CHIEF Justice Ivor Archie and two Appeal Court judges have allowed an appeal of a former murder accused who asked for a declaration that anyone charged with the capital offence should have the opportunity to apply for bail.
In a ruling on Thursday morning, Archie and Justices of Appeal Mira Dean-Armorer and Malcolm Holdip declared that section 5(1) of the Bail Act was not reasonably justifiable in a society that had regard to the rights of individuals and was unconstitutional as it removed the jurisdiction of the court to consider bail for murder offenses.
The judges also declined to order an immediate stay/suspension of their order as was requested by the Attorney General (AG) whose attorneys have cautioned the decision could lead to a flood of accused persons applying for bail.
They have invited submissions to be heard on March 3 at which time they will determine how long if any, a suspension will last to allow the AG to appeal to the Privy Council.
"We don't feel confident at this stage in making an order suspending the operation of judgment for any significant time," Archie said.
Archie said he did not have the trepidation of the AG of the floodgates being opened, adding that the court will have to deal with each bail application in a structured way and will have to be considered individually.
The challenge to the Bail Act was mounted by Akilii Charles after Justice Joan Charles dismissed Charles's constitutional claim.
Refusing to declare section five of the Bail Act, which makes murder a non-bailable offence, Justice Charles said the former murder accused failed to establish that the legislation directly interfered with judicial proceedings, or breached the doctrine of the separation of powers, to make it unconstitutional.
She had been asked to strike down the specific portion of the Bail Act to allow people charged with murder to apply for bail.
In her decision, Charles said she could not depart from previous decisions of the Privy Council on separation of powers, nor did she agree that the effect of the legislation removed all judicial input on the issue of granting, or refusing, bail for murder.
She pointed out that judges of the High Court, in the past, did not grant bail for murder, either at common law or by statute.
Charles said the classification of murder was a task for the legislature, and Parliament alone should determine if there should be bail for the capital offence.
Charles spent nine years on remand before the murder charge against him was dismissed in May 2019 by Chief Magistrate Maria Busby-Earle Caddle who upheld a no-case submission, agreeing with his attorneys there was insufficient evidence for the matter to proceed to trial.
But, Charles's lead counsel, Anand Ramlogan, SC, had argued the court had the discretion to grant bail even for crimes considered heinous.
He said a judicial custom to not grant bail for murder could not be crystalised in law.
'It is an unlawful, self-imposed fetter on the court's jurisdiction where the liberty of the subject is at
