Should judicial officers be allowed to consider bail for people charged with murder?
This is the question that High Court Judge Joan Charles is expected to answer later this month as she decides a constitutional legal challenge over murder being a non-bailable offence.
Presenting submissions yesterday during the virtual trial of the case brought by 39-year-old Akili Charles (no realtion), who brought the case after he was freed of murder after spending over a decade on remand, Senior Counsel Anand Ramlogan repeatedly noted that his client was not advocating for the automatic granting of bail to murder accused.
“We are not arguing that persons accussed of murder should get bail but rather that it should be decided by a judicial officer,” Ramlogan said, as he noted that the case was recently mischaracterised by Attorney General Faris Al-Rawi, while responding to questions over the role of bail in addressing violent crime.
Ramlogan suggested that the blanket provision is arbitrary and inappropriate as he pointed out that the United Kingdom, Australia and several Caribbean islands including Barbados all have provisions for bail for murder.
Ramlogan called on Charles to take a bold step and strike down the colonial-age policy as was done by her colleagues in recent cases over this country’s buggery and sedition laws.
“It is plainly not reasonably justifiable in a democratic society with regard to fundamental rights,” Ramlogan said.
He suggested that the provision infringed on the principle of the separation of powers, which protects the independence of the executive, the legislature and the Judiciary,as it infringed on judicial officers’ discretion to decide upon such issues based on laws and the unique circumstances of a case.
Ramlogan also called on Charles to not be swayed by public concern over violent crimes and apply the law strictly.
“The imposition of mandatory detention in the Claimant’s case is not rationally connected to the objective of reducing murders or otherwise connected to any aspect of the case against him,” Ramlogan said.
Charles’ position in the case was supported by the Law Association, who was represented by its president Douglas Mendes, SC.
Like Ramlogan, Mendes used a topical yet hypothetical case of a man avenging the rape and murder of his daughter being forced to face the same conditions as he killers.
“The father would not be a danger to society at all and it would just be really whether he would turn up at the trial,” Mendes said.
Responding to both parties, Senior Counsel Fyard Hosein suggested that allowing the lawsuit would open a “Pandora’s box” in terms of crime.
“Think of the effect on the entire legal system and country. This will be the murder capital of the world practically,” Hosein said.
He also said that it would bankrupt the State as hundreds of persons similarly circumstanced would seek compensation if Charles was to succeed.
Hosein also claimed that the policy, which was included in pre-Independence legislation, was saved from review over being reasonably justifiable as it was essentially ratified by the Bail Act in 1994.
He suggested that if Charles and the association felt strongly about bail for some persons charged with murder they should advocate for Parliament to amend laws to categorise the offence as in foreign jurisdictions.
“That is a difficulty in itself,” Hosein said, as he noted that such a move would require a three-fifths majority in Parliament.
Hosein also sought to claim that regional countries only introduced bail for murder after making such amendment and removing the manadatory death penalty for murder, but was corrected by Mendes.
After hearing the submission, Charles said she would deliver her judgment in the case next week Friday.
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 Magistrates’ 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.
Charles is also represented by Ganesh Saroop, Robert Mitchell and Alvin Pariagsingh.