Denying bail is denying justice

Not surprisingly, the Minister of National Security has also contributed his parochial view that the new bail proposal “will decrease the murder rate dramatically”. The Government, the public and the media have been content to assume that any policy which increases the risk of arrest, the likelihood of imprisonment or the length of a prison term will result in a decrease in crime. However, nothing could be further from the truth.

Indubitably, crime is the most salient issue in TT, but automatically denying bail to anyone who’s been charged with a firearm offence will only result in a placated public, which has only been a crime-reducing strategy during riots.

Superior Court of Los Angeles County Judge, Jacqueline Nguyen once opined that “intentionally meting out pre-trial punishment for charged, but unproven crimes . . . is without question, a violation of due process principles.”

Section 5(2)(f) of our Constitution is explicit in stating that a person charged with an offence has a right not to be denied “reasonable bail without just cause”, which are the likelihood to abscond; commit another offence; and/or witness intimidation. It’s not subjective; ergo, it cannot be capriciously altered.

It’s extremely important not only to understand the definition of bail, but to understand its purpose. Bail is the procedure by which a judge or magistrate allows an accused person to be released from custody until their trial. Bail is not a fine and it is not supposed to be used as punishment. There are several theories behind bail: innocent people should not be imprisoned; detention without trial violates the rule of law; it is expensive to keep people in prison; it can be a financial hardship on the defendant’s family if the defendant is unable to work; and those remanded into custody are afforded less of an opportunity to prepare their case, and so are more likely to be convicted.

Many countries have already dealt with this issue and the same sentiment is shared: detention prior to conviction is a serious infringement of the constitutional rights of accused persons, and none condone the inexplicable and substantial diminution of the presumption of innocence. The difficulty of honouring the presumption of innocence was noted in United States-v-Salerno (1950), which highlighted the fact that the presumption of innocence protects the innocent, and the shortcuts we take with those whom we believe to be guilty, injure only those wrongfully accused.

The case that will nullify this no-bail law is Hurnam-v-The State (Mauritius) [2005], where the Privy Council elucidated its position on the issue of bail denial: “The seriousness of the offences and the severity of the penalty likely to be imposed on conviction may ... provide grounds for refusing bail, but they do not do so of themselves ... clear and explicit reasons should be given.” This means that a defendant who petitions for a writ of habeas corpus will have a good chance of success based on this precedent if it reaches the Privy Council.

In TT, the procedure for a firearm offence requires that the weapon undergoes forensic testing before the hearing. Conversations and enquiries with senior TTPS officials, criminal attorneys, friends at the DPP’s office, and contact made with the Trinidad and Tobago Forensic Science Centre on Tuesday 13 January 2015, unanimously confirmed that the time period for forensic reports to be completed is protracted. Forensic reports being done within 120 days is a rarity, and the process is generally known to take up to a year. For example, Sherwin Waldron and Sheldon John were arrested in September 2012 for firearm possession in San Fernando, but when the matter was called on 6 January 2014, the report was still not ready! Nevertheless, the process can be expedited depending on the severity of the charge (eg murder), legal influence, or in even rarer cases, the court can summon the forensic analyst or director, as was done in the aforementioned case.

But really, who is the AG really trying to fool with this mass incarceration plot to punish criminal scapegoats? Is it me, or is this a state-of-emergency d?j? vu?