Bail revoked — technical breach but no injustice

The Court of Appeal has advised magistrates that in future, in circumstances where they are exercising their discretion to revoke bail, they should ask the accused person whether there is any reason he/she could advance why bail should not be refused or revoke, before arriving at a decision. The Court gave such directions on Thursday last, after dismissing Garfield Christopher’s appeal in spite of finding  a “technical breach” of the Constitution in the circumstances of the case. However, the Court comprising  Chief Justice Sat Sharma, Justice Margot Warner and Justice Anthony Lucky found that  breach “caused no injustice to the appellant  (Christopher).” The Court also chided the appellant’s attorney W Campbell for bringing this constitutional motion which was an abuse of process.  Further, the Court did not grant a declaration nor did it make an order as to costs. On January 14, 1999, Christopher was arrested and charged with four counts of serious indecency. On the same day he was granted bail with a surety in the sum of $120,000 by a Justice of the Peace.  On January 22, 1999 when he appeared at the Point Fortin Magistrates’ Court, the magistrate revoked his bail and advised him of his right to apply to a judge in chambers for bail. On January 29, 1999, he was granted bail by a judge in the same amount.

Christopher spent seven days in custody as a result of the revocation of bail by the magistrate.  For this, he filed a constitutional motion claiming that his rights were breached — that he was deprived of due process, because he was not given an opportunity to be heard before his bail was revoked and because the magistrate did not given him any reasons why his bail was revoked. The magistrate said she revoked the bail because she wanted to have Christopher’s record  traced and secondly, that she suspected that the surety was a professional bailor. The magistrate said she told Christopher the first reason but not the second. Christopher said no reasons were given. In an 11-page judgement delivered by Justice Lucky, the Court recognised that the crux of the appeal was whether there was a denial of natural justice. It said that the right to be heard is not a right to make a successful submission but an opportunity to present an argument which may or may not be favourable to a person’s case or application. “Fairness demands that all the circumstances of a case must be considered.”
Lucky said: “The important point to remember in this case is that the learned magistrate gave the appellant the reason for revoking his bail. It is easy to infer that if in these circumstances, he had anything to say he would have done so. “ The crucial issue in my opinion is whether there was a denial of a right to be heard. The failure, however, in my judgment,  to enquire of him whether he wished to be heard, was a technical breach in the circumstances of this case which caused no injustice to the applicant.”

In considering what relief, if any,  should be granted, the Court said that it was clear from the reason given by the magistrate, that she was entitled to refuse bail on the grounds stated. And nothing has been advanced by Campbell by way of legal submission or evidence, which may have caused the magistrate to change her mind. Therefore, Christopher is not entitled to compensation for loss of liberty. Justice Lucky pointed out that Campbell had conceded in his skeleton argument and orally before the Court, that the appropriate remedy was really to move for judicial review, however in view of the delay which had occurred, he had resorted to the Constitution. Lucky added: “This, in my view, was clearly an abuse of process. The constitution  is not to be regarded as a last resort when all else has failed. “This is a discretionary remedy which has to be exercised judicially. Considering all the circumstances of this case I do not propose to grant a declaration and in my view of the special circumstances will make no order as to costs.”