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Justice Carol Gobin. File photo
A HIGH Court judge launched a stinging criticism on the Judiciary’s surety approval policy for bail which she ruled “illegal, ultra vires and unconstitutional.”
As a result of her ruling, Justice Carol Gobin has ordered the State to compensate an Arima sanitation worker, and a professional golfer/golf coach in the sum of $850,000 for breaches of their rights and delays they experienced in accessing bail.
The lawsuit challenging the constitutionality of the bail approval process was brought in separate claims by sanitation worker Nillon Baggoo and golfer Benjamin Martin.
Baggoo was granted bail after he appeared in court in 2018, while Martin was granted bail in January 2021.
In her ruling, Gobin said stringent demands of the Judiciary’s policy, even for those with available financial resources, led to the same inevitable outcome of incarceration as the approval process – which requires a shopping list of demands and which cannot be processed within hours.
“The surety approval policy of the judiciary is illegal. Approval of a surety to take the recognizance – a relatively simple exercise – has been replaced by an oppressive regime of rules and requirements which effectively deprives people granted bail, of their constitutional right to liberty, to bail, to due process and to the protection of the law.
“It inflicts unlawful executive detention in circumstances that amount to pretrial punishment,” Gobin said.
In her criticism, Gobin said when it was laid out, it was shockingly obvious that it disqualified the majority of people – “the poor, the landless, working people with mortgages, ordinary people, from offering themselves as sureties.”
“For the majority, the policy compels the impossible. The policy ignores the bureaucratic hurdles citizens are bound to encounter while attempting to procure each and every single one of these compulsory items, the inevitable frustration and helplessness that will be felt.
“It reveals a troubling disconnect between the Judiciary and the people we serve, and more egregiously, a cruel insensitivity to the hardship it unleashes on people presumed innocent under the Constitution.”
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 cannot 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.
Gobin also addressed the issue of professional bailors.
Although illegal, she said, the “hard truth” was that they are here to stay despite what the law says.
“The reason for this is that the Judiciary policy delivers the poor and vulnerable into the hands of professional bailors,” she pointed out, suggesting the time had probably come to revisit the policy on professional bailors to assist those who cannot access bail otherwise.
“Any decriminalisation would necessarily require proper statutory regulation to avoid legitimate concerns about bounty-hunting…” she said.
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In her decision, Gobin also addressed prison conditions which she said had no doubt “worsened” since she delivered her findings on the issue in 2008.
She also spoke of the continued closure and restricted access to the magistrates’ court.
“Remandees no longer have in-person access to magistrates. Prisoners no longer have to be seen or heard except if the technology and resources allow it on screens from prison facilities. There are no available statistics as to how our magistrates are faring with the continued lockdown of their courts.
“Critically, there is no information as to how denial of physical access is affecting prisoner rights of access to justice. The system of remote hearings if they actually have them renders them faceless and voiceless.”
In defence of the men’s claims, attorneys for the State said the policy was permitted by the Bail Act and the men were not deprived of their right to bail although the delay to access it was “unfortunate” and the result of administrative weakness.
But, they maintained, it did not contravene any rights.
Baggoo was represented by Christophe Rodriguez and Sparkle Kirk-Selman while Martin was represented by Lee Merry, Joash Huggins and Larry Boyer.
Tinuke Gibbons-Glenn, Jayanti Teeluckdharry, Nisa Simmons, Karissa Singh, Ebo Jones and Ryan Grant represented the Attorney General in the two claims.