Attorney General v Ferguson, Evans, Stubbs and Knowles

• Jurisdiction: Bahamas
• Judge: Longley, J.A.
• Judgment Date: 21 May 2009
• Neutral Citation: BS 2009 CA 35
• Docket Number: SC Criminal Bail Application No. 57 of 2008; No. 106 of 2008; No. 108 of 2008; No. 116 of 2008
• Court: Court of Appeal (Bahamas)
• Date: 21 May 2009

Court of Appeal

Sawyer, P.; Osadebay, J.A.; Longley, J.A.

SC Criminal Bail Application No. 57 of 2008; No. 106 of 2008; No. 108 of 2008; No. 116 of 2008

Attorney General

and

Ferguson, Evans, Stubbs and Knowles

Appearances:

Mr. Gaskins for the appellants.

Mr. Ducille for the respondents.

Criminal practice and procedure - Bail — Grant of bail where no pending appeal against conviction.

Longley, J.A.

1 These four conjoined appeals against the grant of bail by judges of the Supreme Court are brought by the Attorney General pursuant to the amendment to the Bail Act (Ch. 103) (the Act) which is now embodied in section 8A of the Act. Prior to the amendment, this court had no jurisdiction in such cases to hear appeals against the grant of bail where there was no pending appeal against conviction (see Austin Knowles v. Superintendent of Her Majesty's prison Fox hill [2005] 1W.L.R. 2546).They raise simultaneously and once again in this jurisdiction, but for the first time in this court, the question of the extent to which parliament is enabled to limit or restrict the jurisdiction of judges of the Supreme Court to grant bail under the provisions of the Act as amended.

2 By the terms of the Act when an appeal is lodged against a grant of bail, the order for bail is suspended, which has the effect of keeping detained a person who has been granted bail if he has not already been released. Three of the respondents, who were all charged with murder are all presently in custody pursuant to the Act, and the fourth, Kermit Evans, who was charged with armed robbery, was apparently released before the appeal of the Attorney General was filed.

3 Murder and armed robbery are offences contained in part C of the first schedule to the Act. Section 4(2)(a) of the Act provides “Notwithstanding any other enactment, a person charged with an offence mentioned in Part C of the First Schedule shall not be granted bail.” Section 4(2)(b) denies the right to bail of persons convicted of certain offences and who give notice of an intention to appeal.

4 For completeness, section 4(1) of the Act provides as follows; (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, 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.

5 On its face, therefore, section 4(2)(a) of the Act appears to prohibit not only the judiciary but the magistracy from granting bail to one charged with either the offence of murder or armed robbery. In each of the cases on appeal the judge granted bail, presumably, purporting to do so on the basis that a discretion existed, notwithstanding the mandatory nature of the provisions of section 4(2)(a) of the Act. The Attorney general now appeals contending, essentially, that the judge had no power to grant bail under the Act because the refusal of bail was mandatory in the circumstances, the respondents being charged with Part C offences of the first schedule of the Act. The respondents counter that the judiciary has discretion to grant bail in all cases and to the extent the Act seeks to take away that discretion it is unconstitutional.

6 It is important to note in the context of this case that no constitutional motion was brought in the court below to declare the provision of the Act unconstitutional. However Article 28(3) of the constitution provides that if a constitutional issue is raised in any court other than the SC or Court of appeal that court shall refer the matter to the SC. Since the constitutionality of the Act has been raised in this court we have jurisdiction to pronounce upon it.(see Bowe and Davis v. R [2006] 1 W.L.R. 1623)

7 The first question which naturally arises in this case and in these circumstances is whether a law which provides for pretrial detention and mandates ‘that bail shall not be granted’ in certain specific circumstances contravenes the provisions of article 19 of the constitution that a detained person be released if he is not tried within a reasonable time. On its face because it is absolute it means that no matter how compelling may be the circumstances for the release of a person detained because he was charged with such an offence, the total prohibition against the grant may operate arbitrarily. The respondents contend that Article 19 of the constitution grants a constitutional guarantee against arbitrary arrest and detention and that to the extent the Act mandates a refusal of bail it is inconsistent with the provisions of the constitution. They rely on State of Mauritius v. Khoyratty [2007] 1 A.C. 80(Khoyratty) a decision from Malaysia and a local decision Beneby decided by Hall, J. (as he then was). As I understood the argument, it is that precisely because section 4(2)(a) of the Act is absolute in form and effect, it is liable to operate arbitrarily and so, it is contrary to article 19 of the Constitution.

8 This to my mind in reality is truly the crux of the matter. Is it permissible for parliament, given the constitutional backdrop, to legislate so as to mandate the refusal of bail to one charged with any offence?

9 This is an issue that has been raised in a number of decisions some of which were cited in the cases decided locally. The first case to be considered is the attorney general of Gambia v. Momodou Jobe [1984] 3 W.L.R. 174(Jobe) where the Privy Council had to consider the constitutionality of the following provision for bail.: ‘Any person who is brought to trial before the court shall not be granted bail unless the magistrate is satisfied that there are special circumstances warranting the grant of bail’. The court held that the provision did not violate the Gambian equivalent of article 19 of the Bahamian constitution. At pages 179–180 of the report, Lord Diplock said,

‘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 is arrested and detained.’

10 The provision which the court had to consider in Jobe did not impose a total prohibition against the grant of bail and so lord Diplock's views were expressed obiter. But, as I understand the decision, the Privy Council was making clear that, in order to be constitutionally valid, a law that imposed a total prohibition against the grant of bail to a person arrested and detained on suspicion for having committed a criminal offence, had also to make provision for such a person to be tried within a reasonable time.

11 This was the position taken by the High Court of Kenya in Ngui v. the Republic [1985] KLR 268, [1986] LRC (const) 308(Ngui). There the court had to consider in a case of murder where bail had been refused, the constitutional validity of the following provision ‘The high court may, save where a person is accused of murder treason etc.., direct that a person be admitted to bail or that bail required by a subordinate court or a police office be reduced’. The court held that that provision was inconsistent with the Kenyan equivalent of article 19 (3) of the Bahamian constitution because the section prohibited the grant of bail of persons charged with the offences of murder etc, even where the person was not tried within a reasonable time. The court therefore used its powers under the constitution to sever the impugned provision by removing from the section in question the offences mentioned. The result was that the court had power to grant bail in all cases.

12 Jobe and Ngui were considered by SawyerJ. (as she then was) in the local case of Beneby v. Commissioner of police [1995] BHS No.51(Beneby 2). There she had to consider inter alia the constitutional validity of the then section 4 of the Act which read” 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) In comparing that provision with the challenge provisions in Jobe and Ngui she made the following observations at page 22 of the judgment ‘It will be seen from a comparison of section 7(1) of the Gambia Act with section 4 of the Act that they have a kind of affinity. On the other hand in Ngui v. Republic of Kenya [1986] L.R.C. (Const.) 308, (Ngui) the impugned provision was s. 123(3) of Kenya's Criminal Procedure Code which provided as follows:– “The High Court may, save where a person is accused of murder, treason, robbery with violence or attempted robbery with violence directed that a person be admitted to bail or that bail required by a subordinate court or police officer be reduced”. That code takes away the discretion of the High Court in such cases. The High Court of Kenya held that provisions to be ultra vires the Kenya equivalent to Article 19 (3) of the constitution but nevertheless refused bail since the offence with which the applicant was charged carried a mandatory death penalty. In light of the statement of Lord Diplock in the case of Momodou Jobe cited above, I refuse to follow the Kenyan decision since the impugned section of...