Dear Editor: Accused murderers are not ENTITLED to bail—they’re just allowed to request it

“[…] People seem to think that this latest ruling means that all persons charged with murder in Trinidad and Tobago will automatically be granted bail. This is not so. 

“The Court’s judgement merely means that persons charged with murder in T&T may now apply for bail…”

The following Letter to the Editor discussing reactions to a recent decision by the Appeal Court was written by Akeem Lopez, LLB (Hons):

A recent decision by the Court of Appeal in the matter of Akili Charles vs the Attorney General has understandably spawned concern among the population. But it is an overreaction, based on ignorance rather than informed appreciation of the existing realities.

People seem to think that this latest ruling means that all persons charged with murder in Trinidad and Tobago will automatically be granted bail. This is not so. The Court’s judgement merely means that persons charged with murder in T&T may now apply for bail.

Bail refers to pre-trial release in criminal proceedings. Generally, a magistrate or judge has the discretion to determine whether to grant an accused person bail. However, prior to the Court of Appeal’s ruling section 5(1) of the Bail Act of 1994 expressly prohibited the granting of bail to persons charged with murder.

In the instant case, Charles was charged with murder in December 2010 and spent nine years on remand before being freed in 2019. He challenged the constitutionality of section 5(1) of the Bail Act. The Court notably held that the prohibition on bail for murder is unconstitutional as it breaches the separation of powers doctrine.

In our country, there are three branches of government: the Legislature, the Executive and the Judiciary. The doctrine of the separation of powers essentially means that these three arms of government must not encroach on each other’s functions.

In The State v Khoyratty [2006] UKPC 13, the Privy Council deemed a prohibition on bail by a constitutional amendment to be unlawful as this amounted to a breach of the separation of powers doctrine. The reason for this is that the granting or refusal of bail is essentially a judicial function.

In the Akili Charles case, the Court of Appeal agreed with this and concluded that the prohibition on bail for murder breached the separation of powers doctrine.

What the court’s ruling has done is made it possible for persons charged with murder to have their applications considered by the court, which will then make a determination about whether or not bail should be granted.

Any such determination will depend on the nature and seriousness of the offence, the character and social ties of the defendant, the defendant’s record with respect to the fulfilment of his obligations under previous grants of bail, the strength of the evidence against the defendant, all other relevant factors and, ultimately, whether the defendant will appear to take his trial.

Notably, T&T is not the only Caribbean country to have taken this position. Just over ten years ago, in Nation v DPP (unreported), the Supreme Court of Jamaica made a similar ruling.

I am of the firm view that the Court of Appeal’s decision is a welcomed one for three reasons. Firstly, in societies such as ours where there is an inherent overlap between the Legislature and the Executive, the functions of the independent Judiciary ought to be guarded jealously.

Secondly, the judgement upholds the principle of the presumption of innocence, that is, that a person charged is deemed innocent until proven guilty.

Thirdly, the court has now balanced the prosecution of serious offences with the injustice that may occur when persons accused of murder face inordinate pre-trial detention periods.

An important takeaway is that the fears about the negative impact of the Appeal Court’s decision on the numbers of ‘criminals’ who will be walking the streets next week, next month or next year are completely unjustified.

The Chief Justice, who presided over the panel which came up with the Akili Charles judgement, has sought to offer comfort with these words:

“It does not follow that there will suddenly be a mass exodus of persons currently on remand from the prisons. In many, if not most instances, it would still be appropriate to deny bail, having regard to the considerations set out in the Bail Act.”

So, T&T,  we should let not our hearts be troubled.