The Privy Council has dismissed an appeal filed by the office of the Attorney General regarding the provision of bail in the instance of murder.
In a statement issued July 28, the Office of the Attorney General and Ministry of Legal Affairs (AGLA) said the matter of the Attorney General of Trinidad And Tobago v Akili Charles (No. 2)  UKPC 31 is significant to the issue of bail for persons charged before our Courts with serious offences.
“This issue was most recently canvassed before the Parliament on the 4th and 6th of July, 2022. The ruling provides a judicial determination of the discretion of our Courts to the grant of bail for this country’s most grievous offence of murder.
“It upheld and agreed with our local Court of Appeal’s recent decision that persons accused of murder are entitled to apply for bail; in so doing the Privy Council has endorsed the judgment of the Court of Appeal of Trinidad and Tobago previously delivered on the 17th February 2022, has quoted significantly from the Court of Appeal judgment and accepted the correctness of Court of Appeal’s orders in granting relief.”
The AGLA added that the ruling determined that the provisions contained in section 5(1) and the First Schedule of the Bail Act, 1994 are not existing law so as to be saved from constitutional challenge and, were not reasonably justifiable under the Constitution of Trinidad and Tobago.
“The Nation will recall the undertaking of the Honourable Attorney General given during the Senate debate of the Bail Amendment Act on July 6th 2022, to approach the Cabinet and Parliament in the near future with comprehensive legislative bail reform.
“Bail systems and laws secure not only the attendance of accused persons to their matters before the courts but also simultaneously, work alongside, other crime fighting initiatives to, among other things, secure the safety of individual witnesses, the community and society as a whole from the threat of dangerous persons and repeat offenders.”
The AGLA said it’s currently carrying out a comprehensive system of bail reform, with the focus being “to encompass legislation that will secure the rights of all citizens of Trinidad and Tobago and, to take into account the views of key stakeholders and experts, including criminologists, in order to ensure properly drafted legislation formed from the foundation of a socio-psychological and criminological basis”.
“It is significant that whilst not accepting as lawful a blanket denial of bail for the offence of murder the Ruling nevertheless accepts that instead of removing the court’s discretion altogether, legislation could in fact be implemented to impose conditions on the exercise of the court’s discretion to grant bail or where a stricter approach is required, “sufficient cause” could be shown.
“This is in fact the approach taken by this Government when it recently sought to extend Act 17 of 2019 which provides for the denial of bail in certain specified instances whilst maintaining the Court’s discretion to grant bail in “exceptional circumstances”.
The AGLA said it’s committed to the rule of law and to “uphold individual Constitutional rights, whilst appropriately balancing the overarching interest of keeping members of our society secure in their homes and in going about their livelihood”.
The AGLA said the ruling also highlights and accepts further some “fundamental considerations that have been previously espoused by this Government on the issue of bail, that”:
“1) the aim of the Bail Act and its’ provisions encompasses the dual function of “prevention of crime and disorder”;
2) the reduction of violent crime and the minimisation of the risk to public safety posed by repeat offenders are legitimate public policy concerns;
3) there is a concern that the courts have been too liberal in granting bail to repeat offenders;
4) there was the need to ensure that persons charged with murder do not abscond and that they do not interfere with witnesses or otherwise obstruct the course of justice;
5) the objectives listed above at 1-4 “are sufficiently important to justify the limitation of a fundamental right and in particular, the right to liberty”;
6) insofar as the Government had concerns about the Court’s approach to bail a more nuanced approach may have been through the imposition of “…conditions on the exercise of the court’s discretion rather than by removing it altogether… [as was] adopted in the Bail Act in section 6”;
7) Courts must be especially “respectful” of Parliament’s choice to use the provisions contained in section 13 of the Constitution “to pass legislation in that form and must give great weight to the judgment of Parliament regarding the importance of the public interest which is sought to be promoted” [; and
8) the separation of powers is not a principle which can provide an independent basis for the invalidation of legislation.”
In the judgement, given on July 28, 2022, the Board said:
“In the light of the Board’s conclusion that the appeal should be dismissed it is not necessary to address the respondent’s further argument that the Bail provision usurps a core judicial function and is not consistent with the separation of powers guaranteed by section 1 of the Constitution. The Board would, however, reiterate what was stated in relation to the Constitution in Chandler v The State of Trinidad andTobago (No 2)  UKPC 19 at para 81:
“‘The separation of powers is not a free-standing, legally enforceable principle that exists independently of and above a Constitution. It is a principle that has informed the drafting of a Constitution and operates through the terms of a Constitution. In other words, it is a principle which is relevant to the interpretation of the 1976 Constitution but provides no basis independent of the Constitution for invalidating legislation'”.
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