Peter Carter QC and Pippa Woodrow successful in landmark judgment: Akili Charles

In a landmark judgment handed down on the 28th July 2022 in Attorney General of Trinidad and Tobago (Appellant) v Akili Charles (Respondent) No 2 (Trinidad and Tobago) [2022] UKPC 31, Lord Hamblen, writing for the Judicial Committee of the Privy Council (‘the Board’), struck down as unconstitutional the provisions of the Bail Act which had provided that bail could not be granted to any person charged with the offence of murder.

Mr Charles had been charged, jointly with five others, for the murder of Russell Antoine on 5 December 2010. From that point on, and further to the Bail provision, he was remanded in custody before being released on 21 May 2019, the Magistrate having determined that there was insufficient evidence to amount to a case to answer against him. Mr Charles was accordingly released. In the meantime however, he had spent nearly 8 ½ years on remand in custody, unable to ask the courts to consider his release – regardless of the sparsity of evidence against him or the risk absconding of committing offences whilst on bail. 

Mr Charles argued that the Bail provision which prevented those accused of murder from applying for bail was unconstitutional.

There were two issues before the Board: (i) whether the Bail provision was “saved law”, in accordance with section 6 of the Constitution, and therefore protected from challenge by reference to the fundamental rights and freedoms set out at sections 4 and 5 of the Constitution? And (ii) whether the Bail provision was a valid law because it was passed under section 13 of the Constitution – i.e. was the Bail provision a law that could be said to be reasonably justifiable in a society that has a proper respect for the rights and freedoms of the individual?

In answer to the first issue the Board surveyed the authorities – many dating to the 19th century and beyond –and agreed with the Respondent’s argument, (which had been adopted by a unanimous Court of Appeal) that the Bail provision was not saved law. This is because the law in force before the enactment of the independence Constitution (and before the enactment of the Bail provision) was that judges of the High Court had always retained a discretion to grant bail in any case whatsoever, whereas the Bail provision provided for the total removal of this discretion.

As to the second issue, the Board affirmed that the correct test was one of proportionality. It noted that the Attorney General had argued (in relation to the saved-law issue) that it had never been the practice for the Courts in Trinidad and Tobago to grant bail to persons accused of murder. This being so, the Board found it difficult to see why there was a need to remove any discretion left to the court to grant bail and to impose a legal prohibition. In relation to murder, the legislature’s concerns that bail was being granted too readily in the context of a rising crime rate was already being met by the practice of the courts not to grant bail.

The Board held that a Court should be slow to strike-down as unconstitutional a law passed pursuant to section 13 of the Constitution. The burden rests on a challenger to such a law, and the burden is a heavy one. Nevertheless, the burden had been satisfied in this case. The Bail provision pursued a series of legitimate aims, and the legislation was rationally connected to the pursuit of the same. However, less intrusive measures were available to the State because, as the Board found, it was not necessary for the legislature to have imposed a blanket prohibition on the grant of bail. In considering whether a fair balance had been struck between the rights of the individual and the interests of the community, the Board also noted the range and significance of the rights that were interfered with by the Bail provision. The Bail provision was ultimately found to be disproportionate as it was inconsistent with the rule of law.

This being so, the Bail provision was struck down as unconstitutional, the Attorney General’s appeal was dismissed, and the ruling of the Court of Appeal upheld.

The case has already had significant implications in Trinidad and Tobago, with the Attorney General promising to overhaul the existing bail scheme.

The judgment stands as testament to the tenacity and bravery of the Respondent Akili Charles who was determined that others should not suffer the injustices to which he was subjected. His tragic murder, shortly after the ruling was handed down, has been widely condemned. His legacy as a peace-loving and gentle agent of justice will continue as innocent people previously denied recourse to the courts under the Bail Act will now have the opportunity to make their voice heard and seek their freedom.

Peter Carter QC and Pippa Woodrow were instructed for the Respondent, led by Anand Ramlogan SC.