Attorney General of Trinidad and Tobago v Akili Charles (Trinidad and Tobago)

A statutory blanket prohibition on bail for anyone charged with murder is not protected as an existing law where the pre-constitutional common law and legislation preserved a superior court’s discretion to grant bail. Under section 13(1) of the Constitution of Trinidad and Tobago, rights-infringing legislation is tested by proportionality, with a heavy burden on the complainant and special weight given to Parliament’s assessment of the public interest. Important crime-prevention aims and a rational connection do not suffice. Where less intrusive controls could meet those aims, and a blanket rule produces arbitrary and severe consequences without individual judicial assessment, fair balance is absent. The murder-bail prohibition was therefore not reasonably justifiable.

The respondent was charged with murder and remained in custody for nearly eight and a half years before being discharged at a preliminary inquiry. He brought a constitutional motion challenging section 5 and Part 1 of the First Schedule to the Bail Act 1994, which prevented courts from granting bail to persons charged with murder.

Charles J dismissed the claim, holding principally that the provision was existing law. The Court of Appeal allowed the appeal, holding that it was neither existing law nor reasonably justifiable under section 13 of the Constitution, and made declarations of unconstitutionality. The central issues before the Board were whether the provision was saved by section 6 and, if not, whether it was validated by section 13.

Disposition. The Board dismissed the appeal on both the existing-law and section 13 issues. Permission for the Interested Party to cross-appeal was refused.

1. Existing law. At common law, the High Court retained a discretion to grant bail in murder cases before or after committal. Post-committal bail was rarely granted because of the seriousness of the offence, the strength of the evidence and the likely punishment, but the jurisdiction remained alive. The Board relied on R v Spilsbury [1898] 2 QB 615, and explained the effect of R v Chapman, (1838) 8 C & P 558, R v Barronet & Allain, (1852) 1 El & Bl 1, and Re Barthelemy, (1852) 1 El & Bl 8.
2. Statutory position. Section 31 of the Indictable Offences (Preliminary Enquiry) Ordinance 1917, re-enacted as section 32 of the Criminal Law (Amendment) Ordinance 1961, conferred a broad power on the Supreme Court or a judge to grant bail whether or not the accused had been committed for trial. Sections 27(1)(c) and (d) regulated the magistrate’s powers and did not expressly or by necessary implication remove the superior court’s jurisdiction. The Board held that Krishendath Sinanan v The State [1992] 44 WIR 359 was wrongly decided on this issue.
3. Section 13. Following Suraj and others v Attorney General of Trinidad and Tobago [2022] UKPC 26, the proviso in section 13(1) required an adaptable proportionality inquiry. The complainant bore a heavy burden, and the super-majority procedure required especially respectful consideration of Parliament’s judgment about the public interest.
4. Application. Preventing murder, violent and repeat offending, absconding and interference with witnesses were sufficiently important objectives, and detention was rationally connected to them. However, the existing judicial practice already addressed those risks. Conditions or a more controlled discretion could have been used instead of a legal prohibition. The blanket rule applied indiscriminately, potentially before committal and without individual judicial assessment, and infringed significant rights including liberty, reasonable bail without just cause and protection against arbitrary detention. Its severe consequences outweighed the public interest, so fair balance was absent and the provision was disproportionate.
5. Further matters. Evidence about international practice and remand conditions was potentially relevant but unnecessary to decide the appeal. The separation of powers was not an independent basis for invalidating legislation, although it informed constitutional interpretation. Magistrates’ lack of an equivalent discretion involved no unconstitutionality.

• Privy Council. In [2022] UKPC 31, the Board dismissed the Attorney General’s appeal and refused permission for the Interested Party’s cross-appeal.
• Court of Appeal of the Republic of Trinidad and Tobago. On 17 February 2022, the Court allowed the respondent’s appeal, held that the Bail provision was not existing law and was not reasonably justifiable under section 13, and made declarations of unconstitutionality.
• High Court. On 9 March 2021, Charles J dismissed the respondent’s constitutional claim, principally holding that the Bail provision was existing law. The section 13 issue was not determined.