There are these little “one-liners” that lawyers use which succinctly capture a whole lot of law. They date back centuries in some cases and are akin to Proverbs in the Bible or the moral of the story in Aesop’s Fables.
For example, “Justice must not only be done, but must be seen to be done.” Translation: The right decision means diddly squat if people believe that some funny business went on. The reason for such a saying: So that the whole administration of justice is not brought into disrepute.
Here’s another phrase for you, in Latin this time: “sub judice” pronounced sub-joo-di-see or sub yoo-di-kay, according to Black’s Law Dictionary, 7th Edition. Here in Bim, we do a mash-up of the two and say sub joo-di-kay. Latin lesson aside, it means “before the court or judge for determination.”
When a lawyer utters those words, it means that they wish to avoid the risk of having to hand over some money or spend a few days’ in residential accommodation compliments of Her Majesty for speaking out of turn.
All that being said, I cannot conceive how the chief legal officer in Barbados, the Attorney General, could have said what he said in a public forum. The Police Association is a trade union and has to say what they have to say in support of one of their members.
The AG, who bears responsibility for the entire administration of justice in this country, cannot be seen to be taking sides. Remember, justice must not only be done but must be seen to be done. The AG says what he says and, presto, the same man of whom he speaks gets bail the following day after how many months.
How is the administration of justice brought into disrepute? If random members of the public think that the judge is controlled by the AG or working under some other questionable compulsion. If random members of the public also think that the system can be bought out on behalf of a select few.
Furthermore, if random lawyers and family members of hundreds of men on remand at HMP Dodds for the most spurious of reasons, want to know what kind of special treatment is this.
Bear in mind that the same police agitating on behalf of this man are integrally involved in the investigation and prosecution of his murder case. So, in one fell swoop, a judge’s reputation, the reputation of the man’s attorney and the reputation (such as it is) of the whole administration of justice were possibly compromised.
Section 13 of the Constitution provides that “[no] person shall be deprived of his personal liberty save as may be authorized by law.” Therefore, the starting point is that everyone is entitled to bail.
Section 4 of the Bail Act, 1996-28 states categorically that “subject to this Act, a defendant shall be entitled to bail”. That bail may or may not be granted on conditions which the section requires to be “reasonable”.
There are essentially only nine grounds upon which the court may refuse bail to an accused person which are set out in Section 5 of the Act which states that:
“Where a defendant is accused or convicted of an offence that is punishable with imprisonment, the court may refuse an application for bail if,
(a) the court is satisfied that there are substantial grounds for believing that the defendant, if released on bail, whether subject to conditions or not would (i) fail to surrender to custody, (ii) commit an offence, or (iii) interfere with witnesses;
(b) the court is satisfied that the defendant should be kept in custody for his own protection, or if he is a child or young person, for his own welfare;
(c) the defendant is in custody in pursuance of the sentence of a court or of any authority acting under the Defence Act;
(d) the court is satisfied that it has not been practicable to obtain sufficient information for the purpose of taking decisions required by this section for want of time since the institution of proceedings against the defendant;
(e) having been released on bail in or in connection with the proceedings for the offence, the defendant has been arrested in pursuance of section 17 (absconding);
(f) the defendant’s case is adjourned for inquiries or a report and it appears to the court that it would be impracticable to complete the inquiries or make the report without keeping the defendant in custody;
or (g) the defendant is charged with an offence alleged to have been committed while he was released on bail.”
Section 18 of the Constitution also says that “[i]f any person is charged with a criminal offence, then, unless the charge is withdrawn, the case shall be afforded a fair hearing within a reasonable time by an independent and impartial court established by law.” It also states that every accused is “presumed to be innocent until he is proved or has pleaded guilty”.
This man and countless others probably should be out on bail but that is not the talking point and therein lies the problem.
Alicia Archer is a practising attorney-at-law.