Adrian Nation v DPP and Attorney General of Jamaica

• Jurisdiction: Jamaica
• Judge: MARSH J , BROOKS J , PUSEY J
• Judgment Date: 15 July 2011
• Judgment citation (vLex): [2011] 7 JJC 1501
• Date: 15 July 2011
• Court: Supreme Court (Jamaica)
• Docket Number: CLAIM NO 2010 HCV 5201

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

IN THE CONSTITUTIONAL COURT

BEFORE:

THE HONOURABLE MR JUSTICE MARSH

THE HONOURABLE MR JUSTICE BROOKS

THE HONOURABLE MR JUSTICE PUSEY

CLAIM NO 2010 HCV 5201

CONSOLIDATED WITH CLAIM NO 2010 HCV 5202

BETWEEN

ADRIAN NATION

CLAIMANT

AND

THE DIRECTOR OF PUBLIC PROSECUTIONS

1 ^ST RESPONDENT

AND

THE ATTORNEY GENERAL OF JAMAICA

2 ^ND RESPONDENT

BETWEEN

KERREEN WRIGHT

CLAIMANT

AND

THE DIRECTOR OF PUBLIC PROSECUTIONS

1 ^ST RESPONDENT

AND

THE ATTORNEY GENERAL OF JAMAICA

2 ^ND RESPONDENT

Constitutional Law – Human rights and Fundamental freedoms - Bail, entitlement to – Amendments made by Parliament to the Bail Act – Amendments removing entitlement to bail for certain offences – Whether amendments infringe on the constitutional right to liberty – Whether amendments infringe on the principle of the separation of powers - Constitution of Jamaica sections 2, 13, 15, 16, 17, 20, 25, 48, 49, 50 – Bail Act sections 2, 3, 4 and 10 – Bail (Amendment) Act 2010 – Bail (Interim Provisions) Act 2010

MARSH J

1 On December 29, 2000, the Bail Act a revolutionary piece of legislation came into force in Jamaica. Among other things, it stated, for the very first time, that every person charged with a criminal offence was entitled to be granted bail. If the dictionary meaning of the word ‘entitled’ was intended, then it meant that every person charged with an offence was ‘qualified for by right according to law’ to be granted bail.’ This was against a background of a burgeoning murder rate, a proliferation of illegally held firearms and an increasing level of gun violence.

2 There were loud appeals by citizens of Jamaica for government to take further steps to reduce the frightening crime rates. In response to the appeal of the people, Parliament acted by passing into law six Acts, called cumulatively ‘the Anti-Crime bills.’ Two of these sought to amend the Bail Act 2000 and came into effect on the 23 ^rd of July, 2010.

These two Amending Acts were –

• i. The Bail Amendment Act 2010 (Act 20/2010) and

• ii. The Bail (Interim Provisions for Specified Offences Act 2010 (Act 22/2010).

3 With the coming into force of these Acts,-

• i. The entitlement to bail in Section 3 of the Bail Act 2000 was altered with regards to certain specified offences as contained in a Second schedule;

• ii. The burden of proof as to whether a person charged with an offence should access bail was reversed – it was the person charged who now bore the burden of ‘satisfying’ the Court that bail should be granted.

• iii. There were set periods, a minimum of seven days and a maximum of fourteen days when a person held in custody should be brought to court, up to sixty days, before Section 22 of the Bail Act could come into force. This section referred to procedure on arrest and detention where a person is not charged within twenty four hours of such charge or arrest.

• iv. A right of appeal was granted to the prosecution where bail was granted.

• v. A Second Schedule containing a list of eleven serious sets of offences for which there were special provisions for the grant of bail.

4 It was as a result of these two Amending Acts that the claimants, Mr Adrian Nation and Miss Kerreen Wright, have approached this Court. They have each filed a claim impugning the said Amending Acts, contending that when the learned Resident Magistrate in the Resident Magistrate's Court for Manchester, refused to allow them to apply for bail, because of the said Amending Acts they were each denied their Constitutional right to liberty. They also contend that the requirement to be brought before the Court for the stipulated periods during the sixty days, not knowing if they would be granted access to bail, amounted to inhuman or degrading treatment. They maintain that by virtue of these two Amending Acts they have suffered grave violation of their constitutionally guaranteed rights.

5 The Court is therefore asked to find that both Acts are violations of the Constitution and that consequently each should be struck down as void. These claims were consolidated. The respondents are the Director of Public Prosecutions and the Attorney General respectively.

6 There is no contest that the facts outlined in the claimants' affidavits happened other than in the way they have stated. The sole issue, the first respondent suggested, “seemed” to be the constitutionality of the provisions of the Bail (Interim provisions for specified Offences) Act.

7 On different dates and arising out of different allegations, each claimant was charged with the offence of murder. The claimant Mr Adrian Nation was charged on the 9 ^th day of July, 2010 and taken to the Manchester Resident Magistrates' Court being held in Mandeville. He was remanded in custody to the 21 ^st July, 2010 and the Resident Magistrate cited the Bail Act as a reason for the remand of the accused. On the 21st July, 2010 he was further remanded to the 4 ^th August, 2010 and again to the 1 ^st September, 2010, then again to the 29 ^th September 2010. The continuous remand was attributed to the said Bail Act.

8 The claimant Ms Kerreen Wright was arrested on the 31 ^st day of July, 2010 and charged on the 5 ^th day of August, 2010. When Ms Wright appeared before the Learned Resident Magistrate 5 ^th August, 2010, the Magistrate refused to assume jurisdiction to hear an application for bail, again citing the Bail Act.

9 It was later that there was a report of the grant of bail to a policeman charged with offence of murder. It was only after this event that bail was offered to both claimants.

Claimants' Locus Standi

10 Counsel for the 1 ^st Respondent Mr Jeremy Taylor strongly contended that the claimants were not entitled to seek Constitutional Redress. Section 25 of the Constitution is the section which permits a person aggrieved by any provisions of the Constitution to seek redress. This Court should not, however, exercise any of its power under this section, if it is satisfied that adequate alternate means of redress are available to the person so aggrieved.

11 Mr Taylor further submitted that the claimants each have alternate means of redress. Each has a right to appeal the Resident Magistrate's decision as to bail as provided in sections 8 – 11 of the Bail Act. He relied for the submission on a number of authorities:-

Harrikssoon v. Attorney General of Trinidad and Tobago [1979] 31 W.I.R. 348 at p. [349], in which Lord Diplock, stated, among other things-

‘The right to apply to the High Court…for redress when any human right or fundamental freedom is or is likely to be contravened is an important safeguard of those rights and freedom; but its value will be diminished if it is allowed to be misused as a general substitute for the normal procedures for making judicial control of administrative action. In an originating application to the High Court the mere allegation that a human right or fundamental freedom of the applicant has been or is likely to be contravened is not of itself sufficient to entitle the applicant to invoke the jurisdiction of the Court…if it is apparent that the allegation is frivolous or vexatious or an abuse of the process of the Court as being made solely for the purpose of avoiding the necessity of applying in the normal way for the appropriate judicial remedy for unlawful administrative action which involves no contravention of any human right or fundamental freedom.’

(As persuasive authority from the United States Supreme Court): Ashwander v. Tennessee Valley Authority (1936), 297 U.S. 288 at 348 per Justice Blanders -

‘The Court will not pass upon a constitutional question although properly presented by the record, if there is also present some other ground upon which the case may be disposed of. This rule has found most varied application. Thus, if a case can be decided on either of two grounds, one involving a constitutional question, the other a question of statutory construction or general law, the Court will decide only the latter.’

Doris Fuller v. Attorney General (1998) 56 WIR 337 at 396 – 397 in which Patterson J.A. as a preface to considering Lord Diplock's dictum in Harrikissoon v. Attorney General of Trinidad and Tobago ( supra ), held:

‘There can be no doubt that this evidence established that the deceased was subjected to inhuman and degrading treatment. That was not contested. So I turn again to the provisions of section 25 of the Constitution. It is the section that provides for the enforcement for the protective rights and freedoms included in Sections 14 – 24. Section 25 (2) bestows original jurisdiction upon the Supreme Court to bear and determine any application made by any person who alleged that any of the protective provisions ‘has been or is being or is likely to be contravened in relation to him.’ But it goes further by stating in a purposeful proviso “that the Supreme Court shall not 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.”’

The proviso to section 25 (2) of the Constitution which reads:-

‘Provided that the Supreme Court shall not 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.’

(Lord Diplock in Harrikissoon v. Attorney General for Trinidad and Tobago ( supra ) had already outlined the same rationale for the proviso to section 6 of Trinidad's Constitution which is almost mirror similar to section 25 of the Jamaican Constitution.)

12 The law as stated by Mr Taylor is sound and unimpeachable with regards to the expressed meaning of section 25(2) of the Constitution regarding the powers of the Court, where an application is made to it by any person claiming to...