Keros Martin and six others v Director of Public Prosecutions (Trinidad and Tobago)

Section 108(c) of the Constitution of Trinidad and Tobago gives a right of appeal where the High Court determines a constitutional question concerning the due-process right protected by section 4(a), or whether legislation has infringed a right contrary to section 5(1). It does not create a general appeal from the merits of a bail decision. Refusing bail for just cause, after the accused has received access to the High Court and due process, applies acknowledged rights to the facts. The Bail (Amendment) Act 2024 supplies a statutory appeal route and a fresh bail regime. An appellate court should not decide a new statutory ground de novo where the lower court had no opportunity to consider it.

These conjoined appeals arose from refusals by the High Court of Trinidad and Tobago to grant bail to persons charged with murder before the Bail (Amendment) Act 2024 came into force. The Court of Appeal majority held that it lacked jurisdiction under the proposed constitutional routes; Boodoosingh JA dissented on section 108(c). One appeal, concerning Sahadeo, became moot after acquittal. The remaining appellant, Keros Martin, appealed to the Privy Council, relying on section 108(c) and arguing that the 2024 Act conferred a retrospective right of appeal. The central questions were whether the Constitution supplied an appeal from the merits of the High Court bail decision and whether the Board should determine the new statutory ground.

Appeal dismissed. The Board agreed with the majority of the Court of Appeal that section 108(c) did not confer jurisdiction over these appeals.

1. Meaning of section 108(c). The provision must be read in the context of section 108 as a whole. Its neighbouring provisions concern interpretation of the Constitution, redress for constitutional contraventions, specified constitutional questions, and contempt. Section 109(1)(d) reinforces that the constitutional appeal routes can lead to the Privy Council. The scheme is directed to cases where it is constitutionally important that an appeal exist, not to ordinary civil or criminal decisions which affect liberty or property.
2. Constitutional question required. The relevant question is whether due process was afforded under section 4(a), or whether legislation infringed a protected right contrary to section 5(1). The wording does not require both provisions to be engaged; the reference to them is disjunctive. Section 108(c) may therefore apply to a constitutional question arising from either provision.
3. Bail merits distinguished. The constitutional right to liberty is qualified by due process, and section 5(2)(f)(iii) recognises reasonable bail subject to just cause. An accused who can apply to the High Court has received due process. A High Court refusal of bail for just cause determines the application on its merits. It does not determine whether a constitutional right was infringed, and therefore does not attract a constitutional appeal. A constitutional question would arise if the accused alleged denial of one of the section 5(2)(f) processes, or if legislation purported to abrogate those protections.
4. 2024 Act. The Act now provides a right of appeal from a bail decision by a High Court Judge or Master and permits a fresh application on exceptional circumstances. The Board noted that this route is available to persons whose earlier applications were refused, without proof of changed circumstances. It declined to decide whether the amendment operated retrospectively. The issue had not been considered by the Court of Appeal and involved no error in its decision; deciding it de novo was inappropriate.

The Board therefore dismissed the appeal.

• Privy Council: dismissed the appeal.
• Court of Appeal of the Republic of Trinidad and Tobago: the majority, comprising Bereaux JA and Wilson JA, held that the court lacked jurisdiction; Boodoosingh JA dissented.
• High Court of Trinidad and Tobago: Brown-Antoine J refused Martin's bail application in June 2022. The Court of Appeal dismissed his appeal on 31 May 2023.