CIVIL APPEAL No. 8 of 1994
EASTERN CARIBBEAN SUPREME COURT; COURT OF APPEAL; SAINT CHRISTOPHER AND NEVIS
Floissac, C.J., Liverpool, J.A., Singh, J.A.
29 November 1994, 30 November 1994, 1 December 1994
9 January 1995
Mr. L.L. Moore Q.C., Mr. K.A.H. Foster Q.C. and Dr. H. L. Browne for the Appellants Mr. F. Phipps Q.C. Ms C. Phipps and Mrs. J. Joinder (D.P.P.) for the Respondents
1 SIR VINCENT FLOISSAC, C.J. Between the 7th and 11th October 1994, the appellants individually applied to the High Court for writs of habeas corpus for their release from custody. During the pendency of these ap- plications, the appellants were charged with the offence of conspiracy to murder Vincent Morris and Joan Walsh. Whereupon the appellants applied to a judge in chambers for their admission to bail. The application for bail was heard by Hylton J and on 19th October 1994, the learned judge delivered a written ruling or deci- sion refusing the application. The appellants are dissatisfied with that decision and have appealed against it.
(1) Criminal cause or matter
4 The principles which govern the question whether an order was made in a criminal cause or matter were authoritatively stated in the decisions of the House of Lords in Clifford and O’Sullivan (1921) 2 A.C. 570 and Amand v Secretary of State for Home Affairs (1943) A.C. 147. According to these decisions, there appear to be three preconditions of an order made in a criminal cause or matter. The first precondition is that at the time of the filing or hearing of the application on which the order was made, a charge of crime punishable by a fine, imprisonment or otherwise had been or was about to have been preferred against the applicant or some other person. The second precondition is that the application involved consideration of that charge of crime. The third precondition is that the direct outcome or result of the application was or might have been the applicant’s or other person’s trial and possible conviction and punishment by a Court or judicial tribunal having or claiming jurisdiction to try, convict and punish for that crime.5 An order refusing bail satisfies those three preconditions. In R v Blanford Magistrates’ Court (1991) 1A.E.R. 218, Taylor L.J. (delivering the leading judgment of the English Court of Appeal) said (at p.222):-“There can be no possible ground for describing an order granting or refusing bail to a defendant as collateral to the criminal proceedings as was held in relation to the estreatment of the surety’s bail in Green’s case. The grant or refusal of bail to a defendant in criminal proceedings is an integral part of the criminal process.”6 For these reasons, I am satisfied that the order by way of refusal of the appellants’ application for bail was an order made in a criminal cause or matter. The result is that unless the Constitution otherwise prescribes, the learned judge’s decision is unappealable by virtue of section 31(3)(a) of the Supreme Court Act.
(2) The Constitution
7 The Supreme Court Act is an existing law for the purposes of paragraph 2 of Schedule 2 to the Constitution Order (Imperial Order 1983 No.881). According to paragraph 2(1):”The existing laws shall, as from 19th September 1983, be construed with such modifications, adaptations, qualifica- tions and exceptions as may be necessary to bring them into conformity with the Constitution and the Supreme Court Order.”8 This means that section 31 (3)(a) of the Supreme Court Act must be construed with such modifications, adaptations, qualifications and exceptions as may be necessary to bring it into conformity with section 98 of the Constitution. Section 98 provides as follows:”Subject to section 36, an appeal shall lie from decisions of the High Court to the Court of Appeal as of right in the fol- lowing cases -(a) ……………………………………………(b) final decisions given in the exercise of the jurisdiction conferred on the High Court by section 18 (which relates to the enforcement of the fundamental rights and freedoms); …… “
es . And finally in R. v. Blandford Magistrates’ Court, ex parte Pamment  1 All E.R. 218 the Court con- sidered and applied Lord Esher’s dictum in Ex. Parte Woodhall.38 Learned Counsel also submitted that the right of appeal in pursuit of the appellants’ claim to liberty should not be lost merely because they chose the more familiar procedure of an application for bail in accordance with Order 32 of the Rules of the Supreme Court rather than by way of a constitutional proceeding by means of section 18 of the Constitution, whereby an automatic right of appeal would have been available under sec- tion 98(b) of the Constitution; since if the opposite contention were correct, it would mean that if a Judge of the High Court manifestly exercised his discretion arbitrarily, or manifestly took into account a fanciful risk as distinct from a real risk and refused bail so that the appellants would be incarcerated for a long period, or made the bail excessive contrary to section 5(5) of the Constitution, the applicants would have no remedy and would be obliged to endure the manifest injustice.39 The relevant sections of the Constitution which need to be examined in answer to this submission are as follows:”5(3) Any person who is arrested or detained-(a) for the purpose of bringing him before a court in execution of the order of a court; or(b) upon reasonable suspicion of his having committed, or being about to commit, a criminal offence un- der any lawand who is not released, shall be brought before a court without undue delay and in any case not later than seven- ty-two hours after his arrest or detention.(4) Where any person is brought before a court in execution of the order of a court in any proceedings or upon suspi- cion of his having committed or being about to commit a criminal offence, he shall not be thereafter further held in cus- tody in connection with those proceedings or that offence save upon the order of a court.(5) If any person arrested or detained as mentioned in subsection (3)(b) is not tried within a reasonable time, then, without prejudice to any further proceedings that may be brought against him, he shall be released either uncondition- ally or upon reasonable conditions, including in particular such conditions as are reasonably necessary to ensure that he appears at a later date for trial or for proceedings preliminary to trial, and such conditions may include bail so long as it is not excessive.””18(1). If any person alleges that any of the provisions of sections 3 to 17 (inclusive) has been, is being or is likely to be contravened in relation to him (or, in the case of a person who is detained, if any other person alleges such a contra- vention in relation to the detained person), then, without prejudice to any other action with respect to the same matter that is lawfully available, that person (or that other person) may apply to the High Court for redress.(2) The High Court shall have original jurisdiction -(a) to hear and determine any application made by any person in pursuance of subsection (1); and(b) to determine any question arising in the case of any person that is referred to it in pursuance of sub- section (3)and may make such declarations and orders, issue such writs and give such directions as it may consider appropriate for the purpose of enforcing or securing the enforcement of any of the provisions of sections 3 to 17 (inclusive):Provided that the High Court may decline to 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.””98. Subject to section 36, [which deals with the power of the Court to determine questions of membership of the Na- tional Assembly] an appeal shall lie from decisions of the High Court to the Court of Appeal as of right in the following cases -(a) ………………………………………..(b) final decisions given in exercise of the jurisdiction conferred on the High Court by section 18 (which relates to the enforcement of the fundamental rights and freedoms);”40 It is hard to understand how the difficulties raised in the submissions by learned Counsel could arise in practice and not be resolved satisfactorily in accordance with the law and the Constitution. In the normal case contemplated by section 5(3) and (4) there would be an application for bail. If, however, the circum- stances are such as those presented in learned Counsel’s submission then the provisions of section 5(5) would come into play, and a constitutional motion could be filed under section 18. The court could not in such a case use the proviso to s. 18(2) as an excuse to decline to exercise its powers. In that case an appeal
would lie to the Court of Appeal by virtue of section 98(b). There would therefore be no contravention of the provisions of section 5 merely because bail was refused but only if the conditions laid down in s. 5(5) were appliable. That stage had not yet been reached, and the learned Judge in fact anticipated this in her judg- ment.
41 In the alternative it was submitted on behalf of the appellants that if the order made by the High Court is held to have been made “in a criminal cause or matter” then section 31 (3)(a) of the Supreme Court Act would be inconsistent with the provisions of section 98(b) of the Constitution, and to that extent would be void. Accordingly, it was submitted, this Court should apply paragraph 2 of Schedule 2 to the Constitution Order of 1983 and construe section 31(3)(a) of the Act to read –
“No appeal shall lie under this section from any order made in any criminal cause or matter save and except an order granting or refusing bail.”
and the following cases were cited in support of this submission as persuasive authority: Ngui v.Republic of Kenya  LRC (Const.) 308 and D.P.P. v. Pete  LRC (Const.)553. In Ngui the High Court of Kenya held that section 72(5) of that country’s Constitution which made release on bail mandatory in certain pre- scribed circumstances was applicable to all offences so that section 123(3) of the Criminal Procedure Code which purported to exclude the granting of bail where certain offences had been committed was inconsistent with section 72(5) of the Constitution. In Pete the respondent was charged with the offence of robbery with violence. A district court denied him bail on the ground that the offence charged was not bailable by virtue of
s. 148(5)(e) of the Criminal Procedure Act, 1985 of Tanzania. He applied to the High Court for bail arguing that the use of the law as it pertained to him in the instant case was oppressive and unconstitutional. The Judge held that s. 148(5)(e) was unconstitutional and granted bail, and the Director of Public Prosecution’s appeal against the judge’s order was dismissed. I have read both cases and it seems to me that neither the law applied therein, nor the principles to be extracted therefrom would be of assistance in deciding the pre- sent matter.
42 In my view both statute law and the Constitution recognise, and provide adequate remedies for the case of an individual who has been arrested and charged, pending trial. Section 31(3)(a) of the Supreme Court Act provides that he may not appeal from a refusal of the High Court to grant bail; but the Constitution gives him a right of appeal in circumstances where his constitutional right to liberty is infringed, and section 5 of the Constitution clearly spells out what those conditions are. It has not been demonstrated or proved that the appellants’ rights under section 5 have been, are being, or are likely to be contravened by the actions which have been taken so far in respect to them. I would therefore hold that section 31 (3)(a) of the Supreme Court Act of St. Kitts-Nevis is not unconstitutional.
43 For the reasons stated, this appeal therefore stands dismissed.
N.J.O. LIVERPOOL, Justice of Appeal
44 SINGH, J.A. For the reasons given in the judgments of Sir Vincent Floissac C.J. and Liverpool J.A., I too would sustain the preliminary objection of counsel for the respondents and dismiss this appeal. I also agree with the learned Chief Justice that there should be no order as to costs.
Justice of Appeal