Itesha Huggins Applicant v [1] The Commissioner of Police [2] DPP Respondents [ECSC]
| Jurisdiction | Saint Kitts and Nevis |
| Judge | Ramdhani J |
| Judgment Date | 14 November 2013 |
| Judgment citation (vLex) | [2013] ECSC J1114-1 |
| Court | High Court (Saint Kitts and Nevis) |
| Docket Number | CLAIM NO. SKBHCV2013/0239 |
| Date | 14 November 2013 |
IN THE EASTERN CARIBBEAN SUPREME COURT
IN THE HIGH COURT OF JUSTICE
A.D. 2013
CLAIM NO. SKBHCV2013/0239
Application for Bail — The Bail Act No. 18 of 2012 St Kitts and Nevis — Principles applicable to the grant of bail — The statutory test for the grant of bail in certain cases — Presumption of bail applicable in certain cases — Approach to be taken by the Magistrate on an application for bail — Reasons for the grant or refusal of bail to be provided by the court.
The applicant in this case, a nursing mother of an infant, was arrested by the police of charges of Larceny and taken before the magistrate where, on objections by the prosecution, bail was refused. There was no evidence that the magistrate had provided reasons for the refusal of bail, and by the time the application was heard by the High Court, the applicant had already been in custody for over 14 days. Before the High Court, bail was objected to on the grounds that the applicant, having had two previous convictions which was part of one transaction, was likely to commit further offences while on bail, and further, having regard to evidence that she has been difficult to locate after the report was made to the police, she should be considered a flight risk.
Held, granting bail to the applicant subject to conditions considered sufficient to ensure her attendance at trial:
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(1) The test for refusing bail to an applicant in acase where the offence is punishable with a term of imprisonment, and where the matter does not fall in the schedule to the Bail Act, is that there must be substantial grounds for believing that one of the statutory exceptions to bail is applicable.
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(2) The Bail Act 2012 must be interpreted and applied so as to be consistent with provisions of sections 5 and 10 of the Constitution of St Kitts and Nevis relating to the presumption of innocence, and the presumptive right to be granted bail in cases such as the present. Accordingly, if the grant of bail is to be denied on the grounds that the defendant will commit other offences of bail, or will otherwise seek to pervert the course of justice, the court should approach the question with greater stringency than if the question was simply one whether, if granted bail he would turn up for his trial.
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(3) In this case, the fact that an applicant had two previous convictions for similar offences flowing from one transaction was not a substantial ground to believe that she would commit other offences while on bail. Further, the fact that she could not be located by the police, after the offence had been reported, was not sufficient to ground any belief in the circumstances of this case, that she was aflight risk.
Ramdhani J (AG.): On the 10th September 2013, I heard this application for bail that was filed on the 4th September 2013. I granted bail to the applicant subject to certain conditions, and to be taken before the magistrate. I informed both parties that I would be providing my reasons in writing. These are my reasons.
This was an applicant who was charged with two counts of Stealing. By the time the application came before the court, this applicant had already spent 14 days in prison, having been denied bail by the magistrate on the 27th August, 2013. Having regard to the fundamental right to liberty, and the presumption of innocence, both guaranteed by the constitution, the court became concerned in the manner in which the application may have been dealt with by the magistrate. This concern together with the fact that St Kitts and Nevis is now governed by a new Bail Act has persuaded me to set out those principles which the court consider to be applicable to the grant of bail in this jurisdiction when persons arebrought before the Magistrate's Courts charged with offenses punishable wi'lh imprisonment, as well as to add a few words regarding the approach which should be adopted by the magistrate in like cases for bail.1
A useful starting point is section 10 of theSt. Kitts and Nevis Constitution, the relevant portion of which provides that:
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"(1) If any person is charged with a criminal offence, then, unless the charge is withdrawn, the case shall be afforded a fair hearing within a reasonable time by an independent an impartial court established by law.
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(2) Every person who is charged with acriminal offence
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(a) shall be presumed to be innocent until he is proven guilty or has pleaded guilty;
…."
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Regard should also be had to section 5 of the Constitution, which provides protection for the right of personal liberty. It statesinter alia that:
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(3) Any person who is arrested or detained
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(a) ….
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(b) upon reasonable suspicion of his having committed, or being about to commit, acriminal offence under any law and who is not released, shall be brought before a court without undue delay and in any case not later than seventy two hours after his arrest or detention.
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(4) Where any person is brought before a court in execution of the order of the court in any proceedings or upon suspicion of his having committed or being about to commit acriminal offence, he shall not be thereafter further held in custody in connection with those proceedings or that offence save upon anorder of the court.
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(5) If any person arrested or detained as mentioned in subsection (3) (b) is not tried within a reasonable time, then without prejudice to any further proceedings that may be brought against him, he shall be released either unconditionally or upon reasonable conditions, including in particular such conditions as are reasonably necessary to ensure that he appears at a later date for trial or for proceedings preliminary to trial, and such conditions may include bail so long as it is not excessive.
The combined effect of section 10 and section 5(4) of theSt Kitts and Nevis Constitution is that everyone who is charged with a criminal offence is to be presumed innocent and should be tried within a reasonable time, and is to be released pending his trial unless the court orders otherwise. The constitutional intent of Section 5(4) is to prevent arbitrary detention. The European Court of Human Rights interpreting the equivalent to section 5, namely Article 5 of the Human Rights Act 1998 have often emphasized the:
"…fundamental importance of guarantees contained in Article 5 for securing the rights of individuals in a democracy to be free from arbitrary detention at the hands of the authorities… In that context it has been repeatedly stressed that any deprivation of liberty must not only have been effected in conformity with substantive and procedural rules of national law but must equally be in keeping with the very purpose of Article 5, namely to protect the individual from arbitrary detention."2
The constitution does not set out those principles upon which the court is to act in the refusal of bail. Accordingly the court is entitled to draw upon the common law or any relevant statutory provision. If the fundamental rights are to be given effect, whatever principles the courts should apply should be sufficiently clear and precise so as to avoid risks of arbitrariness3, otherwise different courts could approach these issues in a less than judicial manner,4 leading possibly to arbitrariness.
Before the 18th of May 2012, bail in this jurisdiction was governed generally by a number of provisions found in separate pieces of legislation. Among these are the provisions to be found in Part XI of the Magistrate's Code of Procedure Act, which contain some general rules as to the power of the magistrate to grant bail to persons on the entering into recognizance with or without sureties. There is also section 17 of the Juvenile Act Cap. 4: 15, which guides the magistrate in the grant of bail to juveniles. There are also sections 92 and 93 of the Criminal Procedure Act, Cap. 4:06, which speak to the power of both the Magistrate's Court and the High Court to grant bail generally on recognizance's with or without sureties.
Today in this jurisdiction, the grant or refusal of bail is primarily governed by anew Bail Act, which became law on the 18th of May 2012.The Bail Act 2012, by section 21 (1) provides that:
"Where there is a conflict, relating to bail, between the provisions of this Act and any other Act, the provisions of this Act shall prevail."
Except for the provisions of theJuvenile Act, none of the other pieces of legislation prior to the new Act in 2012 has detailed any of the applicable principles relating to the grant of bail. In practice the English Common Law Principles relating to bail has always been applied in St. Kitts and Nevis. In fact it would appear that this jurisdiction courts were following only select practices relating to bail, and that there was likely to have been inconsistency in the approach of the courts in treating with bail applications. Parliament saw it fit to enact this new Act to give clarity to this area of the law. The questions are: "What did Parliament do to the applicable principles? Did it revert to the old common law principles? Did it give legislative force to present day English Practice?"
An examination of the common law, some of the modern bail laws not only of England but also other jurisdictions such as Mauritius, and comparing it with the newBail Act in St. Kitts and Nevis, reveal that the new Act is in fact a reforming law. Not only has it sought to codify the essence of both the common law and aspects of present day law in England and other jurisdictions, but it has also sought to cater for the distinct individuality of Caribbean jurisprudence. I will now, very briefly, trace the journey of this new law.
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