Glasford et Al v Commissioner of Police
| Jurisdiction | Saint Kitts and Nevis |
| Judge | Floissac, C.J.,Liverpool. J.A.,Singh, J.A. |
| Judgment Date | 09 January 1995 |
| Neutral Citation | KN 1995 CA 1 |
| Docket Number | Civil Appeal No. 8 of 1994 |
| Court | Court of Appeal (Saint Kitts and Nevis) |
| Date | 09 January 1995 |
Court of Appeal
Floissac, C.J., Liverpool and Singh, JJ.A.
Civil Appeal No. 8 of 1994
Mr. L.L. Moore, Q.C., Mr. K.A.H. Foster Q.C. and Dr. H.L. Browne for the appellants.
Mr. F. Phipps, Q.C., Ms. C. Phipps and Mrs. J. Joinder (D.P.P.) for the respondents.
Criminal law - Bail — Appeal against decision of trial judge refusing the application for bail for the appellants — Whether judge's decision is an order made in a criminal cause or matter from which an appeal lies — S. 31 WIASSC No. 17 of 1975 — Application for bail satisfies the conditions cited in R v. Blandford Magistrates Court [1991] 1 ALL E.R. 218 — No appeal therefore lies.
Constitutional law - Application for bail does not presuppose a contravention of the applicant's fundamental right to personal liberty — Section 5(1) of constitution — No application made for redress for violations of any provisions of the constitution — Applications therefore were not made, heard or determined in pursuance of s. 18 of the Constitution — Appeal dismissed.
Between the 7th and 11th October 1994, the appellants individually applied to the High Court for writs of habeas corpus for their release from custody. During the pendency of these applications, the appellants were charged with the offence of conspiracy to murder Vincent Morris and Joan Walsh. Whereupon the appellants applied to a judge in chambers for their admission to bail. The application for bail was heard by Hylton, J. and on 19th October 1994, the learned judge delivered a written ruling or decision refusing the application. The appellants are dissatisfied with that decision and have appealed against it.
Counsel for the respondents objected to the hearing of the appeal on the ground that there is no right of appeal from the learned judge's decision. Counsel submitted that this Court is denied jurisdiction by section 31 of the West Indies Associated States Supreme Court (Saint Christopher Nevis and Anguilla) Act No. 17 of 1975 (the Supreme Court Act) which deals with appeals from the High Court in civil matters. Subsection 3(a) of section 31 provides that:
“No appeal shall lie under this section –
(a) from any order made in any criminal cause or matter …”
The preliminary objection therefore raises questions as to whether the learned judge's decision is an order made in a criminal cause or matter and whether and to what extent section 31(3)(a) of the Supreme Court Act is modified by the Constitution (the Constitution of Saint Christopher and Nevis as set out in schedule 1 to the Saint Christopher & Nevis Constitution Order 1983 – Imperial Order 1983 No. 881).
The principles which govern the question whether an order was made in a criminal cause or matter were authoritatively stated in the decisions of the House of Lords in Clifford and O'Sullivan (1921) 2 A.C. 70 and Amand v. Secretary of State for Home Affairs [1943] A.C. 147. According to these decisions, there appear to be three preconditions of an order made in a criminal cause or matter. The first precondition is that at the time of the filing or hearing of the application on which the order was made, a charge of crime punishable by a fine, imprisonment or otherwise had been or was about to have been preferred against the applicant or some other person. The second precondition is that the application involved consideration of that charge of crime. The third precondition is that the direct outcome or result of the application was or might have been the applicant's or other person's trial and possible conviction and punishment by a court or judicial tribunal having or claiming jurisdiction to try, convict and punish for that crime.
An order refusing bail satisfies those three preconditions. In R v. Blanford Magistrates' Court [1991] 1 All E.R. 218, Taylor, L.J. (delivering the leading judgment of the English Court of Appeal) said (at p. 222):–
“There can be no possible ground for describing an order granting or refusing bail to a defendant as collateral to the criminal proceedings as was held in relation to the estreatment of the surety's bail in Green's case. The grant or refusal of bail to a defendant in criminal proceedings is an integral part of the criminal process.”
For these reasons, I am satisfied that the order by way of refusal of the appellants' application for bail was an order made in a criminal cause or matter. The result is that unless the Constitution otherwise prescribes, the learned judge's decision is unappealable by virtue of section 31(3)(a) of the Supreme Court Act.
The Supreme Court Act is an existing law for the purposes of paragraph 2 of schedule 2 to the Constitution Order (Imperial Order 1983 No.88). According to paragraph 2(1):
“The existing laws shall, as from 19th September 1983, be construed with such modifications, adaptations, qualifications and exceptions as may be necessary to bring them into conformity with the Constitution and the Supreme Court Order.”
This means that section 31(3)(a) of the Supreme Court Act must be construed with such modifications, adaptations, qualifications and exceptions as may be necessary to bring it into conformity with section 98 of the Constitution. Section 98 provides as follows:
“Subject to section 36, an appeal shall lie from decisions of the High Court to the Court of Appeal as of right in the following cases –
(a) ….
(b) final decisions given in the exercise of the jurisdiction conferred on the High Court by section 18 (which relates to the enforcement of the fundamental rights and freedoms);… “
The decisions appealable by virtue of section 98(b) of the Constitution are final decisions given by the High Court in the exercise of the jurisdiction conferred upon it by section 18 of the Constitution. Subsections (1), (2) & (3) of section 18 provide as follows:–
(1) If any person alleges that any of the provisions of sections 3 to 17 (inclusive) has been, is being or is likely to be contravened in relation to him (or, in the case of a person who is detained, if any other person alleges such a contravention in relation to the detained person), then, without prejudice to any other action with respect to the same matter that is lawfully available, that person (or that other person) may apply to the High Court for redress.
(2) The High Court shall have original jurisdiction –
(a) to hear and determine any application made by any person in pursuance of subsection (1); and
(b) to determine any question arising in the case of any person that is referred to it in pursuance of subsection (3)
and may make such declarations and orders, issue such writs and give such directions as it may consider appropriate for the purpose of enforcing or securing the enforcement of any of the provisions of sections 3 to 17 (inclusive):
Provided that the High Court may decline to exercise its powers under this subsection if it is satisfied that adequate means of redress for the contravention alleged are or have been available to the person concerned under any other law.
(3) If in any proceedings in any court (other than the Court of Appeal or the High Court or a court-martial) any question arises as to the contravention of any of the provisions of sections 3 to 17 (inclusive), the person presiding in that court may and, if any party to the proceedings so requests, shall refer the question to the High Court unless, in his opinion, the raising of the question is merely frivolous or vexatious.”
3 to 17 inclusive of the Constitution enumerate and define the fundamental rights and freedoms of persons in the Federation of Saint Christopher and Nevis and section 18 prescribes judicial redress and other forms of judicial enforcement and protection of those rights and freedoms. According to section 98(b) of the Constitution, the High Court may be said to have exercised the jurisdiction conferred upon it by section 18 of the Constitution if and only if it heard and determined an application made in pursuance of the said section 18. An application may be said to have been made in pursuance of section 18 if and only if the applicant (acting on his own behalf or on behalf of a detained person) alleges a contravention or threatened contravention of his or the detained person's fundamental right or freedom and applies for a prescribed form of judicial enforcement or protection of that right or freedom.
In U.S. Government v. Bowe [1989] 3 All E.R. 315, the Privy Council was required to consider section 104(1) of the Bahamian Constitution (which is similar to section 98 of the Constitution in issue) and to relate that section to section 28(1) & (2) of the Bahamian Constitution (which is similar to section 18(1) & (2) of the Constitution in issue). Delivering the judgment of the Board, Lord Lowry said (at p. 333):
“Their Lordships, however, find themselves in complete agreement with the conclusion of Smith, J.A. that the Supreme Court was not exercising the special jurisdiction under art 28 of the constitution and that the fugitive had no right of appeal under art 104(1).”
Lord Lowry gave five reasons for the Board's decision. The first reason was that the fugitive's applications were for orders of certiorari and prohibition pursuant to R.S.C. Ord 53 and were not made under or in pursuance of article 28(1). The second reason was that the majority of the Court of Appeal of the Commonwealth of the Bahamas gave “no effect whatever to the proviso to article 28(2).” The third reason (at p. 333) was that “It was fallacious reasoning to import art 28 merely because the arrest and proposed extradition of the fugitive involved interference with his freedom of movement.” The fourth reason was that the cases relied on by the fugitive were distinguishable. The fifth reason was an echo of the first...
To continue reading
Request your trial