COMMONWEALTH OF THE BAHAMAS IN THE COURT OF APPEAL

SCCr. Bail Application Nos. 57, 106, 108 and 116 of 2008

THE ATTORNEY GENERAL

Appellant V

BRADLEY FERGUSON KERMIT EVANS

STEPHEN STUBBS KENTON DEON KNOWLES

Respondents

Before: The Rt. Hon. Dame Sawyer, P The Hon. Mr. Justice Osadebay, JA The Hon. Mr. Justice Longley, JA Appearances: Mr. Garvin Gaskin and Mr. Neil Brathwaite for

the Appellant Mr. Ducille and Ms. T’Shura Ambrose for the Respondents Dates: 7, 9 October; 4 November; 29 December, 2008 21 May, 2009

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J U D G M E N T

1. These four appeals by the Attorney General against the grant of

bail by Steven Isaacs, J, and Lockhart, Actg. J., (hereafter referred to

respectively as “the judge”) were heard together as they raise similar

issues of law for consideration even though their factual backgrounds

differ.

2. I have read the judgments of the Honourable Mr. Justice

Osadebay and the Honourable Mr. Justice Longley. I agree with

Justice Osadebay’s decision that the appeals of the Attorney General

ought to be allowed.

3. However, as these cases are the first of their kind to be

considered by this court, and since we are required to deal with the

constitutionality of legislation, I think I ought to give my reasons for

holding that subsection 4(2) of the Bail Act (Ch. 103) (“the Bail Act”) is

unconstitutional and for allowing the Attorney General’s appeal.

4. The factual background to these appeals put succinctly, is this:

Bradley Ferguson, Stephen Stubbs and Kenton Deon Knowles, were

each charged with murder. Bradley Ferguson has been tried twice on

the same murder charge and is awaiting a third trial for the same

offence while Stephen Stubbs and Kenton Deon Knowles have not

even had a preliminary inquiry by a magisterial court to see whether

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there is sufficient evidence for either of them to be committed to the

Supreme Court for trial. Kermit Evans is charged with armed robbery

and he has not yet been tried on that charge.

5. While I was writing this judgment, I learned that Stephen Stubbs

was discharged by the learned magistrate at the end of the

prosecution’s case in the preliminary inquiry into the murder charge

against him so that anything said in this judgment cannot now affect

the grant of bail to him.

6. With regard to the remaining appeals, I gratefully adopt the

summaries of the facts in those appeals as set out in Justice

Osadebay’s judgment.

7. The main issue that arises in these appeals in my view is

whether subsection 4 (2) of the Bail Act is valid under the

Constitution; in other words whether the Parliament of The Bahamas

has power to enact legislation which has the purported effect of

denying bail to persons arrested and detained on reasonable

suspicion of having committed serious offences, no matter what the

circumstances of the alleged offence are, or how long a person is

detained by the Prison Authorities or the Police, without trial. I shall

deal with that aspect of the matter later in this judgment.

8. First, I wish to deal with Mr. Ducille’s submission that section

8A of the Bail Act is in conflict with the constitutional doctrine of the

separation of powers because it provides that where a judge grants

or refuses bail and the accused person or the prosecution appeals to

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this Court within two days against that grant or refusal, then the

decision of the judge is stayed pending the hearing and determination

of such appeal.

9. Subsections 8 (1), (3), and (4) of the Bail Act provide:

“(1) Where a Magistrate’s Court grants or refuses bail in criminal proceedings or imposes conditions in granting bail in criminal proceedings, the Supreme Court may, on application by an accused person or the police, grant or refuse bail or vary the conditions…

(3) Where the Supreme Court grants an accused person bail under subsection (1), the Court may direct that person to appear at a time and place which the Magistrate’s Court could have directed and the recognizance of any surety shall be conditioned

accordingly.

(4) Where the Supreme Court refuses an accused person bail under subsection (1) and the accused person is not then in custody, the Court shall issue a warrant for the arrest of the accused person, who shall be brought before a Magistrate’s Court and shall be remanded in custody.

10. As amended by Act No. 23 of 2007, section 8A of the Bail Act

provides:

“8A. (1) Where the Supreme Court grants or refuses a person bail, or refuses to

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revoke bail, the prosecution or the person, as the case may be, shall have a right of appeal to the Court of Appeal.

(2) An appeal shall be filed within two days of the making of the decision, the subject matter of the appeal, and pending the hearing of an appeal against an order admitting a person to bail that order shall be suspended”. (Emphasis added)

11. In light of the short time frame permitted by the section for

appealing and in light of the mischief the section was enacted to

remedy, as well as the history of similar legislative provisions both

pre- and post- the Constitution, I have come to the conclusion that

there is no merit in Mr. Ducille’s submission since the stay does not

prevent the Supreme Court from exercising its jurisdiction if no

appeal is filed or, if filed, this court from exercising its jurisdiction, if

the appeal is not pursued timeously. In my judgment, all the words

complained of do, in the context of the grant or refusal of bail, is to

maintain the position of the parties as it was before the Supreme

Court’s decision until at least this court has had an opportunity to

hear such an appeal as to whether the judge who granted or refused

bail was correct in law and on the facts to do so. Otherwise the right

of appeal conferred by the subsection would be rendered nugatory.

Indeed, before the addition of section 8A to the Bail Act in 2007, there

was no right of appeal from the grant or refusal of bail by a judge of

the Supreme Court – see Austin Knowles’s case cited below. A

person who unsuccessfully applied to the Supreme Court for bail

would have had to wait for a “change of circumstances” before

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reapplying for bail to that Court. Now, instead of having to wait for a

change of circumstances before re-applying for bail to the same or

another judge of the Supreme Court, a person who is refused bail can

now immediately appeal to this Court against that refusal; in some

ways that may be an advantage to a person who is being detained for

an unduly long period awaiting either trial or a preliminary inquiry.

12. It cannot be over-emphasised that it is the prosecution who has

the duty to bring accused persons to trial as soon as reasonably

possible, and that it is necessarily part of their duty to exercise due

diligence so that persons arrested and detained on reasonable

suspicion of having committed any arrestable criminal offence are not

kept in custody ad infinitum awaiting trial, or proceedings preliminary

to trial.

13. In my view, section 8A is valid because it gives an accused

person a right of appeal to this court against the refusal of bail by a

judge of the Supreme Court: it follows then that it cannot be invalid

because it gives a similar right to the prosecution to appeal to this

court against the grant of bail – see, for example Article 28(4) of the

Constitution which provides:

“(4) No law shall make provision with respect to rights of appeal from any determination of the Supreme Court in pursuance of this Article that is less favourable to any party thereto than the rights of appeal from determinations of the Supreme Court that are accorded generally to parties to civil proceedings in that court sitting as a court of original jurisdiction.”

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14. For completeness, I think I should point out that there are

similar provisions in subsection 235(1) of the CPC that pre-date both

section 8A of the Bail Act and the Constitution as well as section 40

of the Legal Profession Act (Ch. 64) which is post the Constitution.

Subsection 235(1) of the CPC, so far as it is material, reads:

“235. (1) An appeal shall have the effect of suspending the execution of the decision appealed against until the appeal shall have been determined, and shall be on motion or by case stated as hereafter in this Code provided:”

15. In cases falling within that subsection over the years, both the

prosecution and the defence have appealed to the Supreme Court

and, since 19 December 1996, to this court, in specified types of

cases and the effect of the suspension of the lower court’s order was

usually that the convicted person was put on bail pending his appeal.

16. In the case of section 8A of the Bail Act, both the prosecution

and an accused person have the right of appeal to this court so the

legislation does not favour the prosecution over the accused and it

appears to apply to all cases coming within its ambit and is not, in my

judgment, legislation aimed at a particular individual or class of

individuals – see, for example, the decision of the Privy Council in

Kariapper v Wijesinha [1968] AC 717 at page 735.

17. I turn now to consider the issue of the constitutional validity of

subsection 4 (2) of the Bail Act which is the main issue in this appeal.

In order for that issue to be clearly understood, I begin the

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consideration of that issue by examining the history of bail in The

Bahamas.

The History of Bail in The Bahamas: The Common Law Regime:

18. Before 1994, by the common law of England which applied to

The Bahamas, judges of the Supreme Court, as the Bahamian

equivalent to the Court of Queen’s Bench, had the power, in their

discretion, to grant bail to persons arrested and charged with even

the most serious criminal offences: that was because by section 2 of

the Declaratory Act (Ch. 4): “The common law of England, in all cases where the same hath not been altered by any of the Acts or Statutes enumerated in the Schedule to this Act or by any Act (except so much thereof as had relation to the ancient feudal tenures, to outlawries in civil suits, to the wager of law or of batail, appeals of felony, writs of attaint and ecclesiastical matters), is, and of right ought to be, in full force within The Bahamas, as the same now is in that part of Great Britain called England.” (Emphasis mine).

19. The Court of Appeal, Stipendiary and Circuit Magistrates’

Courts and lay magistrates in some circumstances, as well as certain

designated law enforcement officers, also had, and still have, power,

by statute, to grant bail in specified cases.

20. On its face, section 2 of the Declaratory Act puts it beyond

peradventure that as a general rule, the common law of England

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applies in The Bahamas except where it has been, or may be,

changed by express statutory provision. At first glance, therefore, it

appears possible for Parliament, by express statutory provision, to

abrogate a common law discretionary power or jurisdiction, provided

it does not, in so doing, contravene any of the entrenched provisions

of the Constitution, such as those protected by Articles 16 to 27 of the

Constitution.

21. At common law, as the Supreme Court of The Bahamas had,

and still has, all the jurisdiction and powers of the Court of Queen’s

Bench in England, it also had power, in exercise of its judicial

discretion, to grant bail even in murder and treason cases – see, for

example, the judgment of Lord Russell, CJ in R v Spilsbury [1898] 2

QB 615, at page 620 of the report, where his Lordship said:

“…This Court has, independently of statute, by the common law, jurisdiction to admit to bail. Therefore the case ought to be looked at in this way: does the Act of Parliament either expressly or by necessary implication, deprive the Court of that power? The law relating to this subject is well stated in 1 Chitty’s Criminal Law, 2nd ed. p. 97, as follows: ‘The Court of Kings Bench, or any judge thereof in vacation, not being restrained or affected by the statute 3 Edw, 1, c. 15(1) in the plenitude of that power which they enjoy at common law, may, in their discretion, admit persons to bail in all cases whatsoever, though com- mitted by justices of the peace or others, for crimes in which inferior jurisdictions would not venture to interfere, and the only exception to their discretionary authority is,

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where the commitment is for a contempt, or in execution. Thus they may bail for high treason, murder, manslaughter, forgery, rapes, horse-stealing, libels, and for all felonies and offences whatsoever.’ ” (Emphasis mine)

22. It must be noted however, that the common law discretionary

power to admit persons to bail in cases of murder was seldom

exercised; this, no doubt, was because of the matters which the

judges of the Court of Queen’s Bench in England (and the Supreme

Court in The Bahamas) were required by precedent to take into

account when considering whether or not to grant bail. It is sufficient

at this stage to mention two of the dueling cases to demonstrate the

position of the Court with regard to applications for bail on a charge of

murder.

23. The first is In re Barronet and Allain 1 El and Bl 2, 118 ER 338

where Coleridge J, said:

“…I do not think that an accused party is detained in custody because of his guilt, but because there are sufficient probable grounds for the charge against him, so as to make it proper that he should be tried, and because the detention is necessary to insure his appearance at the trial. This Court has at all times an unlimited discretion to admit to bail; and since stat. 5 & 6 W. 4, c. 33, s. 3, two justices of the peace, one of whom shall have signed the warrant of commitment, have power to admit to bail persons charged with felony, ‘notwithstanding such persons shall have

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confessed to the matter laid to his or their charge, or notwithstanding such justices shall not think that such charge is groundless, or shall think that the circumstances are such as to raise a presumption of guilt’. That enactment shows clearly that, in the opinion of the Legislature, the guilt of the party charged is not the direct ground on which he is detained in custody; and that the strength of the evidence of guilt, even when it amounts to a confession, is not conclusive as to the propriety of bailing. But it is a very important element in considering whether the party, if admitted to bail, would appear to take his trial; and I think that, in coming to a determination on that point, three elements will generally be found the most important; the charge, the nature of the evidence by which it is supported, and the punishment to which the party would be liable if convicted…” (Emphasis supplied)

24. The second is In re Barthelemy, 1 El & Bl 8, 118 ER 340; at

page 340-341, Lord Campbell, CJ in delivering the judgment of the

court said:

“We have carefully looked over the depositions in this case; and we are of opinion that we should not be justified in interfering. It appears that the prisoners are committed on an inquisition, good on the face of it, finding them guilty of wilful murder: and, on looking at the depositions, it appears clear that there was a murder committed in a duel; and we think that there is evidence the prisoners were parties to the

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murder. We give no opinion as to whether that evidence is conclusive; but we think that it is sufficient to authorize the sending them to trial. It is unnecessary to consider what course we should pursue if the evidence were insufficient; for we are of opinion that it is sufficient; and we could not bail these prisoners without making a distinction between murder committed in a duel and any other murder, which would be contrary to all principle. Time was when the public feeling on this subject was contrary to the law; and I hope that the time is fast approaching when the custom of dueling will not only be, as it always was, wicked and illegal, but also be considered absurd…” (Emphasis mine)

In my view, the protagonists in duels were usually equally armed, and

they each had the right to defend himself when the other raised his

weapon so that in modern times the person who killed in a duel may

have been able to plead self-defence or provocation, the first being a

complete answer to a charge of murder, among others and the other

giving rise to a reduced penalty.

25. In its 1984 report on the use of The Bahamas by international

and local traffickers to facilitate the transshipment of dangerous drugs

between the main drug producing countries in the Caribbean and

South America and the United States of America, the Royal

Commission of Inquiry, after considering the effect of the apparently

too easy grant of bail to persons accused of drug trafficking with no

real or substantial connection to The Bahamas, which resulted in

such persons absconding after being granted bail in huge sums of

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money; and after examining the Bail Acts of the United Kingdom and

Queensland, Australia, the Commission recommended that similar

legislation be enacted to guide the exercise of judicial discretion when

deciding whether to grant or refuse bail in drug trafficking cases.

That recommendation was not followed at that time.

26. In 1994, in apparent response to continued public complaints

about the perceived routine grant of bail to persons charged with, and

convicted of, among others, serious drug trafficking offences, the

Parliament of The Bahamas enacted the Bail Act, 1994, (No. 20 of

1994) which entered into force on 22 September, 1994.

27. As originally drafted, the Bail Act accepted that there was a

“right” to bail (section 3 (1)) in some cases and it set out in express

terms those common law principles that were to be taken into

consideration by a court when deciding whether or not to refuse bail.

28 Also at common law, bail might be granted because the

presumption of innocence outweighed the “probable cause” of the

evidence in the case and because the circumstances were

considered “exceptional” by the judge – see, for example, the cases

cited in the argument of Mr. Huddleston, counsel for the applicant in

support of the application for bail in Barthelemy’s case, at page 340,

especially Rex v Morgan (1 Bulst. 84) and the Earl of Cardigan’s

case. See also the dicta of the Privy Council in Austin Knowles and

others v the Superintendent of Prisons (Privy Council Appeal No. 45

of 2004) at paragraph 27, where Lord Slynn, in delivering the

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judgment of the Privy Council, after setting out the arguments of

counsel for the United States Government, said:

“27. The Board considers that there is much force in these criticisms and the learned judge did not appear to give sufficient weight either to the nature of the crimes alleged or to the risk and advantage of, their fleeing. It is important that in this particular type of case these considerations should be taken fully into account and it should only be in exceptional cases that bail as a matter of discretion is granted…” (Emphasis added)

29. At common law, it was considered undesirable to grant bail in

cases other than murder and treason where, from the history of the

applicant, there was a likelihood of the offence being repeated where,

for example, a person had been previously convicted for

housebreaking or similar offences which could be committed if he is

released on bail – see R v Phillips, 32 Cr App R 47; or where the

defendant had a bad criminal record – see H. M. Postmaster-General

v Whitehouse, 35 Cr App R 8.

30. On the other hand, “refusal or delay by any judge or magistrate

to bail any person bailable is, at common law, an offence against the

liberty of the subject – 4 Blackstone’s Commentaries, 297. It is also

a violation of the Habeas Corpus Act, 1679 (Ch.63) and of the Bill of

Rights 1688. But the duty of a magistrate in admitting a defendant to

bail is judicial, and not merely ministerial, and therefore an action will

not lie against him without proof of malice for refusing to admit to bail

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a person charged with an offence, and entitled to be admitted to bail

– R v Badger (1843) 4 QB 468; Linford v Fitzroy (1849) 13 QB 240.

A justice [of the peace(?)] who admits a defendant to bail on

insufficient sureties is responsible if the defendant does not appear”

(38th Edition of Archbold’s Pleading, Evidence and Practice in

Criminal Cases, paragraph 292, page 87).

The Statutory Regime:

31. The Criminal Procedure Code Act (Ch. 91) (“CPC”) which was

passed by the Legislature in 1968, entered into force on 2nd April,

1969. Section 69 of the CPC was apparently intended to flesh out the

constitutional guarantee against arbitrary arrest and detention

contained in the 1963 Constitution; that section provided -

“69. – (1) Where any person, other than a person accused of murder or treason, appears or is brought before a court, or when committed for trial by any such court, and is prepared at any time or at any stage in the proceedings before such court to give bail, such person may be admitted to bail with or without a surety or sureties.

(2) The amount of bail in any case to

which the provisions of subsection (1) of this section apply shall not be excessive, and any court may accept a deposit of cash

in lieu of any security.

(3) Notwithstanding any other provisions of this section, the Supreme Court may in any case and at any stage thereof direct that any person be admitted

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to bail or that bail required by a magistrate’s court or by a coroner be reduced.” (Emphasis added)

32. From the very words of the section two important principles are

evident: first, except for the offences of murder and treason - both of

which were said to carry a mandatory sentence of death - all other

criminal offences were bailable by a magistrate’s court; second, the

common law jurisdiction of the Supreme Court remained intact so that

that Court could grant bail even in murder and treason cases,

particularly where an accused person was not tried within two

sessions of the Supreme Court – that period used to amount to six

months prior to the entry into force of the new Supreme Court Act

(Ch. 53) which came into force on 1 January, 1997 - or where there

were exceptional circumstances.

33. Section 69 of the CPC was repealed by section 15 and item

one in the Third Schedule to the Bail Act, 1994, with effect from 20

September, 1994.

34. The Long Title to the Bail Act reads:

“An Act to consolidate the law relating to the release from custody of accused persons in criminal proceedings and for other matters connected thereto.”

35. From the long title, as well as the provisions of the Bail Act as it

was in 1994, I infer that the purpose of the Bail Act was to

consolidate, without change, the law on bail; in other words, that

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there was a presumption in favour of the grant of bail. The Bail Act

also expressed, in statutory language, the common law principles

which governed the exercise of discretion by a court on an application

for bail by a person charged with, or convicted of, a criminal offence

and, as noted earlier, section 3 of the Bail Act expressly provided that

there was a right to the grant of bail in certain cases.

36. Section 4 of the Bail Act as it then was, provided:

4. Notwithstanding section 3 or any other enactment, any person charged with an offence mentioned in Part B of the First Schedule shall not be granted bail unless the court is satisfied that the person charged cannot be brought to trial within a reasonable time.” (Emphasis mine)

37. Murder, armed robbery and trafficking in dangerous drugs were

among the offences for which bail was not to be granted under that

section and the First Schedule unless the person so charged could

not be tried within a reasonable time. I bear in mind that the phrase

“a reasonable time” for the purposes of Article 20(1) of the

Constitution was held by Gonsalves-Sabola, CJ, to be two years at

the most – Stevenson Kelvin Hanna and others v the Attorney

General (Nos. 430 and 560 of 1989) delivered on 22 December,

1989; that decision was not appealed and, as presently advised, I

agree with it.

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38. Section 4 of the Bail Act was considered by three different

judges in the Supreme Court during 1995. Each of those judges

upheld the constitutionality of that section as it then read.

39. The first of those decisions in date order, was made by Hall, J

(as he then was) in his ruling in Commissioner of Police v Benjamin

Beneby and Lemuel Maycock and others, (Unreported) delivered on

16 February, 1995. Hall, J held that the provision of the Bail Act which

stated that bail should not be granted to persons charged with,

among other things, trafficking in dangerous drugs, was mandatory in

so far as it affected the exercise of the power to grant bail given to

magistrates’ courts but directory only insofar as it affected the

exercise by the Supreme Court of its inherent power to grant bail –

see also the Law Quarterly Review, Volume 113, page 127, note 61,

by M. S. Dockray, Professor of Law, the City University, London.

40. The second decision was one by me in Beneby v Commissioner

of Police (No. 28 of 1995), in a judgment delivered on 15 May, 1995

(Unreported). In that case, I came to the conclusion that section 4 as

it was then worded was not in conflict with the Constitution. In the

course of giving that judgment, I also pointed out that while

Parliament by legislation may set general standards – for example,

the criteria which are to be taken into consideration by a court when

deciding whether to grant or refuse bail – if by such legislation

Parliament sought to mandate how a court is to deal with particular

accused persons, that would be an impermissible use of the

legislative power as it would amount to legislating “ad hominem” –

Liyanage and others v Regina [1966] 1 All ER 650. I also pointed

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out that the grant or refusal of bail is a judicial function and for

Parliament to seek to exercise that function in any particular case

would also be an impermissible exercise of the legislative function –

see Hinds v The Queen [1977] AC195 at page 213 where Lord

Diplock, in giving the judgment of the Privy Council said:

“…What, however, is implicit in the very structure of a Constitution on the Westminster model is that judicial power, however it be distributed from time to time between various courts, is to continue to be vested in persons appointed to hold judicial office in the manner and on the terms laid down in the Chapter dealing with the judicature, even though this is not expressly stated in the Constitution: Liyanage v The Queen [1967] 1 AC 259, 287-288.

The more recent constitutions on the Westminster model, unlike their earlier prototypes, include a Chapter dealing with fundamental rights and freedoms. The provisions of this Chapter form part of the substantive law of the state and until amended by whatever special procedure is laid down in the Constitution for this purpose, impose a fetter upon the exercise by the legislature, the executive and the judiciary of the plenitude of their respective powers…Thus, where a constitution on the Westminster model speaks of a particular ‘court’ already in existence when the Constitution comes into force it uses this expression as a collective description of all those individual judges who, whether sitting alone or with other judges or with a jury, are entitled to exercise the jurisdiction

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exercised by that court before the Constitution came into force...” (Emphasis supplied)

41. In Kariapper v Wijesinha [1968] AC 717, Sir Douglas Menzies,

in giving the judgment of the Privy Council on the constitutional

validity of a statute passed by the Parliament of Ceylon, and after

reciting the arguments of counsel for the appellant who sought to

impugn the validity of that statute; at page 733, his Lordship referred

to the following observation made in the judgment of the Board in

Liyanage v The Queen [1967] 1 AC 259 at 291 -

“One might fairly apply to these Acts the words of Chase J., in the Supreme Court of the United States in Calder v Bull: ‘These acts were legislative judgments; and an exercise of judicial power.’ Blackstone in his Commentaries said: ‘Therefore a particular act of the legislature to confiscate the goods of Titius, or to attaint him of high treason, does not enter into the idea of a municipal law; for the operation of this act is spent upon Titius only and has no relation to the community in general; it is rather a sentence than a law.’ If such Acts as these were valid the judicial power could be wholly absorbed by the legislature and taken out of the hands of the judges.”

At page 735, his lordship continued:

“In considering the argument that the Act is in truth a bill of attainder or a bill of pains and penalties their Lordships have, of course, been greatly assisted by the

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judgments of the justices of the Supreme Court to which their attention has been drawn and they have found particularly valuable guidance in the judgment of Frankfurter J. in United States v Lovett (1946) 328 US 303, notwithstanding that in the result that learned judge was one of the minority… In rejecting the contention that the Act there under consideration was a Bill of Attainder his honour said:

‘No offence is specified and no declaration of guilt is made. Not only does section 304 lack the essential declaration of guilt. It likewise lacks the imposition of punishment in the sense appropriate for bills of attainder… Punishment presupposes an offense, not necessarily an act previously declared criminal, but an act for which retribution is enacted. The fact that harm is inflicted by governmental authority does not make it punishment. Figuratively speaking all discomforting action may be deemed punishment because it deprives of what otherwise would be enjoyed. But there may be reasons other than punitive for such deprivation. A man may be forbidden to practice medicine because he has been convicted of a felony… or because he is no longer qualified…’ The deprivation of any rights, civil or political, previously enjoyed, may be punishment, the circumstances attending and the causes of the deprivation determining this fact”. Cummings v State of Missouri.’

42. The two elements found by Frankfurter J to be absent from the

law under consideration in United States v Lovett, I find to be present

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in section 4 (2) of the Bail Act. First, it lists specific criminal offences -

that is, murder, armed robbery, kidnapping and treason – secondly, it

states that any person charged with any of those offences “shall not

be granted bail”; by doing so, Parliament is thereby denying bail to

any person charged with any of those offences, so that it is the

legislature which determines that a person charged with such an

offence should not be granted bail rather than any judicial officer,

including the judges of the Supreme Court. A third element, which

was not mentioned by Frankfurther J but which arises in the case of

section 4(2) of the Bail Act, is that there is no provision in that section

for a judicial officer to even consider the evidence linking that person

to the commission of the offence and fourthly, the subsection now

makes no allowance for the grant of bail where the detention of a

person charged by the executive with such an offence extends

beyond a period that may be considered reasonable for the trial of the

charge against him thereby turning what is essentially pre-trial

detention into punishment, a decision of the executive and legislature

not the judiciary - for the offence charged, without conviction; this I

find to be contrary to the constitutional doctrine of the separation of

powers and the presumption of innocence.

43. The third decision was given by Osadebay J, (as he then was)

in Lockhart v Commissioner of Police (No. 118 of 1995)(Unreported).

In that case, after referring to the decisions by Justice Hall and me,

and quoting the passage at pages 179-180 of the decision of the

Privy Council in the Attorney General of The Gambia v Momodou

Jobe [1984] 3 WLR 174, Osadebay J, concluded that: “…so long as

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Parliament stays within the Constitution it may pass legislation limiting the grant of bail to persons reasonably suspected of having committed a criminal offence provided that such persons are brought to trial within a reasonable time after they have been arrested and detained…”.

44. There was no appeal from any of those decisions and there is

nothing before us to indicate why it was thought necessary to amend

the Bail Act in the manner in which it was amended by the Bail

(Amendment) Act, 1996 (No. 27 of 1996), (“the 1996 Act”) particularly

by sections 2 and 3 of the 1996 Act.

45. By section 2 of the 1996 Act, the word “shall” in section 3(1) of

the Bail Act was repealed and replaced by the word “may” and the

marginal note to that section was changed to read “Discretionary

grant of bail” instead of “the right to bail” as it was previously; insofar

as section 3 now provides for the exercise of discretion in the grant or

refusal of bail, there is no argument about the constitutionality of that

section so I say no more about it.

46. Section 4 of the Bail Act, as repealed and replaced by section 3

of the 1996 Act, now reads:

“4. (1) Notwithstanding any other enactment, where any person is charged with an offence mentioned in Part B of the First Schedule, the Court shall order that that person shall be detained in custody for the purpose of being dealt with according to law, unless the Court is of the opinion that his detention is not justified, in which case,

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the Court may make an order for the release, on bail, of that person and shall include in the record a statement giving the

reasons for the order of release on bail:

Provided that, where a person has been charged with an offence mentioned in Part B of the First Schedule after having been previously convicted of an offence mentioned in that Part, and his imprisonment on that conviction ceased within the last five years, then the Court shall order that that person shall be detained in custody.

(2) Notwithstanding any other

enactment –

(a) a person charged with an offence mentioned in Part C of the First Schedule; or

(b) a person who has been

convicted and sentenced to a term of imprisonment in respect of those offences mentioned in Part D of the First Schedule who gives notice of his intention to appeal in accordance with the Criminal Procedure Code Act, against such conviction, shall not be granted bail:

Provided that where there are

exceptional circumstances, a court may grant bail to a person referred to in paragraph (b)…” (Emphasis added)

25

47. While section 4(1) of the Bail Act contemplates the mandatory

detention of a person reasonably suspected of having committed or

of being about to commit an offence mentioned in Part B of the First

Schedule to the Bail Act, it does not completely prohibit the grant of

bail in such cases because it provides for the court to grant bail if the

court is of the view that the detention of such a person is “unjustified”.

There is no similar provision in section 4(2) of the Bail Act.

48. Murder and armed robbery are two of the offences mentioned in

Part C of the First Schedule to the Bail Act. Kidnapping, treason and

conspiracy to commit those offences are also listed there. In this

judgment I confine myself to the constitutionality or otherwise of the

prohibition of bail in murder and armed robbery.

49. A comparison of subsection 4 (2) of the Bail Act with, for

example subsections 8 (1) and (5) of that Act shows that Parliament

was well aware of the existence of the common law power of the

Supreme Court to grant or vary bail granted or refused by lower

courts or tribunals. Subsections 8 (1) and (5) read:

“(1) Where a Magistrate’s Court grants or refuses bail in criminal proceedings or imposes conditions in granting bail in criminal proceedings, the Supreme Court may, on application by an accused person or the police, grant or refuse bail oe vary the conditions.

(5) The powers of the Supreme Court

under this section are without prejudice to the jurisdiction vested in the Supreme Court under any other law.” (Emphasis added)

26

50. At this point, it is noted that the new subsection 4(2) read with

Part C of the First Schedule to the Bail Act, creates an absolute

prohibition against the grant of bail by any court where a person is

arrested and detained on reasonable suspicion of having committed

murder, armed robbery or any other offence mentioned in Part C of

the First Schedule, whether or not a court of competent jurisdiction

might be minded, in the exercise of its judicial discretion, to grant bail

to the particular individual, bearing in mind the circumstances of the

particular case and whether or not the person is tried, or likely to be

tried, within a reasonable time.

51. As indicated earlier, that was not the position under section 4 as

it was first drafted nor is it the position of the Supreme Court under

subsections 8(1) and (5) of the Bail Act. The latter subsections

recognize the existence of the discretion of Supreme Court judges to

grant bail in respect of Part B offences in the circumstances set out in

the subsections. If subsection 4(2) made similar provision in respect

of Part C offences, there would probably not be any ground for raising

any issue on the constitutionality of that subsection.

52. Subsection 4(2) is even less understandable when contrasted

with the proviso to that section which provides for the grant of bail to

a person convicted of a crime listed in Part B of the First Schedule to

the Bail Act, “where there are exceptional circumstances” but makes

no similar provision for granting bail to a person who is accused of

such crimes where the accused person has not been tried within a

reasonable time. That seems a strange provision because it appears

to allow a court to grant bail to a person convicted of, among other

27

offences, attempted murder and rape of a person under 14 years of

age but yet denies bail to a person who is accused of, but who has

not been tried nor convicted of murder, treason, or kidnapping among

other offences and in respect of whom the presumption of innocence

has not been displaced.

The Constitution:

53. Although Mr. Ducille had not raised the issue of the

constitutionality of subsection 4(2) of the Bail Act in the Supreme

Court, in the course of his submissions, Mr. Ducille raised the issue of

the constitutionality of that subsection in this court and, in accordance

with Article 28 (3) of the Constitution we heard his submissions.

54. It should be well known by now that since 7 January, 1964, The

Bahamas’ Constitution has contained provisions guaranteeing to

every person in The Bahamas, certain fundamental rights and

freedoms, among them, section 5 of the 1963 and 1969 Constitutions

(now Article 19 of the 1973 Constitution (“the Constitution”))

guaranteed protection from arbitrary arrest or detention. In addition,

Article 2 of the Constitution makes it plain that any statute or part of a

statute which is inconsistent with any provision of the Constitution is,

to the extent of the inconsistency, void - except where such a

provision is saved as an existing law under section 4 of the Order in

Council or an express saving provision in the Constitution itself.

55. As stated at paragraphs 56 to 60 inclusive, below, the

Parliament of The Bahamas has the power to enact laws for the

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peace, order and good government of The Bahamas including

abrogating the common law discretion of the Supreme Court,

provided it stays within the Constitution.

56. The Powers and Procedure of Parliament are set out in Part IV

of the Constitution. Article 52, which is the first Article in that Part,

reads as follows:

“52. – (1) Subject to the provisions of this Constitution, Parliament may make laws for the peace, order and good government of The Bahamas.

(2) Subject to the provisions of

Articles 60, 61, and 62 of this Constitution, the power of Parliament to make Laws shall be exercised by Bills passed by both Houses, either with or without amendment or with such amendments only as are agreed to by both Houses, and assented to by the Governor-General in accordance with Article 63 of this Constitution.” (Emphasis supplied)

57. In light of the presumption of regularity, and the increase in the

commission of serious criminal offences in The Bahamas in the

decade leading up to the enactment of the Bail Act and the

amendments in 1996, a court should approach the issue of the

validity of the Bail Act - like any other legislation enacted by

Parliament - firstly, as being done in the exercise of its legislative

powers; secondly, Parliament must be taken to have intended to

enact the Bail Act and the 1996 amendments to it in accordance with

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its Constitutional mandate to make laws for the “peace, order and

good government” of The Bahamas and thirdly, the Bail Act was

intended to be in conformity with the entrenched fundamental rights

provisions contained in Chapter III of the Constitution.

58. In order to displace the presumption of regularity which is to be

accorded to Acts of Parliament, a person who claims that Parliament

has exceeded its powers in enacting any statute or part of a statute,

must show that that is in fact so “beyond a reasonable doubt”.

59. In Attorney-General and Another v Antigua Times Ltd [1976]

AC 16 at page 32 D-E Lord Fraser of Tullybelton, in delivering the

judgment of the Privy Council said:

“In some cases it may be possible for a court to decide from a mere perusal of an Act whether it was or was not reasonably required. In other cases the Act will not provide the answer to that question. In such cases has evidence to be brought before the court of the reasons for the Act and to show that it was reasonably required? Their Lordships think that the proper approach to the question is to presume, until the contrary appears or is shown, that all Acts passed by the Parliament of Antigua were reasonably required. This presumption will be rebutted if the statutory provisions in question are, to use the words of Louisy J ‘so arbitrary as to compel the conclusion that it does not involve an exertion of the [taxing] power but constitutes in substance and effect, the direct execution of a different and forbidden power...’ ”

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60. In this case, Mr. Ducille’s submission, is that subsection 4(2) of

the Bail Act is so arbitrary as to compel the conclusion that it does not

involve the exertion of a legislative power but constitutes in substance

and effect the direct execution by the legislature of the judicial power.

I think there is merit in that submission for the reasons already given

at paragraph 42 above as well as the following paragraphs.

61. Article 19 (1) (c) and (d) of the Constitution read:

“19. – (1) No person shall be deprived of his personal liberty save as may be authorized by law in any of the following cases -

…(c) for the purpose of bringing

him before a court in execution of the order of a court;

(d) upon reasonable suspicion of

his having committed or of being about to commit, a criminal offence;…

(2) Any person who is arrested or

detained in such a case as is mentioned in sub-paragraph (1) (c) or (d) of this Article and who is not released shall be brought without delay before a court; and if any person arrested or detained in such a case as is mentioned in the said sub-paragraph (1)(d) is not tried within a reasonable time he shall (without prejudice to any further proceedings that may be brought against him) be released either conditionally or upon reasonable conditions, including in in particular such conditions as are reasonably necessary to ensure that he appears at a later date for trial or for

31

proceedings preliminary to trial.” (Emphasis added)

62. In Momodou Jobe’s case, cited above, Lord Diplock, in

delivering the judgment of the Privy Council set out the relevant parts

of section 15 of the Constitution of The Gambia which is in pari

materia with Article 19(3) of the Constitution quoted above. Having

done so, his Lordship, bearing in mind the specific provisions of

section 7 of the Special Criminal Court Act of The Gambia which

expressly provided for the speedy trial of cases of corruption by

public officials, concluded, at page 179H – 180A as follows:

“There is thus nothing in the Constitution which invalidates a law imposing a total prohibition on the release on bail of a person reasonably suspected of having committed a criminal offence, provided that he is brought to trial within a reasonable time after he has been arrested and detained. Section 7(1) of the Act which prohibits release on bail, not totally but subject to an exception if the magistrate is satisfied that there are special circum-stances warranting the grant of bail, cannot in their Lordships’ view be said to be in conflict with any provision of the Constitution.” (Emphasis supplied)

63. It is clearly not the situation in The Bahamas at this time that

criminal cases are tried as speedily as they ought to be for reasons

which need not be gone into in this judgment. For that reason,

among others, where a statutory provision like subsection 4(2) of the

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Bail Act purports to impose a total prohibition on the grant of bail to

persons charged with any of the offences listed in Part C of the First

Schedule, whether the applicant for bail is tried within a reasonable

time or not and whether or not there is sufficient evidence before the

court to enable the person to be committed to the Supreme Court for

trial would seem to be contrary to the spirit and words of Article 19(1)

and (3) of the Constitution.

64. In this regard, I have read and considered a number of decisions

from other countries in the Commonwealth on the construction of

their respective constitutional provisions which are in pari materia

with Article 19(3) of the Constitution but in the interests of time have

selected the following as of particular interest in regard to the issue

before this court in these appeals, since to include them all, would

make this judgment unduly long.

65. In Ngui v Republic of Kenya [1986] LRC (Const.) 308, the High

Court of Kenya, ruled that section 123(3) of Kenya’s Criminal

Procedure Code was unconstitutional because in cases of alleged

murder, treason and robbery or attempted robbery with violence, the

High Court’s discretion to grant bail if the circumstances warranted

such grant was taken away. That subsection of the Kenyan statute

read:

“The High Court may, save where a person is accused of murder, treason, robbery with violence or attempted robbery with violence direct that a person be admitted to bail or that bail required by a

33

subordinate court or police officer be reduced.”

66. At first glance the use of the word “may” in that section may be

taken to mean that the High Court of Kenya may have had a

discretion to grant bail in all cases except murder, treason and

robbery, or attempted robbery with violence. The High Court

nevertheless held that since the section purported to take away the

inherent jurisdiction of the High Court to grant bail in murder, treason

or robbery with violence cases, the provision was unconstitutional

and struck it down. That Court nevertheless refused bail on the facts

of the case, including the fact that conviction of robbery with violence

carried a mandatory sentence of death. At page 311, Simpson, CJ,

in giving the judgment of the High Court of Kenya said:

“We wish to add, however, that following the practice in Kenya prior to 10 November, 1978, and subject to the provisions of section 72(5) of the Constitution, bail as a general rule should not be granted where the offence charged carries a mandatory death penalty, so great is the temptation to abscond or ‘jump bail’ in such cases. This is the practice also in England in cases of murder although the death penalty has been abolished.

The applicant has applied to this Court

under section 84(1) for redress. We have no doubt therefore that we have jurisdiction to consider the question of bail on its merits. We have considered the age and health of the applicant. She suffers from ulcers and high blood pressure. For these

34

complaints she can be treated in prison or if necessary transferred to hospital under the usual safeguards. We see no sufficient justification for disregarding the general rule in considering applications for bail in offences carrying a mandatory death penalty and exposing the applicant to the temptation to ‘jump bail’. The application for bail is refused.

We feel strongly however that in all

such cases lengthy adjournments should be avoided and that the trial should continue from day to day until completed. Undue consideration should not be given to the convenience of advocates when the accused is facing possible death penalty.”

67. In Noordally v Attorney General and Another [1987] LRC

(Const) 599, the Supreme Court of Mauritius held that section 46(2)

of the Dangerous Drugs Act 1986 of that country which prohibited the

grant of bail to persons arrested on reasonable suspicion of having

committed an offence against that statute was unconstitutional

because it was inconsistent with section 5 of the Constitution of

Mauritius which guaranteed to every person in Mauritius freedom

from arbitrary arrest and detention.

68. At page 603 to 604, Moollan, CJ, in giving the judgment of the

court (in which Glover, J concurred) said:

“…The whole of our Constitution clearly rests on two fundamental tenets, the rule of law and the juxtaposition (or separation as it is more often called) of powers. More particularly, according to

35

section 10 and Chapter VII, the trial of persons charged with criminal offences and all incidental or preliminary matters pertaining thereto are to be dealt with by an independent judiciary. Only offences against disciplinary laws triable by Courts-Martial are excluded from this ambit. Even where the law makes provision for disciplinary offences to be within the jurisdiction of certain tribunals or service commissions, or where section 5 (1) (k) or 18 (1) of the Constitution permits the detention of persons in special circum-stances connected with the maintenance of law and order, any decision of those tribunals or commissions or a decision of a tribunal set up under section 5(4) or 18 (3) is judicially reviewable by the Supreme Court (sections 118 and 119) of the Constitution). We conclude therefore that it is not in accord with the letter or spirit of the Constitution, as it presently stands, to legislate so as to enable the Executive to overstep or bypass the Judiciary in its essential roles, namely those of affording to the citizen the protection of the law and, as guardian of the Constitution, to ensure that no person’s human rights or fundamental freedoms are placed in jeopardy.” (Emphasis added)

69. Noordally was referred to without disapproval in Devendranath

Hurnam v The State (Privy Council Appeal No. 53 of 2004) by Lord

Bingham of Cornhill who delivered the judgment of the Board in the

latter case.

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70. In The State v Abdool Rachid Khoyratty (Privy Council Appeal

No. 59 of 2004), both Noordally’s and Hurnam’s cases were again

referred to without disapproval.

71. Khoyratty’s case was about whether a purported amendment to

the Constitution of Mauritius which would have enabled the courts of

Mauritius, acting under a statute, to deny bail to persons charged with

specified dangerous drug offences was validly passed. The Privy

Council held that it was not validly passed as the procedure required

by the constitution of that country had not been followed and so the

amendment to their constitution did not have the effect contended for

by the state. The case for Khoyratty was that by removing from the

judges the power and duty to decide on matters of bail in relation to

offences prescribed by an Act of Parliament, section 2 of the 1994

Act was unconstitutional as it had not been passed in the manner

required by the constitution of Mauritius for amending the first section

of the Constitution.

72. In his reasons for agreeing with Lord Steyn who delivered the

judgment of the Board in Khoyratty’s case, Lord Rodger of Earlsferry,

in paragraph 25, pointed out that historically, the grant or withholding

of bail has been a matter for the judges of [Mauritius], but from 1986

onwards the legislature of that country had sought to exclude the

grant of bail in relation to certain offences.

73. At paragraph 28 of his reasons, Lord Rodger of Earlsferry

summarised the case for Khoyratty thus:

37

“…The case for the respondent was that, by removing from the judges the power and duty to decide on matters of bail in relation to offences prescribed by an Act of Parliament, section 2 of the 1994 Act really purported to amend section 1 of the Constitution. More particularly, it was designed to alter one of the well-understood components of a democratic state as envisaged in section 1, viz the separation of executive and judicial powers.”

At paragraph 30, Lord Rodger of Earlsferry concluded –

“30. I have come to the view that section 2 of the 1994 Act did indeed purport to make a fundamental, albeit limited, change to this component of the democratic state envisaged by section 1 of the Constitution. The crucial problem lies in the absolute nature of section 5(3A). Where applicable, it would completely remove any power of the judges to consider the question of bail, however compelling the circumstances of any particular case might be. By contrast, a provision, for example, that persons of the type envisaged in the subsection should not be admitted to bail unless in exceptional circumstances would not create the same problems because the judges would still have a significant, even if more restricted, role in deciding questions of bail and of the freedom of the individual. Unfortunately, however, as Mr. Guthrie QC stressed on behalf of the respondent, precisely because it is absolute in form and effect, subsection 5(3A) is liable to operate arbitrarily and so, it may well be, to create potential difficulties in relation to section 3(a) of the

38

Constitution. Moreover, there is a risk that by choosing to charge an offence which falls within section 32 of the Dangerous Drugs Act, the relevant agent of the executive, rather than a judge, would really be deciding that a suspect should be deprived of his liberty pending the final determination of proceedings. In these respects, the executive would be trespassing upon the province of the judiciary: Ahnee v DPP [1999] 2 AC 294, 303…” (Emphasis supplied).

74. Mr. Ducille submits that in enacting the new subsection 4(2) of

the Bail Act, Parliament has trespassed upon the province of the

Judiciary of The Bahamas in its essential role of affording to the

citizens of this country the protection of the law and that that is an

impermissible use of the legislative power. In my view, Mr. Ducille is

correct in that submission. However, the issue then arises as to

whether or not bail ought to have been granted by the judge in the

Supreme Court in any of these four cases, bearing in mind all of the

circumstances of the respective cases. I shall deal with that aspect

of the cases later.

75. In the State v Dlamini, Dladla and Others, Joubert and

Schietekat [2000] 2 LRC 239, the Constitutional Court of the Republic

of South Africa, held that the impugned statutory provisions which

prohibited the grant of bail except where such grant was “in the

interests of justice” did not contravene the Constitution of that

country.

39

76. At pages 291 to 292, Kriegler, J, who gave the judgment of the

Court summed up the effect of the judgment thus –

“(1) None of the provisions of the CPA impugned in the four cases before the court infringes the Constitution on any of the grounds advanced here.

(2) None of the provisions of the Constitution presents any major obstacle to the application of those impugned pro- visions.

(3) Bail as an institution is well known; so are its objectives and broad criteria. The advent of the Constitution and the adoption of the 1995 and 1997 amendments to s. 60 of the CPA properly construed, have provided a norm and guided the evaluation

process.

(4) Section 35 (1) (f) of the Constitution acknowledges that persons may be arrested and detained for allegedly having omitted offences but such arrestees are entitled to be released on reasonable conditions if the interests of justice permit.

(5) Deciding whether the interests of justice permit such release, and determining appropriate conditions, is an exercise to be performed judicially in accordance with the

procedure laid down in s. 60 of the CPA.

(6) Although a bail application is a formal court proceeding, it is relatively informal, inherently urgent and serves a uniquely interlocutory purpose distinct from that of

40

the trial; the issue is not guilt but where the interests of justice lie in relation to bail.

(7) In determining where the interests of justice lie, the essential exercise is to ascertain the relevant circumstances by using as guide the checklist of relevant factors against the grant of bail provided in sub-s (4), as particularized in sub-ss (5) to (8A), and of those for the grant of bail provided in sub-s (9).

(8). With regard to the factors both for and against the grant of bail, the checklist is not exhaustive, and the court has to consider any other relevant factor.

(9) In seeking to establish the presence of such factors the court is to act as proactively and inquisitorially as may be necessary.

(10) Having established all relevant factors, the court must weigh up the pros and cons of bail judicially, keeping in mind the possibilities of using appropriate conditions

to minimise possible risks.

(11) Where the public peace is a factor, ie where sub-ss (4) (e) and (8A) are invoked, the court should proceed with great caution and establish that the requisite exceptional

circumstances are indeed present.

(12) Likewise, where sub-s (11) (a) is involved, the court should be astute to ensure that the right to bail under s 35 (1) (f) of the Constitution is not rendered illusory by the effect of sub-s (14), the incidence of the onus and the need to adduce evidence.

41

The accused is entitled to a reasonable opportunity to establish exceptional circum- stances. The latter term holds no hidden meaning and is to be applied judicially.

(13) Although the accused’s guilt may be relevant in a bail application, evidence thereon should be confined to the central issue whether the interests of justice permit the release of that accused on bail. Abuse by the prosecution of the right to cross-examine on that issue may result in the evidence being excluded at trial.

(14) The record of bail proceedings is neither automatically excluded from nor included in the evidentiary material at trial. Whether or not it is to be excluded is governed by the principles of a fair trial.

(15) Bail serves not only the liberty interest of the accused, but the public interest by reducing the high number of awaiting trial prisoners clogging our already over-crowded correctional system, and by reducing the number of families deprived of a breadwinner…”

77. That decision is to be compared with the decision of the

Canadian Supreme Court in Regina v Morales (1993) 17 CR (4th) 74

(CSC) striking out the words “in the public interest or” from the

Canadian Criminal Code because those words were vague and

imprecise and a denial of bail based on them was not justified. In

their judgment the Canadian Supreme Court said that the words “in

the public interest” [created] –

42

“…A standardless sweep does not become acceptable simply because it results from the whims of judges and Justices of the Peace rather than the whims of law enforcement officials. Cloaking whims in judicial robes is not sufficient to satisfy the principles of fundamental justice… No amount of judicial interpretation would be capable of rendering [the term ‘public interest’] a provision that gives any guidance for legal debate.”

78. In Devendranath Hurnam v The State (Privy Council Appeal

No. 53 of 2004) Lord Bingham of Cornhill, in delivering the judgment

of the Board, after reviewing a number of decisions by the Mauritius

Supreme Court on that Republic’s Bail Act, said this:

“15. It is obvious that a person charged with a serious offence , facing a severe penalty if convicted, may well have a powerful incentive to abscond or interfere with witnesses likely to give evidence against him, and this risk will often be particularly great in drugs cases. Where there are reasonable grounds to infer that the grant of bail may lead to such a result, which cannot be effectively eliminated by the imposition of appropriate conditions, they will afford good grounds for refusing bail. The Board cannot, however, accept the criticism made of the earlier decisions in Labonne (JV) and Deelchand. The judgment in Rangasamy does not adequately recognise the general right to liberty enshrined in section 3(5) of the Constitution and reflected in section 3 of the 1999 Act. It seeks to reinstate, in part at least, the rule

43

deliberately discarded in the 1999 Act. It puts an onus on the detainee where it should be on the party seeking to deprive him of his liberty. It elides the general right to be released on bail and the right to be released if not brought to trial within a reasonable time, which are both important rights but distinct and different rights. The seriousness of the offence and the severity of the penalty likely to be imposed on conviction may well, as pointed out at the beginning of this paragraph, provide grounds for refusing bail, but they do not do so of themselves, without more: they are factors relevant to the judgment whether, in all the circumstances, it is necessary to deprive the applicant of his liberty. Whether or not that is the conclusion reached, clear and explicit reasons should be given.” (Emphasis added)

79. His Lordship then went on to refer to the Strasbourg

jurisprudence on the European Convention, “which recognizes that

the right to personal liberty, although not absolute (X v United

Kingdom (Application No. 8097/77, unreported, E Comm HR)), is

nonetheless a right that is at the heart of all political systems that

purport to abide by the rule of law and protects the individual against

arbitrary detention…”. His Lordship then continued at paragraph 16

of the judgment in Hurnam’s case thus:

“…The European Court has clearly recognised five grounds for refusing bail (the risk of the defendant absconding; the risk of he defendant interfering with the course of justice; preventing crime;

44

preserving public order; and the necessity of detention to protect the defendant)… But it has insisted that a person must be released unless the state can show that there are ‘relevant and sufficient reasons’ to justify his continued detention… The Euro- pean Court has, realistically, recognised that the severity of the sentence faced is a relevant element in the assessment of the risk of absconding or re-offending… but has consistently insisted that the seriousness of the crime alleged and the severity of the sentence faced are not, without more, compelling grounds for inferring a risk of flight… In Ilijkov v Bulgaria… para 81, the Court repeated ‘that the gravity of the charges cannot by itself serve to justify long periods of detention on remand.’

It went on, para 84, to reiterate

‘that continued detention can be justified in a given case only if there are specific indications of a genuine requirement of public interest which, notwithstanding the presumption of innocence, outweighs the rule of respect for individual liberty. Any system of mandatory detention on remand is per se incompatible with article 5(3) of the Convention…’ (Emphasis supplied)

Thus a statutory prohibition on the grant of bail in a limited class of very serious cases was conceded by the United Kingdom in Caballero v United Kingdom (2000) 30 EHRR 643, para 20, to violate the Convention…

45

The compatibility with the Convention of the amendment enacted to remedy this violation was considered by the Queen’s Bench Divisional Court in R(O) v Crown Court at Harrow [2003] 1 WLR 2756.” (Emphasis added).

80. Harrow’s case was reviewed by the House of Lords in 2006 in a

decision handed down on 26 July, 2006 [2006] UKHL 42. The issue

in that case was whether the extension of the statutory time limit for

detaining a person reasonably suspected of crime pending trial was

in breach of article 5(3) of the European Convention for the Protection

of Human Rights and Fundamental Freedoms if a defendant was still

held in custody by virtue of the operation of section 25 of the Criminal

Justice and Public Order Act 1994 of the United Kingdom. In that

case, their Lordships concluded, in effect, that section 25 should be

read down so as to bring it into conformity with article 5(3) of the

European Convention.

81. In these appeals, Mr Gaskin submits that subsection 4(2) of the

Bail Act should also be “read down” or construed and applied

essentially as a guide to the proper operation of the Bail Act in those

cases to which it applies so as to bring it into conformity with Article

19(3) of the Constitution. I do not think that I can accept that

submission because in my view the very words used in subsection

4(2) of the Bail Act are clear; there is no ambiguity which would

require me to read that provision down so as find, for example, that

where there are exceptional circumstances, bail may be granted.

Furthermore, to do so, in my judgment would not amount to the

46

interpretation or construction of the subsection as it presently stands,

but would amount to redrafting it. That is something I am not

prepared to do since a judge has no power to legislate substantive

law or to change the plain words used by Parliament in the exercise

of its legislative power. However, a judge has the power under Article

2 of the Constitution to decide whether legislation passed by

Parliament is consistent with the Constitution and if it is not, the

judge, as guardian of the Constitution, should say so in accordance

with that Article.

82. While section 4 of the Bail Act as originally promulgated did not

absolutely prohibit the grant of bail in murder and other serious cases

by Justices of the Supreme Court, as re-cast in 1996, subsection 4(2)

does just that, that is, it absolutely prohibits the grant of bail in

murder and armed robbery cases, even where an accused person is

not tried within a reasonable time; that subsection, in my judgment, is

therefore in conflict with Article 19 (3) of the Constitution and as a

result it is void and of no effect and the 1995 decisions in the Beneby

and Lockhart cases mentioned above are not precedents on which

the interpretation of the new subsection 4(2) of the Bail Act can be

based. I hold therefore, that the judges of the Supreme Court and

this Court have a discretion whether or not bail should be granted,

even in cases where a person is detained pending trial for offences

which fall within Part C of the First Schedule to the Bail Act.

83. That, however, is not the end of the matter because the

discretion that the judges have must be exercised judicially as well as

judiciously, and as pointed out by Chief Justice Simpson in Ngui’s

47

case, and Lord Bingham in Hurnam’s case, the discretion of the

judges is to be exercised in accordance with well established

principles, including the likely penalty which may be imposed on

conviction as an indicator of the likelihood of a detained person

absconding while on bail. And as Lord Bingham pointed out in

Hurnam’s case, the Strasbourg jurisprudence recognizes that in

considering whether to release a person accused of serious crimes

(like those in Part C of the First Schedule to the Bail Act), a judge

may refuse bail on five grounds – the risk of the accused absconding;

the risk of the accused interfering with the course of justice;

preventing crime, preserving public order and the necessity to protect

the accused – and, in addition, the judge should recognise that the

severity of the penalty if convicted, is a matter to bear in mind when

considering whether an applicant for bail may abscond or re-offend if

granted bail. A judge should also bear in mind the character or

antecedents of an applicant for bail when considering whether or not

to grant bail to that applicant – see R v Phillips and H M Post Master

General v Whitehouse cited in paragraph 29 above.

84. Bearing those principles in mind, I turn now to consider the

appeals against the grant of bail to the remaining three respondents

in these appeals.

Bradley Ferguson:

85. The facts relied on by the prosecution in their objection to the

grant of bail to Bradley Ferguson (“Ferguson”) as noted earlier, are

set out in the judgment of the Honourable Justice Osadebay.

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86. The prosecution argued that in view of those facts as well as

the gravity of the offences and the severity of any sentence if

convicted, it was not reasonable to release Ferguson on bail in those

circumstances. The learned judge nevertheless granted bail.

87. The Attorney General appealed to this court against the grant of

bail to Ferguson pursuant to section 8A (1) of the Bail Act.

88. Bearing in mind the facts as set out by Justice Osadebay,

particularly the fact that during Ferguson’s retrial a key prosecution

witness complained of an attempt to prevent the witness from

testifying against Ferguson, albeit there is nothing to suggest that

Ferguson authorised the person who confronted that witness to do

so, required the learned judge to weigh very carefully, all aspects of

the application before deciding to grant bail in such a case.

89. I wish to emphasize that it is incumbent on the prosecution to

proceed with the prosecution in Ferguson’s case - as in all cases

where the liberty of the subject is at issue - with all due expedition

bearing in mind that it is a re-trial and the decision of the Privy

Council in Bell v Director of Public Prosecutions [1985] AC 937,

[1986] LRC (Const.) 392, where it was said that where a re-trial has

been ordered by an appellate court, the need for expedition in

prosecuting the re-trial means that a shorter time frame would be

considered reasonable .than if it were a first trial of, for example, a

complicated fraud case.

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90. In the result, bearing in mind all the circumstances of the case, I

agree with Osadebay JA that the Attorney General’s appeal should

be allowed and the bail granted by the learned judge revoked.

Consequently, the retrial should be prosecuted expeditiously.

Kermit Evans:

91. As indicated earlier, I adopt the summary of the facts in Kermit

Evans’ case (“Evans”) as set out in the judgment of Osadebay, JA.

92. Evans was in fact released on bail despite the notice of appeal

by the Attorney General having been given to the court within the 2-

day period stipulated by section 8A of the Bail Act. That should not

have been done since it sends quite the wrong message to persons

who are minded to follow a life of crime. It also undermines respect

for the courts and the administration of justice. I hope that that action

was carried out inadvertently.

93. What is even more disturbing is that the learned judge in

granting bail to Evans made one of the conditions of Evans’ bail that

he “is to have no contact with any witness in this matter”, which

suggests that the learned judge considered that there was reason to

think that Evans might do just that, otherwise there would be no need

to include such a condition.

94. The inclusion of that condition in itself shows that the learned

judge erred in law and on the facts in granting bail – see for example

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the passage from Lord Bingham’s judgment in Hurnam’s case cited

above.

95. In my judgment the Attorney General’s appeal against the grant

of bail to Evans should be allowed. The bail granted by Stephen

Isaacs J is therefore revoked and Evans is to be detained only for a

reasonable time pending his trial or proceedings preliminary to trial

for the offence of armed robbery. Consequently, the Attorney

General’s office is obligated to prosecute the case against Evans with

all due expedition.

Kenton Deon Knowles:

96. According to the summary of the facts in Osadebay JA’s

judgment, Kenton Deon Knowles (“Knowles”) not only has a history of

convictions for firearms offences, he in fact eluded the police for

approximately a year before he was arrested for the murder of his

nephew.

97. In addition, the learned judge, in granting bail to Knowles found

it necessary to require him to surrender his passport, to forbid him

leaving the country without the court’s leave and also prohibited him

from interfering with the prosecution witnesses “directly or indirectly”.

98. Bearing in mind the history of the exercise of judicial discretion

in murder cases set out above, the antecedents of Knowles, the very

fact that the judge who granted him bail found it necessary to forbid

him interfering with any prosecution witness, demonstrate, in my

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judgment, that bail ought not to have been granted by the learned

judge unless it was clear to him that Knowles could not be tried within

a reasonable time.

99. I would therefore have allowed the Attorney General’s appeal

against the grant of bail to Knowles and revoked that bail. As in the

cases of Ferguson and Evans, I would have reminded the

prosecution that it is their duty to prosecute the case against Knowles

with all due expedition as the refusal of bail is not final and he has a

constitutional right to be tried within a reasonable time. However,

before this judgment could be delivered, we learned that Knowles

was discharged following the close of the prosecution’s case in the

preliminary inquiry so that our conclusion will no longer affect the

charge of murder that had been laid against him. The principles

outlined in relation to Knowles’ case would be applicable to similar

cases.

100. I cannot leave this judgment without commenting on the

apparent escalation and brazenness of attempts (some of which have

apparently been too successful) to intimidate a witness or witnesses

for the prosecution and would point out that it is public knowledge

since 1984 when a witness who gave evidence to the Royal

Commission of Inquiry mentioned earlier had his face blow-torched,

that some prosecution witnesses in this small country now need

protection from persons accused of serious crimes or the latter’s

colleagues or relatives. It should be clear to everyone concerned with

the proper administration of justice in this country that where threats

are made against a witness or witnesses, then the administration of

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justice will be adversely affected. If should also be clear that if the

state does not make adequate provision for the safety of persons it

intends to call as witnesses for the prosecution, with the pervasive

effect of other cultures that is evident in the day to day experience of

the courts in this country, there is a greater likelihood that attempts

will be made to interfere with the course of justice by seeking to

intimidate witnesses, especially where the likely sentence if convicted

may extend to the imposition of a life sentence or a discretionary

death penalty, or where a considerable quantity of dangerous drugs

such as cocaine is involved.

Rt. Hon. Dame J. A. Sawyer, P.