the person who confronted that witness to do
so, required the learned judge to weigh very carefully, all aspects of
the application before deciding to grant bail in such a case.
89. I wish to emphasize that it is incumbent on the prosecution to
proceed with the prosecution in Ferguson’s case - as in all cases
where the liberty of the subject is at issue - with all due expedition
bearing in mind that it is a re-trial and the decision of the Privy
Council in Bell v Director of Public Prosecutions [1985] AC 937,
[1986] LRC (Const.) 392, where it was said that where a re-trial has
been ordered by an appellate court, the need for expedition in
prosecuting the re-trial means that a shorter time frame would be
considered reasonable .than if it were a first trial of, for example, a
complicated fraud case.
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90. In the result, bearing in mind all the circumstances of the case, I
agree with Osadebay JA that the Attorney General’s appeal should
be allowed and the bail granted by the learned judge revoked.
Consequently, the retrial should be prosecuted expeditiously.
Kermit Evans:
91. As indicated earlier, I adopt the summary of the facts in Kermit
Evans’ case (“Evans”) as set out in the judgment of Osadebay, JA.
92. Evans was in fact released on bail despite the notice of appeal
by the Attorney General having been given to the court within the 2-
day period stipulated by section 8A of the Bail Act. That should not
have been done since it sends quite the wrong message to persons
who are minded to follow a life of crime. It also undermines respect
for the courts and the administration of justice. I hope that that action
was carried out inadvertently.
93. What is even more disturbing is that the learned judge in
granting bail to Evans made one of the conditions of Evans’ bail that
he “is to have no contact with any witness in this matter”, which
suggests that the learned judge considered that there was reason to
think that Evans might do just that, otherwise there would be no need
to include such a condition.
94. The inclusion of that condition in itself shows that the learned
judge erred in law and on the facts in granting bail – see for example
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the passage from Lord Bingham’s judgment in Hurnam’s case cited
above.
95. In my judgment the Attorney General’s appeal against the grant
of bail to Evans should be allowed. The bail granted by Stephen
Isaacs J is therefore revoked and Evans is to be detained only for a
reasonable time pending his trial or proceedings preliminary to trial
for the offence of armed robbery. Consequently, the Attorney
General’s office is obligated to prosecute the case against Evans with
all due expedition.
Kenton Deon Knowles:
96. According to the summary of the facts in Osadebay JA’s
judgment, Kenton Deon Knowles (“Knowles”) not only has a history of
convictions for firearms offences, he in fact eluded the police for
approximately a year before he was arrested for the murder of his
nephew.
97. In addition, the learned judge, in granting bail to Knowles found
it necessary to require him to surrender his passport, to forbid him
leaving the country without the court’s leave and also prohibited him
from interfering with the prosecution witnesses “directly or indirectly”.
98. Bearing in mind the history of the exercise of judicial discretion
in murder cases set out above, the antecedents of Knowles, the very
fact that the judge who granted him bail found it necessary to forbid
him interfering with any prosecution witness, demonstrate, in my
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judgment, that bail ought not to have been granted by the learned
judge unless it was clear to him that Knowles could not be tried within
a reasonable time.
99. I would therefore have allowed the Attorney General’s appeal
against the grant of bail to Knowles and revoked that bail. As in the
cases of Ferguson and Evans, I would have reminded the
prosecution that it is their duty to prosecute the case against Knowles
with all due expedition as the refusal of bail is not final and he has a
constitutional right to be tried within a reasonable time. However,
before this judgment could be delivered, we learned that Knowles
was discharged following the close of the prosecution’s case in the
preliminary inquiry so that our conclusion will no longer affect the
charge of murder that had been laid against him. The principles
outlined in relation to Knowles’ case would be applicable to similar
cases.
100. I cannot leave this judgment without commenting on the
apparent escalation and brazenness of attempts (some of which have
apparently been too successful) to intimidate a witness or witnesses
for the prosecution and would point out that it is public knowledge
since 1984 when a witness who gave evidence to the Royal
Commission of Inquiry mentioned earlier had his face blow-torched,
that some prosecution witnesses in this small country now need
protection from persons accused of serious crimes or the latter’s
colleagues or relatives. It should be clear to everyone concerned with
the proper administration of justice in this country that where threats
are made against a witness or witnesses, then the administration of
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justice will be adversely affected. If should also be clear that if the
state does not make adequate provision for the safety of persons it
intends to call as witnesses for the prosecution, with the pervasive
effect of other cultures that is evident in the day to day experience of
the courts in this country, there is a greater likelihood that attempts
will be made to interfere with the course of justice by seeking to
intimidate witnesses, especially where the likely sentence if convicted
may extend to the imposition of a life sentence or a discretionary
death penalty, or where a considerable quantity of dangerous drugs
such as cocaine is involved.
Rt. Hon. Dame J. A. Sawyer, P.