William Herbert v Commissioner of Police of the Royal Anguilla Police Force
| Jurisdiction | Anguilla |
| Judge | Moise, J. |
| Judgment Date | 07 June 2024 |
| Judgment citation (vLex) | [2024] ECSC J0607-1 |
| Docket Number | CLAIM No. AXAHCV2024/0028 |
| Court | High Court (Saint Christopher, Nevis And Anguilla) |
In the Matter of Section 9 of the Bail Act, 2021
In the Matter of a Ruling and Consequent Orders of the Hounourable Magistrate Piyumini Weeratunga Made and Delivered on 10th May 2024 Denying Bail to the Appellantand Issuing a Warrant of Remand
His Lordship, The Honourable Justice Ermin Moise
CLAIM No. AXAHCV2024/0028
EASTERN CARIBBEAN SUPREME COURT
IN THE HIGH COURT OF JUSTICE
(CIVIL)
Mr. Thomas Astaphan KC and Mrs. Tonae Simpson Whyte for the Appellant
Mr. Theon Tross for the Respondent
This is an appeal against the learned magistrate's decision to deny bail to the appellant. The appeal was not opposed, and the court therefore granted bail in accordance with section 3 of the Bail Act 1. However, some of the issues raised on appeal were such that the court thought it important to put its decision in writing and undertook to do so.
In summary, the appellant was jointly charged with his father for two offences under the Firearms Act 2. Those were charges of possession of firearms without a user's license and for manufacturing firearms without being the holder of a manufacturing license. On 10 th May, 2024, the appellant and the co-accused were taken before the magistrate at which point the police prosecutor objected to bail. It is apparent from what has been presented to me that no evidence was led by the prosecutor in relation to the objections. Much of what had been presented to the learned magistrate came from the bar table. The prosecutor intimated that the appellant had strong ties to Saint Kitts and is also a boat captain and therefore, there is strong likelihood of him absconding whilst on bail. The co-accused was none-the-less granted bail, for reasons which are not entirely clear to this court. This appellant was denied bail.
The learned magistrate provided written reasons for her decision. She referenced section 3(1)(a) of the Bail Act and took into account the fact that the nature of the alleged offences was serious. She decided that the appellant was “a young person with 2 complaints relating to illegal firearms where his own protection and well-being in the circumstances would be of concern to the court”. Apart from the appellant's youth, there is nothing here to explain precisely what evidence was used to come to that conclusion. Although the learned magistrate took into consideration the appellant's constitutional right to liberty, she went on to note that “there was a public outcry lately about the need for more serious actions from the law-enforcement authorities for offences related to illegal guns and ammunition in making society safe for everyone.”
This is the full extent of the reasons presented to the court for the denial of bail.
Insofar as it relates to circumstances in which the magistrate denies bail to a defendant, sections 7 to 10 of the Bail Act refer at times to an application before the High Court and at other times to an appeal. In stating that the magistrate is obligated to give reasons for her decision to deny bail, section 7 goes on to state that the “…[c]ourt shall, in order to enable the defendant to make an application in the matter to a Judge of the High Court, give reasons for refusing bail or for imposing or varying the conditions. Section 8 states that “where a Magistrate's Court refuses to grant bail to a defendant who is not represented by counsel, the Court shall inform him of the right of appeal conferred by section 10.” In section 9 the Act states that “a defendant to whom section 8 applies may appeal to a Judge of the High Court on notice to the Attorney General.”
In the circumstances of this case, the appellant was represented before the magistrate. However, insofar as section 10 of the Act is concerned the following is stated:
(1) Where a Magistrate's Court refuses bail in criminal proceedings or imposes conditions on the grant of bail in criminal proceedings, the Judge in the High Court may grant or refuse bail or vary the conditions .
(2) In granting bail under subsection (1), the Judge in the High Court may direct the defendant to appear at a time and place which the Magistrate's Court could have directed and the recognizance of any surety shall be conditioned accordingly .
Read in conjunction with section 8 (despite the appellant having been represented at the bail hearing before the magistrate) it would seem that what has been presented by section 10 of the Act is a right of appeal. However, in such circumstances, based on the language of section 10, the appeal does not necessarily limit the judge to a review of the learned magistrate's decision. The section empowers the judge to grant or refuse bail or to vary the conditions. The judge is therefore entitled to consider the application de novo. However, given the circumstances of this case, it is also important to highlight some basic principles relating to the conduct of bail hearings, whether before this court or the magistrate. This would assist in providing some guidance on the conduct of bail hearings in the future.
As the Learned Magistrate rightly pointed out, the starting point here is to appreciate that the refusal of bail amounts to a derogation of the constitutional right to liberty. This is a right to which every citizen, resident or visitor to Anguilla is entitled and is not one which ought to be taken lightly. In the case of Thelston Brooks v. The Attorney General of Anguilla 3 the following was noted:
“… 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.”
In the case of Phillip Stephens v. The DPP 4, the Supreme Court of Jamaica made the following observation at paragraph 9:
“It is common these days to hear attorneys say that the Bail Act creates a right of bail. I am not sure why this is said. It seems to me that the starting point has to be the Constitution of Jamaica… The liberty of the subject is such a fundamental right that the framers of the constitution thought that it should not be left to implication but rather should be expressly protected… the fact that this right has received the highest level of protection possible in a legal system which is located in a constitutional democracy with a written constitution, then any derogation from such a high ranking right must be justified by very, very cogent reasons.”
One cannot underscore enough the importance of the right to personal liberty. In liberal democracies such as ours, this right is afforded one of the highest-ranking protections in our legal system. The constitution creates an avenue to balance that level of protection against the public interest. However, what it does not do is create a police state where there is no burden on the crown to prove, within the requisite standard, that the person's liberty should be taken away prior to a conviction. Insofar as it relates to the role of the court, magistrates and judges must not pay lip service to this right. It is important to consider protecting the public against those who persistently and violently commit crimes. But the court must never shy away from its duty to properly and accurately interrogate the evidence so as to ensure that its processes are not abused and that these fundamental rights to which the citizen is entitled are not taken for granted.
In the case of Stewart Joseph v. The DPP 5 the court of appeal of Jamaica stated as follows:
[10] The judgment of Brooks JA in Huey Gowdie v R [2012] JMCA Crim 56 has laid down the methodology for bail applications. His Lordship stated that bail applications are to proceed in a coherent, rational and systematic way. The application must be carefully considered and reasons given for the refusal or grant of bail .
[11] The primary reasons for this systematic approach are (a) the fundamental rule is that prima facie every person is entitled to liberty and (b) every person is presumed innocent until found guilty whether by trial or plea. These fundamental norms are now guaranteed rights in the Charter of Rights. Indeed, under the new bill of rights, it is expressly stated that any person awaiting trial and detained in custody shall be entitled to bail on reasonable conditions ‘unless sufficient cause is shown for keeping him in custody’ (my emphasis) .
The court went on to state the following at paragraph 15:
“The consequence is that no citizen has to justify why he should be free. The common law established this and now the constitution provides for this. The burden is on those who want to deny him his fundamental human right to liberty to show why he should not be granted his freedom. The Jamaican Constitution of 1962 was based on the European Convention on Human Rights which itself came out the terrible conditions found in the death camps operated by the Third Reich of Nazi Germany and its allies and collaborators. The Europeans wanted to lay down base line conditions which should be met before a person is been deprived of his liberty....
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