Ruth Alisha James Applicant v Commissioner of Police Respondent [ECSC]

• Jurisdiction: Grenada
• Judge: Persad, J
• Judgment Date: 12 February 2013
• Judgment citation (vLex): [2013] ECSC J0212-3
• Court: High Court (Grenada)
• Docket Number: CLAIM NO. GDAHCV 2012/ 0492
• Date: 12 February 2013

[2013] ECSC J0212-3

IN THE SUPREME COURT OF GRENADA

AND THE WEST INDIES ASSOCIATED STATES

IN THE HIGH COURT OF JUSTICE

CLAIM NO. GDAHCV 2012/ 0492

Between:

In the Matter of the Criminal Procedure Code Cap 2 of the Revised Laws of Grenada (section 49)

In the Matter of an Application by Ruth Alisha James to be Admitted to Bail

Ruth Alisha James

Applicant

and

Commissioner of Police

Respondent

Persad, J

1 Before the court is an application by Ruth Alisha James to be admitted to bail pursuant to section 49 of the Criminal Procedure Code. Ms. James, a young lady of thirteen years has been charged with murder where it is alleged that she caused the death of Alex Gabriel.

2 In the course of the hearing of this application a point of law arose when it became clear that the Prosecution, in seeking to object to the grant of bail submitted that they wished the Court to refuse bail on the basis of the seriousness of the offenceand the strength of the case against the accused. The learned Prosecutor having put forward these concerns also indicated (after inquiry from the court) that they were not objecting on the basis that the applicant was likely to abscond, nor were they suggesting that the applicant was likely to commit other offences while on bail or interfere with any witnesses or attempt to pervert the course of justice.

3 These concessions having been made it was raised by the court whether the court had any jurisdiction to refuse bail in circumstances where the Prosecution was not objecting on these traditional grounds.

4 Before dealing with this issue it is necessary to summarize the arguments put forward by Counsel for the Applicant and Counsel for the Crown.

Submissions by Counsel

5 The applicant was represented by Mr. Sylvester who submitted to the court, that notwithstanding the charge of murder, the court had a discretion to grant bail. That in exercising the discretion the court would have regard to the age of the accused, the fact that she has no previous convictions, her ties to the community and the fact that she is being kept with adult prisoners at the Richmond Hill prison.

6 Counsel also relied heavily on two reports. The first included a report by the Child Protection Agency which suggested that the remand at the Prison was hindering her well being and that the Applicant needed social interaction with peers and ongoing family support for rehabilitation.

7 A second report, from the Probation Unit was also put before the Court containing useful material on a number of matters on the family background of the Applicant and other information that was assistance to the Court in resolving how it should exercise its discretion.

8 Mr. Pinnock for the Crown, provided the Court with detailed written submissions in support of his objections. In essence, Crown Counsel sought to persuade the Court that it should exercise its discretion against granting bail having regard to a number of matters.

9 There was no dispute that the Court did have a discretion to grant bail in cases of murder. However, it was submitted that because murder was a serious offence (arguably the most serious) coupled with the fact that if convicted the sentence would presumably be a substantial custodial sentence, such matters militated against the grant of bail.

10 The fact that the applicant was thirteen years old, had to be weighed against the fact that this was a crime of specific intent and the Prosecution's case was a strong one. To this end, extracts of the Prosecution witness statements were relied upon by the Crown.

11 In essence, the Crown was saying that the Court should exercise its discretion and not grant bail really because of the seriousness of the offence and the strength of the Prosecution's case. While I do not doubt for a moment that these two factors are extremely relevant matters in determining whether the Court should or should not grant bail, it must be remembered that at common law the test for whether to grant bail was primarily one of whether the person would attend upon his trial.

12 It was against this background that the Court chose to clarify the position of the Crown as to whether it was asserting or objecting that the Applicant would not attend upon her trial. Mr. Pinnock, in his usual candid manner was very clear in saying that he was not suggesting that the Applicant would not attend upon her trial. He also indicated to the Court that he was not able to argue that the Applicant was likely to commit any other offences while on bail nor interfere with witnesses if granted bail.

13 This concession having been made, the Court raised the issue with Counsel whether the court in the absence of material to support any of the "traditional" common law grounds of objections could still refuse to grant bail. It seems the appropriate starting point must be to examine the law governing the grant of bail in this jurisdiction.

Law Governing the grant of Bail

The law relating to the grant of bail is governed by first and foremost theConstitution of Grenada as well as sections 47 to 57 of the Criminal Procedure Code Cap. 72B Volume 4 of the 2010 Edition of the Laws of Grenada.

Law Governing the grant of Bail

14 A detailed and comprehensive analysis of the law relating to bail is to be found in the decision of Mr. Justice Brian Alleyne (as he then was) in the case ofAn Application of Teddy Mc Donald to be admitted to Bail.1

15 From the judgment of Mr. Justice Alleyne the following propositions can be extracted:-

• (a) At common law bail was discretionary in felony offences as well as in misdemeanors. Refusal or delay by any Judge or Magistrate to bail any person bailable was at common law an offence against the liberty of the subject (paragraph 6).

• (b) Bail was not to be withheld as a punishment (paragraph 6).

• (c) Regard must be had to the provisions of the Constitution of Grenada, in particular section 3. These provisions clearly require that the person be given the benefit of a judicial proceeding not merely an administrative

  appearance. A proper interpretation of this section gives rise to a constitutionally protected presumption in favour of bail, the onus of negativing which lies on the Crown in each case (paragraph 8-9).

• (d) That section 3 of the Constitution must be read in conjunction with section 8 of the Constitution which guarantees every person charged with a criminal offence shall be (a) presumed innocent until proven guilty and.… (c) shall be given adequate time and facilities for the preparation of his defence (paragraph 10).

• (e) That the antecedents of the Grenada Constitution include the European Convention for the Protection of Human Rights, the United Nations Declaration of Human Rights and the Magna Carta. In fact Article 5 of the European Convention of Human Rights is in terms almost identical to section 3 of the Constitution.

• (f) The domestic law on bail is to be found in the Criminal Procedure Code.

• (g) A Magistrate's (and presumably a Judge's) discretion is a judicial discretion to be exercised in accordance with...