In a landmark judgment handed down on the 28th July 2022 in Attorney General of Trinidad and Tobago (Appellant) v Akili Charles (Respondent) No 2 (Trinidad and Tobago)  UKPC 31, Lord Hamblen, writing for the Judicial Committee of the Privy Council (‘the Board’), struck down as unconstitutional the provisions of the Bail Act which had provided that bail could not be granted to any person charged with the offence of murder.
The relevant statutory provision mandating the automatic remand of individuals charged with murder (‘the Bail provision’) is section 5(1) and Part 1 of the First Schedule of the Bail Act 1994. The Respondent had been charged, jointly with five others, for the murder of Russell Antoine on 5 December 2010. From that point on, and further to the Bail provision, he was remanded in custody before being released on 21 May 2019, the Magistrate having determined that there was no case to answer against him. Mr Charles was accordingly released, having spent nearly 8 ½ years on remand in custody.
Mr Charles argued that the Bail provision was unconstitutional. There were two issues before the Board: (i) was the Bail provision saved law, in accordance with section 6 of the Constitution, and therefore protected from challenge by reference to the fundamental rights and freedoms set out at sections 4 and 5 of the Constitution? And (ii) whether the Bail provision was a valid law because it was passed under section 13 of the Constitution – i.e. was the Bail provision a law that could be said to be reasonably justifiable in a society that has a proper respect for the rights and freedoms of the individual?
In answer to the first issue the Board surveyed the authorities – many dating to the 19th century and beyond – and practitioner texts and agreed with the unanimous Court of Appeal decision that the Bail provision was not saved law. This is because the law in force before the enactment of the independence Constitution (and before the enactment of the Bail provision) was that judges of the High Court had always retained a discretion to grant bail in any case whatsoever, whereas the Bail provision provided for the total removal of this discretion.
As to the second issue, the Board noted that the Attorney General, in arguing that the Bail provision was saved, had argued that it had never been the practice for the Courts in Trinidad and Tobago to grant bail to persons accused of murder. This being so, the Board found it difficult to see why there was a need to remove any discretion left to the court to grant bail and to impose a legal prohibition. In relation to murder, the legislature’s concerns that bail was being granted too readily in the context of a rising crime rate was already being met by the practice of the courts not to grant bail.
The Board held that a Court should be slow to strike-down as unconstitutional a law passed pursuant to section 13 of the Constitution. The burden rests on a challenger to such a law, and the burden is a heavy one. Nevertheless, the burden had been satisfied in this case. The Bail provision pursued a series of legitimate aims and the legislation was rationally connected to the pursuit of the same. However, less intrusive measures were available to the State because, as the Board found, it was not necessary for the legislature to have imposed a blanket prohibition on the grant of bail. In considering whether a fair balance had been struck between the rights of the individual and the interests of the community, the Board also noted the range and significance of the rights that were interfered with by the Bail provision.
This being so, the Bail provision was struck down as unconstitutional, the Attorney General’s appeal was dismissed and the ruling of the Court of Appeal upheld.
Adam Riley was instructed as junior counsel for the successful Respondent, Mr Akili Charles.
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July 29, 2022
December 20, 2021