People charged with murder must be brought before the High Court “within a reasonable time after charge” so that the court can review the legality of their detention and consider bail, a judge has ruled.
“The failure of the State to do so …resulted in an infringement of the Claimants’ rights to the protection of the law and to personal liberty,” Justice Bryan Weekes declared in his decision regarding a civil suit brought by murder accused Kemar Greene and Romono Drayton.
The two, who are charged with murdering Simeon Legall between November 8 and 10, 2022, filed a constitutional motion through their attorney, Lalu Hanuman, arguing that while they had been before the court for more than two years, there had been no disclosure in their case and that applications for dismissal for want of prosecution or for an unless order had been refused.
The judge said: “They were charged with murder and have remained on remand for over two years. Disclosure had still not been served at the time this case was filed. They were repeatedly brought before a court that could not consider bail, and were never brought by the State before the High Court for judicial review of the lawfulness of their detention and for consideration of release pursuant to the Bail Act.
“In these circumstances, their detention lacked the timely and effective judicial supervision required by the Constitution. The court therefore holds that, where a person is charged with murder and is not released, sections 11 and 13 of the Constitution require that the State bring that person, within a reasonable time after charge, before the High Court, being the court of competent jurisdiction to consider release on bail and to review the legal basis for continued detention.
“The failure of the State to do so in the present case resulted in an infringement of the Claimants’ rights to the protection of the law and to personal liberty
The constitutional motion also requested that a magistrate recuse herself from the case due to an alleged bias.
The court found that the claimants had failed to exhaust the redress available to them under provisions of the Magistrates Courts Act, as they had not appealed the decision of the magistrate not to order disclosure from the Commissioner of Police and not to dismiss the cases for want of prosecution pursuant to section.
“The court therefore has no jurisdiction to make any orders pursuant to section 18 of the Constitution,” he stated.
But Justice Weekes outlined that provisions were available for the protection of an individual from arbitrary detention.
He continued: “The judicial control required by the Constitution must occur promptly in order to minimise unjustified interference with liberty and to preserve the substance of the safeguard against arbitrary detention.
“On the facts of this case, the claimants were brought before the Magistrates’ Court after charge and thereafter repeatedly remanded at intervals, but remained on remand for more than two years without disclosure having been served. The court has already found that after more than two years on remand in prison, the claimants remained ignorant of the evidence on which the charge of murder had been laid against them. In those circumstances, mere repeated production before the Magistrates’ Court did not constitute the prompt and effective judicial control contemplated by the constitutional protection of liberty.”
Justice Weekes stated that the review must be automatic and not dependent on an application by the detained person, and that the judicial officer must be independent of the executive and must have power to review the lawfulness of detention and order release if detention is not justified.
“The difficulty in this case is that, by operation of the Bail Act, jurisdiction to grant bail for murder is vested exclusively in the High Court, not the Magistrates’ Court. The Magistrate before whom the claimants were repeatedly produced therefore lacked jurisdiction to consider their release on bail in respect of the charge of murder. In practical terms, the claimants were brought before a tribunal that could continue the remand process but could not supply the essential judicial control over release which the protection of liberty requires.
The judge therefore found that the constitutional safeguards guaranteed by sections 11 and 13 of the Constitution were not afforded to the claimants in substance and ordered that the two be taken to a High Court judge “so that their detention in custody may be reviewed by a competent court”.
(JB)
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