Thelston Brooks Applicant v Attorney General The Commissioner of Police Respondents

• Jurisdiction: Anguilla
• Judge: George-Creque, J
• Judgment Date: 15 January 2007
• Judgment citation (vLex): [2007] ECSC J0115-11
• Court: High Court (Saint Christopher, Nevis And Anguilla)
• Docket Number: CLAIM NO. AXA HCR 2006/0089
• Year: 2007
• Date: 15 January 2007

In the matter of a Bail Application by Thelston Brooks

and

In the matter of COP-v-Thelston Brooks for Murder

Between:

Thelston Brooks

Applicant

and

The Attorney General

The Commissioner of Police

Respondents

[2007] ECSC J0115-11

CLAIM NO. AXA HCR 2006/0089

THE EASTERN CARIBBEAN SUPREME COURT

IN THE HIGH COURT OF JUSTICE

(CRIMINAL)

AD 2007

1 George-Creque, J.: On 18^th December, 2006 I heard an application for bail made on behalf of the Applicant, a youngster who had recently turned his 17^th birthday, and who is resident and domiciled in Anguilla. He was arrested and charged on 11^th November, 2006 with the offence of murder of another youngster who allegedly died from stab wounds following an incident which occurred sometime during the day prior, somewhere in or in the vicinity of the Ronald Webster Park following an inter-school football match. He was thereafter held on remand at Her Majesty's Prison in The Valley, Anguilla, there being no detention facilities for juveniles in Anguilla save and except the said prison which houses the general population of Anguilla's prisoners as well as other persons on remand.

George-Creque, J

2 On 21^st December, 2006 I made an order directing the Magistrate to admit the Applicant to bail on the terms and conditions stipulated in the order and indicated then that my reasons for so doing would be given in writing later given the importance of the matter not only to the applicant but to the community of Anguilla as a whole. I now do so.

3 A review of section 67 of the Magistrate's Code of Procedure Act1 which deals generally with the right of accused persons to bail appears to me to be an appropriate starting point. Section 67 states as follows:

'(1) Where the offence with which the accused person is charged is an offence punishable with a fine or with imprisonment for any term not exceeding 2 years, the accused person is entitled (my emphasis) to be admitted to bail as is hereinafter mentioned.

(2) Where an offence with which an accused person is charged is an offence, other than an offence mentioned in subsection ( 1) or (3), the Magistrate may (my emphasis) in his discretion admit the accused to bail as hereinafter provided.

(3) The Magistrate shall not (my emphasis) admit to bail any person charged with treason or murder.

(4) A Judge of the High Court may order the Magistrate to admit a person to bail in any case.'

4 From this section it is clear that as the gravity of the offence and or the punishment increases, so does the limitation on the Magistrate's powers culminating in the total prohibition in respect of the offences of murder and treason. For the offence of murder

which was previously punishable by death2 the power to admit an accused to bail is vested in a judge of the High Court and is discretionary.

5 The Applicant, by his application, sought the exercise of that discretion in his favour for an order that he be admitted to bail on certain conditions. Generally, the prevailing practice is a denial of bail where the applicant is charged with murder which, following the abolition of the death penalty3 now carries, on conviction, a mandatory sentence of life imprisonment. It was and is thus, one of the most serious offences under the law.

6 The Applicant cited the basis for his application as being his constitutional right to liberty, and the presumption of innocence in reliance on sections 1, 3 and 9 of the Schedule to the Anguilla Constitution Order, 19824 ("The Constitution"). Chapter 1 of the Constitution, in like manner as the constitutions of many other post – colonial Commonwealth countries in the Caribbean, deals with the fundamental rights and freedoms of persons protected thereunder. It is useful to set out, in part, those sections of The Constitution on which the Applicant relied.

7 Section 1 set out in general, the fundamental rights and freedoms of an individual and says in essence, that, subject to the rights and freedoms of others and the public interest, every person in Anguilla has the right, inter alia, to life, liberty, and the protection of law.

8 Section 3 then details the protection of the right to personal liberty and states in part as follows:

"3 (1) No person shall be deprived of his personal liberty save as may be authorised by law in any of the following cases, that is to say —

(a) ………

(b) ………

(c) ……….

(d) ……….

(e) ……….

(f) upon reasonable suspicion of his having committed or of being about to commit a criminal offence under the law of Anguilla;"

9 Section 3(5) goes on to state as follows:

"(5) Where any person is brought before a court …….. upon suspicion of his having committed ….. an offence, he shall not be thereafter further held in custody in connection with ………that offence save upon the order of a court."

10 Section 9 details the provisions designed to secure the protection of law. Section 9(5) specifically encapsulates the time immemorial common law doctrine of the presumption of innocence and states that "Every person who is charged with a criminal offence shall be presumed to be innocent until he is proved or has pleaded guilty."

11 The notion that the provisions of the Constitution and in particular those provisions in which those fundamental rights and freedoms are enshrined are to be given a generous and purposive construction so as to ensure that those rights are meaningful, may now be taken as trite law.

12 Accordingly, the exercise of a judge's discretion in admitting an accused person to bail calls for a balancing of the scales by weighing the interests of an accused person and his fundamental rights as guaranteed under the Constitution on the one hand, and the interest of the rights and freedoms of others and the public interest, being the sole qualifications on the said rights, on the other. Lord Bingham of Cornhill in delivering the opinion ("the Opinion") of the Privy Council inDevendranath Hurnam v The State [2005] UKPC 495 on appeal from the Supreme Court of Mauritius, succinctly stated the proposition thus: "..the courts are routinely called upon to consider whether an unconvicted suspect or defendant should be released on bail, subject to conditions pending his trial. Such decisions very often raise questions of importance both to the individual suspect or defendant and to the community as a whole. The interest of the individual is of course to remain at liberty unless or until he is convicted of a crime sufficiently serious to justify depriving him of his liberty. Any loss of liberty before that time, particularly if he is acquitted or never tried will inevitably prejudice him and in many cases his livelihood and his family. But the community has a countervailing interest in seeking to ensure that the course of justice is not thwarted by the flight of the suspect or defendant or perverted by his interference with witnesses or evidence and that he does not take advantage of the inevitable delay before trial to commit further offences"

13 It is to be noted that Sections 3, 5, and 10 (2) of Chapter II of the constitution of Mauritius under consideration inHurnam's case bear close analogy to Sections 1, 3 and 9 (5) respectively of The Constitution. It is also to be noted that Anguilla does not have a Bail Act similar to the 1989 or the 1999 Acts of Mauritius also under discussion in Hurnam. However, the common law of England where the principles and practice relating to bail are centuries old was expressly brought into force in Anguilla6 and by virtue of Section 8 of the Eastern Caribbean Supreme Court (Anguilla) Act the jurisdiction of the High Court is to be exercised in accordance 'with the Criminal Procedure Act and any other law in force in Anguilla'. This embraces the common law. Furthermore, the courts, in the absence of specific legislation relating to bail, have in practice followed the principles set out in UK legislation relating to Bail.

14 InNoordally -v- Attorney General7 decided prior to the 1989 Bail Act of Mauritius it was stated that the proper test of whether bail should be granted or refused was whether the defendant will appear for trial and is not to be withheld merely as a punishment. This principle is as applicable now as it was centuries ago.

15 The Judicial Committee took the opportunity to consider and opine on other cases decided by the Supreme Court of Mauritius as well as by the European Court of Human Rights relating to the guiding principles to be adopted in the exercise of the discretion in the granting of bail to a suspect or a defendant.

16 In respect of the decisions in a line of cases beginning withJogessur -v- the DPP8, including Dhooky -v- DPP9 and Boolaky -v- DPP10 and decided after the 1989 Bail Act where, notwithstanding the courts? recognition of the discretion to grant bail, went on to express that the grant of bail in such cases was said to be contrary to 'invariable practice' (Jogessur) or 'well established practice' (Dhooky) or 'never allowed' (Boolaky) the Learned law lords opined that the court's discretion was in practice all but emasculated. They also pointedly noted, that the judgments in those cases made no reference to the general right to liberty, the specific right contained in section 5 (analogous to section 3 of The Constitution) or to the presumption of innocence.

17 Lord Bingham at paragraph 15 of the Opinion went on to say as follows: "It is obvious that a person charged with a serious offence facing a severe penalty if convicted may well have a powerful incentive to abscond or interfere with witnesses likely to give evidence against him….. Where there are reasonable grounds to infer that the grant of bail may lead to such a result which cannot be effectively eliminated by the imposition of appropriate conditions, they will afford good grounds for refusing bail."

18 In the said Opinion, it was...