Conflicting Rights – The Accused vs. Society

by Dame Anita Allen

NASSAU, BAHAMAS – Sadly, in the last few weeks, New Providence has become the scene of senseless violence, and more disturbingly, this violence has touched women and children caught-up in the culture of violence, and the crossfire. 

Those of us who thankfully, until now are untouched by the violence, are nevertheless afraid to leave our homes, but even more daunting, we are afraid to stay in our homes. 

It is becoming increasingly difficult to go about our daily lives without contemplating the possibility of either being witnesses to, or victims of, violence, and that fear is palpable, pervasive and paralyzing.  

The evidence suggests that this unprecedented level of violence is attributable, in large part, to bailed criminal defendants, but I am not so naïve as to think that focusing on bail alone is the panacea for reducing the level of crime. 

I do think however, that the focus on bail is a starting point for what I fear is going to be “a long walk over the heath” and it is for this reason that I chose to write this piece. 

Our system of government echoes the genius of the Westminster system in its focus on the rights and freedoms of individuals, and indeed, Part II of our Constitution mandates robust protections of the  fundamental rights and freedoms of individuals, including, protection from arbitrary arrest and detention, the presumption of innocence,  provisions for fair trials within a reasonable time, and the right to be released on bail either unconditionally or upon reasonable conditions if the State is unable to afford to  persons charged, a fair hearing within a reasonable time. 

Suffice it to say, these fundamental rights and freedoms are not absolute, and are subject to constitutional limitations which ensure that the enjoyment of the  rights and freedoms afforded to criminal defendants, does not prejudice the rights and freedoms of others. 

In our system, judges have a duty to defend and uphold the rule of law, and while the sanctity of liberty is the fulcrum of a civilized society, yet the accent on personal liberty cannot be pyramided to the extent that it brings chaos to a society.

It is worth remembering that a criminal defendant is entitled to the fair and equal protection of law under our Constitution no less than a victim but, to no more than a victim.

For this reason, a delicate balance must be struck between the personal liberty of an accused to be on bail, and the public’s interest to be protected from the commission of violence against them or against witnesses, repeat offending, absconding, tampering with evidence, or otherwise obstructing the course of justice. 

Moreover, the jailhouse grapevine will advise an accused not to plead guilty ever and will persuade him to apply for bail on the basis that he is not likely to be tried within a reasonable time. It will encourage him to use every device he can think up to frustrate the ends of justice, including demanding a new lawyer, feigning illness and what -not, to delay the trial, and to buy years of time on bail, hoping that witnesses will forget their evidence, or die.

In these circumstances, the court’s duty is to achieve fairness and balance, to ensure that a fair trial is not frustrated by the conduct of the accused. The judge is tasked to consider whether the right to a fair trial should take precedence over his personal liberty, and the answer lies in whether his conduct  amounts to  grounds which justify the limitation of his fundamental right to liberty.

Indeed, before he became Chief Justice of the United States Supreme Court, Warren Earl Burger spoke eloquently about the balance between the right of an accused to be at liberty, and the protection of the public.  He said that citizens of a country have a right to the protection of their person, their lives, their homes, and their property and that these rights are not fostered by the existence of even the most perfect system for the protection of the rights of criminal defendants. 

In the same vein, Lord Bingham, in HURNAM V THE STATE [2006] 3LRC 370, 374 said: “…The Courts are routinely called upon to consider whether an un-convicted suspect should be released on bail, subject to conditions pending his trial…The interest of the suspect is of course to remain at liberty ….Any loss of liberty before that time, particularly if he is acquitted or never tried, will inevitably prejudice him…. But the community has a countervailing interest in seeking to ensure that the course of justice is not thwarted by the flight of the accused, or perverted by his interference with witnesses or evidence, and that he does not take advantage of the inevitable delay to commit further offences.”

The principle in HURNAM is embodied in section 4 (2B) of the Bail Act, that courts should consider the protection of the public or public order and, where appropriate, the need to protect the safety of the victim or victims are to be primary considerations when deciding whether to grant bail. 

Consequently, in appropriate cases, the right of an accused to liberty pending trial must give way to protection of the public, public order, or the safety of the victim or victims of the alleged crime.  

Inexorably, the consideration of an application for bail requires a realistic assessment of all the circumstances of the case, including whether the applicant is likely to commit offences while on bail. It is difficult to envisage any circumstances which justify the admission to bail of a person who is suspected of committing multiple offences of murder while on bail, and such an application ought to be denied, his previous bail revoked, and an order that the applicant be tried forthwith. 

On all applications for bail, the prosecution is duty-bound to put forward, all the facts and the law relevant to the case, and to make such representations as are warranted to ensure  justice is served, and where a decision appears not to be consonant with the  law, to appeal the decision to the Court of Appeal. 

  As previously stated, the constitutional imperative requires that a person accused of a crime must be tried within a reasonable time or be released either unconditionally or on reasonable grounds. 

In this regard, the Bail Act provides that without limiting the extent of a reasonable time, an accused must be tried within a period of three years from the date of arrest or detention. This leaves intact the discretion of a court to decide on the circumstances before it, whether a reasonable time is longer or shorter than three years. 

Indeed, circumstances such as the number of witnesses to be called, the availability of those witnesses, the availability of defence counsel, and jurors, any backlog, the number and complexity of pretrial applications, the need for medical and forensic reports, the expected length of the trial, and the number of pre-trial adjournments granted, may impact what is a reasonable time, in any case.

I suggest that increasing the number of public defenders and the panel of jurors, improving the process of summoning, and selecting jurors, providing protection for jurors, increasing the capacity of the police forensic lab, fewer pre-trial adjournments, better time management of trials, weeding out the backlog in the system, and stricter compliance with the law and rules of procedure by all actors in the justice system, are some ways the trial of cases in a reasonable time might be achieved.

 Additionally, I propose two other suggestions, the first, which was advocated by Sir Burton Hall some years ago, is to provide in legislation the option of trials by judge alone to persons charged with offences such as murder and manslaughter. This will alleviate the need for some jury trials where accused persons choose that option and may help to decrease the backlog of cases waiting to be tried. Alternatively, if there is appetite for a referendum, to   amend the Constitution to remove the right to jury trial, in which case criminal defendants would have no choice but to be tried by judge alone. 

The second suggestion which I apprehend abolitionists will find unpalatable, is a more aggressive approach by the prosecution to apply in appropriate cases for the imposition of the death penalty on conviction of murder. 

 Significantly, the death penalty is still a punishment for murder prescribed by the law of The Bahamas, albeit, since the Privy Council’s ruling in Bowe and Davis v R (2006), its imposition is discretionary, and since Maxo Tido v R (2011) (following Trimmingham v R (2009)), it’s imposition is only lawful if imposed in cases in which the facts are extreme and exceptional or “ the worst of the worse” or the” rarest of the rare”. 

That, notwithstanding, it is conceivable that a differently constituted Privy Council may well find that a case from this jurisdiction falls in the above category, or alternatively may distinguish or depart from the stated authorities on the lawfulness of its imposition in other category of cases. It follows therefore that while the death penalty remains part of our law, it ought to be imposed in cases appropriate for its imposition in accordance with the authorities by which we are bound.

While we will never know whether the death penalty is a deterrent to others who would commit murder, yet one thing we do know, and that is, that execution will deter that convict from committing murder again!

Finally, to guarantee the continued preservation of our freedom and peace in our land, we must all work assiduously to ensure that the fundamental canons which secure our individual freedoms continue to be the bulwark against punishment before conviction, but equally, that they continue to be the rampart that protects our society from lawlessness.