The Court of Appeal is expected to deliver its judgement in a case, over judicial officers being allowed to consider bail for persons charged with murder, before the end of the year.
Chief Justice Ivor Archie and Appellate Judges Mira Dean-Armorer and Malcolm Holdip reserved their decision in the case after hearing submissions from the State, the Law Association and Akili Charles, who brought the case after spending over a decade on remand before being freed of murder.
Presenting submissions on Charles’ behalf, Senior Counsel Anand Ramlogan repeatedly noted that his client was not calling for all persons charged with murder and other capital offences to be eligible for bail but rather that magistrates and judges should be allowed to consider bail for such persons on a case by case basis.
“Akili Charles lost the roaring years of his youth in the prison system only to be let off on a no-case submission,” Ramlogan said.
Ramlogan suggested that judicial discretion is required considering chronic delays in the criminal justice system, which causes murder accused persons to spend between eight and 10 years on remand before they face a trial.
“The system is eroding. The presumption of innocence is devalued, if not completely destroyed,” Ramlogan said.
Ramlogan suggested that the policy, which was based on pre-Independence ordinances and ratified under the 1994 Bail Act, breached the separation of powers principle as the legislature sought to remove judicial oversight for bail for persons charged with offences, which carry the death penalty.
“It is constitutionally impermissible…This is a core judicial function,” Ramlogan said.
Ramlogan also questioned the effectiveness of the policy.
“Given that we had no bail for murder for almost 100 years, is the country any safer? Are there fewer murders?” Ramlogan asked rhetorically.
Ramlogan’s position on the issue was supported by Senior Counsel Douglas Mendes, SC, who led the association’s legal team.
Mendes also noted that there were many tools available to the judicial officers including electronic monitoring to ensure accused persons do not abscond from their criminal cases if granted bail before trial.
Responding to both parties, Senior Counsel Fyard Hosein suggested that the policy was exempt from judicial intervention as it was saved by the 1976 Constitution and was essentially ratified by Parliament when it passed the Bail Act in 1994.
While Hosein acknowledged delays within the criminal justice system, he called on the appeal panel to not be swayed by such considerations as he maintained that only Parliament could make such a decision.
“The court has to approach this in a clinical and antiseptic way…It is for the legislature to take this into consideration,” Hosein said.
Archie quizzed Hosein on what was the legitimate objective of the blanket removal of discretion and whether there were less intrusive ways of achieving it.
Hosein suggested that the objective was preventing persons accused of murder from absconding based on the potential penalty for their crime.
He stated that because the colonial policy was saved under the Constitution, alternative methods available today should not be considered.
The appeal panel reserved their decision to a date to be announced, but Archie said that the decision should be ready before the Judiciary takes its annual Christmas break in December.
Charles is also represented by Ganesh Saroop, Robert Mitchell, and Alvin Pariagsingh.
About the Case
Charles, Chicki Portillo, Kareem Gomez, Levi Joseph, Israel “Arnold” Lara, and Anton Cambridge were charged with murdering Russell Antoine on May 13, 2010.
Antoine, 27, was walking along Upper Cemetery Street, Diego Martin, when he was shot several times. Antoine’s friend Marcus and Joseph Spring, were wounded in the incident and the group was also charged with shooting them with intent to cause them grievous bodily harm.
The preliminary inquiry in the case went on for almost nine years and had reached an advanced stage when then chief magistrate Marcia Ayers-Caesar took up the promotion in April 2017.
Charles and his co-accused caused what was described as a near-riot at the Port-of-Spain Magistrate’s Court when Ayers-Caesar’s successor Chief Magistrate Maria Busby-Earle-Caddle first suggested that their preliminary inquiry may have to be restarted.
The inquiry was put on hold while a lawsuit from the Office of the Attorney General pursued a statutory interpretation lawsuit over what procedure should be adopted in situations where judicial officers leave their office with part-heard cases still pending.
In January 2019, High Court Judge Carol Gobin eventually ruled that such cases had to be restarted.
Charles and his neighbours’ case was then restarted and completed within four months.
All six men were freed of the charges as Busby-Earle-Caddle ruled that the State failed to present sufficient evidence to sustain the charge.
Last year, Charles was awarded almost $300,000 in compensation for the breaches of his rights due to the delay.
In March, Charles’ case against the policy of no bail for persons charged with capital offences was dismissed by High Court Judge Joan Charles, who agreed with the State that the policy was saved.
“In my view, it is a function of the legislative arm of government, taking into account current societal norms and any other social factors it deems relevant, to decide whether the law relating to bail for murder ought to be repealed, amended or replaced as has happened in other Caribbean jurisdictions,” Justice Charles said.