A HIGH Court judge in the criminal division has disagreed with the interpretation of one of his colleagues in the civil division over the Judiciary’s bail policy for the approval of sureties.
In a ruling on Thursday, Justice Geoffrey Henderson held he did not consider himself bound by the January 31 decision of fellow judge Justice Carol Gobin, and would"depart from the reasoning in that judgment,” as he dealt with an application for a bail variation.
The application by murder accused Andrew Felix was grounded in Gobin’s finding that the surety-approval policy of the Judiciary was “illegal, ultra vires, and unconstitutional.”
In her criticism of the policy, Gobin said the Bail Act did not include financial resources among the criteria for consideration when exercising the discretion of suitability of a surety.
Gobin said any change in the law to include financial resources as criteria for assessing the suitability of a surety was a matter for Parliament and could not be introduced by the Judiciary as policy.
“The surety-approval policy and procedures stipulated by the Judiciary are not provided for by the Bail Act or any other statute,” she said.
But Henderson said in his view, Gobin’s finding on the unconstitutionality of the Judiciary’s vetting process was “misconceived.”
He said it was his view that the “vetting process” did not amount to a broad inquiry or investigation into the financial resources of a surety, but “rather a process for authentication of the documents, and, in the case of real property, ensuring that said property is free from encumbrances."
The need for the vetting process was even more evident, he said, when the proposed surety has undertaken to be bound by large amounts of money.
“It seems impractical that an individual may stand as a proposed surety and enter into a recognisance in relation to a large sum, and there be no process for checks and balances to ensure that the proposed surety can, in fact, meet that obligation if the sum by which he or she is bound becomes forfeit."
The court must be satisfied that the property intended to be used is capable of being ued in that way,he said.
Henderson agreed there were sanctions to deal with forged deeds, fraud, false statutory declarations and professional bailors, and it was for this reason the necessary checks were important.
He also agreed there was need for the reform as it related to proving ownership of property, in light of lengthy waiting periods to get the documentation from the relevant authorities, and that the approval process was “unnecessarily lengthy and oppressive,” leading to an accused person's being kept in custody for far longer than they should.
However, he said steps were being taken to address those concerns.
In ruling on Felix’s application for the bail variation, Henderson agreed to do so, allowing the named surety proposed by the accused to be used, as he provided declaration, his identification card, a certified copy of ownership of his property, a valuation of it and proof of payment of land and building taxes and water rates.
Felix was committed to stand trial for murder on November 1, 2018. Henderson granted him bail on November 14, 2022, after the ruling of the Court of Appeal and the Privy Council that judges now had a discretion to grant bail to anyone charged with murder.
Bail was fixed at $1.2 million, with a surety to be approved by the registrar of the Supreme Court, and other conditions were imposed, including a curfew.
Felix has been unable to access bail, and applied for a variation for his named surety to be used.
Felix was represented by Darren Mitchell. Stacy Laloo-Chong represented the Office of the DPP.