29th Jul 2022
Adam Riley instructed as junior counsel for the successful Respondent, Mr Akili Charles.
This appeal concerns the constitutionality of a law passed by the Parliament of the Republic of Trinidad and Tobago which provides that bail may not be granted to any person charged with the offence of murder.
The relevant statutory provision (“the Bail provision”) is section 5(1) and Part 1 of the First Schedule of the Bail Act 1994 (“the Bail Act”).
The appellant, the Attorney General, accepts that the Bail provision derogates from the fundamental rights and freedoms enshrined in sections 4 and 5 of the Constitution of Trinidad and Tobago adopted in 1976 (“the Constitution”) but contends that it was nevertheless constitutional on two grounds. First, it was an “existing law” immediately before the commencement of the Constitution and therefore, pursuant to section 6 of the Constitution, it was not invalidated by anything in sections 4 and 5 (“the existing law issue”). Secondly, it was passed with a special majority under section 13 of the Constitution (“the section 13 issue”). Section 13 allows for Acts of Parliament to be passed even though they are inconsistent with sections 4 and 5, provided that they are declared to have that effect and that they are passed with a three-fifths majority of both Houses of Parliament, as the Bail Act was. An Act will have the declared effect unless it is “shown not to be reasonably justifiable in a society that has a proper respect for the rights and freedoms of the individual”.
The Court of Appeal rejected the Attorney General’s case, holding that the Bail provision was not an existing law and that it was not reasonably justifiable so as to be validated by section 13 of the Constitution. The Attorney General appeals with leave to the Privy Council.
2. The factual background
The respondent, Akili Charles was charged, jointly with five others, for the murder of Russell Antoine on 5 December 2010. He was thereafter kept on remand in custody at the Royal Jail in Port of Spain pending trial.
The respondent’s preliminary inquiry began on 16 January 2012 before the-then Chief Magistrate, Her Worship Marcia Ayers-Caesar. The preliminary inquiry continued for five years before it halted, part-heard, on 3 April 2017 when the Chief Magistrate was elevated to the High Court bench as a puisne judge. The then Acting Chief Magistrate, Her Worship Maria Busby Earle, decided that the respondent’s preliminary inquiry should be heard de novo.
On 17 October 2017, the respondent challenged this decision by way of a claim for judicial review and constitutional relief. The claim was ultimately dismissed by Gobin J on 4 January 2019. The second preliminary inquiry began shortly thereafter before Her Worship Maria Busby Earle but was discharged on 21 May 2019, the magistrate having determined that the evidence relied on by the State did not give rise to a case to answer. The respondent was accordingly released, having been on remand in custody for nearly 8 ½ years.