DEREK ACHONG

Judicial officers can now consider granting bail to persons charged with murder.

Delivering a written judgment during a virtual hearing, earlier today, Chief Justice Ivor Archie and Appellate Judges Mira Dean-Armorer and Malcolm Holdip ruled that Section 5(1) of the Bail Act of 1994—which precludes the grant of bail for persons accused of murder—is inconsistent with the Constitution and should be struck down.

The appeal panel also ruled that segment of the legislation was not reasonably justifiable in a society that is concerned about the rights of citizens, and that it interfered with a core judicial function.

It also noted that the constitutional savings clause, which insulates pre-Republican legislation from review by a court, did not apply as there was no general prohibition to grant bail, to persons charged with murder, in 1976.

Senior Counsel Fyard Hosein, who led the State’s legal team, stated that his client wanted the judgment temporarily suspended as it was concerned that there would be a multitude of applications from hundreds of persons currently on remand for murder.

“The consequences would be very dire especially if one takes into consideration what is happening on the streets with gangs,” Hosein said.

In addition to the country’s current crime situation, Hosein suggested that the court also had to consider whether persons who benefit may reoffend or abscond from their eventual trials.

Lawyers representing former murder accused Akili Charles, who brought the lawsuit, and the Law Association of T&T, which supported it, did not object to the State being granted conditional leave to take the landmark case to the Privy Council but raised concerns about the outcome of the judgement being put on hold pending that final appeal.

Senior Counsel Anand Ramlogan, who led Charles’ legal team, dismissed Hosein’s concerns over the potential significant effect on crime.

“It doesn’t translate to an avalanche of successful bail applications,” Ramlogan said as he noted that judicial officers would have to consider the stringent criteria for bail under aspects of the legislation, which were not under challenge, before granting such.

CJ Archie agreed.

“There may be a floodgate, but the court will have to deal with them in a structured way given the resources it has… I don’t have the trepidation that the AG has,” Archie said.

“We are dealing with the constitutionality of the legislation. I don’t want to say too much but it cannot be suggested that a way of solving the crime problem is to put persons in detention, who enjoy the presumption of innocence,” Archie said.

After considering the issue further, CJ Archie and his colleagues invited Hosein to file submissions on the suspension application, which would be heard by them on March 3rd.

About the Case

Akili 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.  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.

In 2019, Charles was awarded almost $300,000 in compensation for the breaches of his rights due to the delay.

In March, last year, 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.