CJ fires back on bail issue

The Nassau Guardian

Chief Justice Sir Michael Barnett warned yesterday that judges and magistrates will “resist emphatically” any attempt to curtail their ability to uphold the rights guaranteed by the constitution.

Sir Michael indicated that judges will not be dictated to by the executive branch of government.

“As we seek to find solutions to this vexing problem of crime, we cannot compromise on our national commitment to an abiding respect for Christian values and the rule of law,” he said during a special court sitting to mark the opening of the legal year.

Sir Michael was responding to recurring criticisms of judges and magistrates over the grant of bail to people suspected of violent crimes.

Politicians and police have complained about the hundreds of people on bail accused of murder and other serious crimes, who they say are responsible for other crimes while awaiting trial.

After an emergency Cabinet meeting last week, Prime Minister Perry Christie said the government is prepared to introduce legislation that will restrict judges’ ability to grant bail for those charged with violent crimes or gun charges.

But the chief justice yesterday urged members of the executive “that in their language they must not appear to be dictating to the courts how they ought to be run”.

He said, “Whilst I am satisfied that this is not their intent, it is imperative that they do not undermine public confidence in the judiciary by language and statements that leave this impression.

“The fight to protect the community from the scourge of crime is a collective effort. We must work together. The police, the Crown, the defense counsel, the public, as well as the courts.”

Speaking further on the controversy surrounding the grant of bail, Sir Michael said, “I am aware of the criticism that judges have received on their decision to grant or refuse bail.

“We are aware that the suggestion has been made at the highest levels to further curtail the discretion of justices to grant bail. This is healthy. We are not immune from criticism.

“But I believe it is important to remind persons of the principles relating to bail and to the fact that justices do not arbitrarily or capriciously grant bail without regard to these principles.”

He noted that these principles have been set out in numerous decisions by the courts, including the Privy Council by which decisions the judges of the Supreme Court are obliged to follow.

Among other principles, he pointed to the principle that “an independent judiciary free from interference by the legislature and the executive is an essential characteristic of democracy and an underlying aspect of the constitution”.

The chief justice pointed to another principle that states: “Any legislative action that diminishes the independence of the judiciary or impedes the judiciary in its function of safeguarding the constitutional right of the individual will be struck down unless such legislation is enacted in accordance with the rules for constitutional amendments.”

Sir Michael said, “It is with these well established principles in mind that judges are obliged to approach any application for bail.”

He added, “Where there is a reasonable apprehension that a particular individual is likely to interfere with the course of justice, interfere with witnesses or commit a crime whilst on bail, then justices will undoubtedly act on that information properly presented to the court.

“Judges act on evidence or information adduced in a proper manner.”

ROLE

Speaking of the role the courts play in the fight against crime, Sir Michael said, “Justices do not live in ivory towers”.

“We read the newspapers and we are equally appalled at the events in Fox Hill as well as the other areas of New Providence,” said the chief justice, referring to a recent shooting in Fox Hill that left four people dead and seven injured.

“We are painfully aware that the outcome could have been much worse. We are aware that some people whilst on bail commit serious offenses and intimidate witnesses for the prosecution.

“We do not condone or sympathize with criminal behavior and recognize that dangerous persons must be kept off the streets. Yes, ‘the safety of the people is the highest law’.”

He added, “We, at the same time, take seriously our judicial oath that we will do right to all manner of people after the laws and usages of The Bahamas without fear or favor, affection or ill will.”

Sir Michael said judges made decisions based on the evidence before them and they were not responsible for investigations or prosecutions.

“We simply preside over the trials to ensure fairness,” he said.

“Yes, we must aggressively manage cases and ensure that the law is observed, but our primary duty is to be fair. Our duty is also to be available to adjudicate on trial.

“It is not our desire to be idle. Many judges have not taken the five weeks vacation time available to us. In addition, all judges on the criminal side of the Supreme Court now have criminal matters scheduled well into 2015 and in some instances into 2016.”

He noted that three trials are usually scheduled for the same date to increase efficiency. However, if the main trial proceeded the back-up cases would have to be further delayed.

Sir Michael said judges had to weigh the rights of the defendant to his liberty and the rights of the public to security and whether the suspect would frustrate the course of justice by absconding or interfering with witnesses.

He said defendants risk revocation of bail if they breach the conditions of their release such as curfew if the violations were brought to the attention of the court.

Last week, the prime minister told reporters, the Ministry of Works has been given instructions to “work around the clock” to complete the refurbishment of additional criminal courts so that 10 facilities will be able to operate simultaneously.

He said this should expedite criminal cases and reduce the number of people granted bail for serious offenses.

Sir Barnett noted yesterday that any increase in the number of criminal courts will require more people to serve a jurors and potential jurors will find that justices will be less inclined to excuse people from jury duty than they have been in the past.

“In this regard, we look forward to the proposed amendments to the Juries Act which will increase the jury pool,” the chief justice said.

more info...