Hurnam v. The State (Mauritius)  UKPC 49 (15 December 2005)
Privy Council Appeal No. 53 of 2004
Devendranath Hurnam Appellant
The State Respondent
THE SUPREME COURT OF MAURITIUS
JUDGMENT OF THE LORDS OF THE JUDICIAL
COMMITTEE OF THE PRIVY COUNCIL,
Delivered the 15th December 2005
Present at the hearing:-
Lord Bingham of Cornhill
Lord Scott of Foscote
Lord Brown of Eaton-under-Heywood
[Delivered by Lord Bingham of Cornhill]
"It is hereby recognised and declared that in Mauritius there have existed and shall continue to exist without discrimination by reason of race, place of origin, political opinions, colour, creed or sex, but subject to respect for the rights and freedoms of others and for the public interest, each and all of the following human rights and fundamental freedoms
(a) the right of the individual to liberty, security of the person and the protection of the law; ...
and the provisions of this Chapter shall have effect for the purpose of affording protection to those rights and freedoms subject to such limitations of that protection as are contained in those provisions, being limitations designed to ensure that the enjoyment of those rights and freedoms by any individual does not prejudice the rights and freedoms of others or the public interest."
"(1) No person shall be deprived of his personal liberty save as may be authorised by law
(d) for the purpose of bringing him before a court in execution of the order of a court;
(e) upon reasonable suspicion of his having committed, or being about to commit, a criminal offence
(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;
(b) upon reasonable suspicion of his having committed, or being about to commit a criminal offence; or
(c) upon reasonable suspicion of his being likely to commit breaches of the peace,
and who is not released, shall be afforded reasonable facilities to consult a legal representative of his own choice and shall be brought without undue delay before a court; and if any person arrested or detained as mentioned in paragraph (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 unconditionally 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 if any person arrested or detained as mentioned in paragraph (c) is not brought before a court within a reasonable time in order that the court may decide whether to order him to give security for his good behaviour, then, without prejudice to any further proceedings that may be brought against him, he shall be released unconditionally."
It is unnecessary, in this case, to recite the terms of subsection (3A), which derogate from subsection (3) in certain defined circumstances not applicable to the appellant. Section 10(2)(a) of the Constitution gives effect to the presumption of innocence.
"that the proper test of whether bail should be granted or refused is, whether it is probable that the defendant will appear to take his trial, and that bail is not to be withheld merely as a punishment": Noordally v Attorney-General  MR 204.
In the same case it was recognised, on considering section 5 of the Constitution,
"that the suspect's remaining at large is the rule: his detention on ground of suspicion is the exception and, even then, if he is not put on his trial within a reasonable time he has to be released."
The court in Noordally rejected a submission that section 5 did not grant an accused party a right to be at large.
The Bail Act 1989
"8. A detainee shall not be entitled to be released on bail where
(a) he has broken any condition of bail;
(b) he has not complied with any other condition upon which he has been released;
(c) he is not likely to abide by the conditions of his bail, if released;
(d) his continued detention is necessary
(i) for his own protection;
(ii) for the protection of the public or any likely witness or any evidence;
(iii) for his own welfare, if he is a child or a young person;
(iv) for the reason that it will not be practicable to complete the police inquiry if he is released;
(v) in view of the seriousness of the offence and the heavy penalty provided by law;
(vi) in view of his character and antecedents; or
(vii) in view of the fact that he is a fugitive from justice."
The Bail Act 1999
"Subject to section 4, every defendant or detainee shall be entitled to be released on bail."
Section 4 (comparable with Part I of Schedule I to the English Act) specifies the cases in which bail may be refused:
"4. Refusal to release on bail.
(1) A Judge or a Magistrate may refuse to release a defendant or a detainee on bail where
(a) he is satisfied that there is reasonable ground for believing that the defendant or detainee, if released, is likely to
(i) fail to surrender to custody or to appear before a Court as and when required;
(ii) commit an offence, other than an offence punishable only by a fine not exceeding 1,000 rupees;
(iii) interfere with witnesses, tamper with evidence or otherwise obstruct the course of justice, in relation to him or to any other person;
(b) he is satisfied that the defendant or detainee should be kept in custody
(i) for his own protection; or
(ii) in the case of a minor, for his own welfare;
(c) the defendant or detainee, having been released on bail, has
(i) committed an act referred to in paragraph (a);
(ii) breached any other condition imposed on him for his release;
(d) the defendant or detainee is charged or is likely to be charged with a serious offence;
(e) there is reasonable ground for believing that the defendant or detainee has
(i) given false or misleading information regarding his names or address; or
(ii) no fixed place of abode;
(f) a detainee has failed to comply with section 12(2).
(2) In making a determination under subsection (1), the Judge or Magistrate shall have regard to such considerations as appear to the Judge or Magistrate to be relevant, including
(a) the nature of the offence and the penalty applicable thereto;
(b) the character and antecedents of the defendant or detainee;
(c) the nature of the evidence available with regard to the offence."
A "serious offence", referred to in subsection 4(1)(d), is defined in section 2 to mean an offence punishable by penal servitude (meaning a prison term of some three years or more) or an offence under the Dangerous Drugs Act 1986. Of these exceptions, subsection (1)(a) corresponds closely with paragraph 2(1) of Part 1 of Schedule 1 to the English Act: these are the core reasons for refusing bail. Subsection (1)(b) corresponds closely with paragraph 3 of Part 1 of Schedule 1. Subsection (1)(c) corresponds with paragraph 6 of Part 1 as originally enacted. Subsections (1)(d) and (e) express, as grounds for the discretionary refusal of bail, some of the matters to which, under the English Act, the court is required (by paragraph 9 of Part I of Schedule 1) to have regard in making decisions to grant or refuse bail, so far as these matters appear to it to be relevant. This involves some difference of approach. But this is also the approach prescribed in section 4(2) of the 1999 Act, and some of the matters covered by paragraph 9 of Part I of Schedule 1 to the English Act are included. It would seem that an approach broadly similar to that under the English Act was intended.
"The wording of section 4(1) of the Bail Act 1999 makes it clear that release on bail at pre-trial stage is the release upon conditions designed to ensure that the suspect
(1) appears for his trial, if he is eventually prosecuted;
(2) in case he happens to be the author of the offence of which is he suspected, does no further harm to society whilst being at large; and
(3) does not interfere with the course of justice, should he be so minded.
The rationale of the law of bail at pre-trial stage is, accordingly, that a person should normally be released on bail if the imposition of the conditions reduces the risks referred to above i.e. risk of absconding, risk to the administration of justice, risk to society to such an extent that they become negligible having regard to the weight which the presumption of innocence should carry in the balance. When the imposition of the above conditions is considered to be unlikely to make any of the above risks negligible, then bail is to be refused."
The judgment made clear that under section 4(2)(c) the court should assess the nature of the available evidence (as, for example, the evidence of an accomplice, to be treated with caution), but should not attempt to make a detailed evaluation of it. The presumption of innocence, guaranteed under the Constitution, should operate in the applicant's favour. Up to this point the Board respectfully agrees with the judgment. But in its penultimate sentence the judgment concludes:
"As the charge levelled against the accused, albeit provisionally, is one of murder, we find no reason to depart from the standard practice of this court in such cases to refuse a release on bail."
This sentence sits uneasily with the rest of the judgment, as if contributed by a different hand, and is a reversion to the discarded, pre-1999 Act, approach. It was later disowned by the Supreme Court: see paragraph 13 below. The case of Ramasamy v Director of Public Prosecutions  SCJ 266 was, perhaps, close to the borderline. But the applicant was charged, on apparently cogent evidence, with a serious drugs offence, and there were fears that he might commit other offences and abscond. It was hoped that trial would not be long delayed, and bail was refused. There was no discussion of principle, as there was not in Director of Public Prosecutions v Seepersad  SCJ 189, where the Magistrate was found to have considered the evidence in too detailed a manner and to have overlooked the seriousness of the offence and the severity of the penalty for a serious drugs offence. Coureuse v Director of Public Prosecutions  SCJ 283, another drugs case, was again close to the borderline: bail was refused but the court encouraged an early trial.
"The seriousness of the offence or the likelihood of the suspect being charged with a serious offence is obviously just a consideration to be weighed in the balance and not by itself a ground for refusing bail Clearly our law was never intended to mean that once a person is charged with a serious offence as defined in section 2 of the Act, he should be refused bail. Common sense is sufficient authority to hold that the seriousness of the offence charged or likely to be charged is only a consideration relevant to one of the risks, and not a ground by itself."
In the event, a decision on bail was deferred. For different reasons, that was also the course adopted in Deelchand v Director of Public Prosecutions,  SCJ 214.
"The word 'may' in the above section indicates that there is still a discretion to grant bail even where the judge is satisfied that one of the risks in (i), (ii) or (iii) above is likely to materialise, but common sense indicates that except where the imposition of conditions is likely to reduce those risks to an acceptable level, the circumstances at (i) and (iii) above will certainly provide adequate grounds for refusing bail; and that a similar analysis will apply in relation to (ii) above where an offence involving serious harm to one or more persons or to society in general, is concerned."
By contrast, the consideration listed in section 4(1)(d) was not one which would by itself provide adequate ground for refusing bail, but was only one of the considerations to be taken into account, as held and explained in Labonne (JV) v Director of Public Prosecutions  SCJ 38. As stated in that case, the function of the law is to reconcile (para 4.9)
"on the one hand the need to safeguard the necessary respect for the liberty of the citizen viewed in the context of the presumption of innocence and, on the other hand, the need to ensure that society and the administration of justice are reasonably protected against serious risks which might materialise in the event that the detainee is really the criminal which he is suspected to be."
The rationale of the 1999 Act, as expounded in Maloupe v District Magistrate of Grand Port  MR 264, was affirmed. The "nature of the offence and the penalty applicable thereto" and "the seriousness of the offence charged or likely to be charged" were not to be "viewed in isolation, but in conjunction with any relevant risk" (para 4.12). Attention was drawn (para 4.14) to the "striking similarity" between section 5(3) of the Constitution and article 5(3) of the European Convention, and reference was made to some of the Strasbourg authorities. On the facts of the case before the court, the Magistrate was held (para 10.2) to have erroneously treated the likelihood of the applicant being charged with a serious offence as a ground for refusal of bail rather than as a consideration whose significance had to be assessed in the context of all other relevant factors. In paragraph 10.12 the judge described the reference to "standard practice" in Maloupe (see para 11 above) as an incorrect statement "towards the end of a judgment which otherwise correctly explained the law of bail in Mauritius". The Board would respectfully endorse that observation, and the reasoning of the court in Deelchand.
"It follows, therefore, that a detainee has a right to bail vide also section 3 of the Act and Noordally v Attorney-General and DPP  MR 204 at p 207 unless there are 'relevant and sufficient' vide the case of Muller v France (1997) decided by the European Court of Human Rights at paragraph 45 public interest reasons to justify interference with 'the right to personal liberty of that person presumed to be innocent' and also section 3 of our Constitution."
The court referred to the public interest grounds held by the European Court to justify the withholding of bail (the danger of flight, interference with the course of justice, the prevention of crime and the preservation of public order), which it accepted as permissible grounds, but observed that there were other grounds of refusal provided in the 1999 Act which were compatible with the Constitution and could not be ignored. The court said:
"We consider that Labonne v D.P.P. and Anor and Deelchand, already cited, confused the issue by stating respectively that the grounds for refusal to release on bail are listed only in section 4(1)(a) of the Act, and that section 4(1)(d) of the Act is only a "consideration to be weighed in the balance" and is "not itself a ground for refusing bail". As stated already, all the public interest grounds for refusing bail are provided in section 4 of the Act and must be weighed in the balance by the Court in the exercise of its discretion whether to grant bail or not to a detainee, as was ultimately done in Maloupe v The District Magistrate of Grand Port [2000 MR 264].
In other words, it is only in exceptional circumstances that a detainee provisionally charged with a serious offence like murder, attempted murder, conspiracy to commit murder or drug trafficking will be released on bail, the more so if, as is the case with a small jurisdiction like Mauritius, the Police, the prosecuting authorities and judges and magistrates ('judicial officers') are fully conscious of the fact that the law and order situation is everyday deteriorating and the scourge of drug consumption and trafficking is rampant. We consider that judicial officers in Mauritius who have first-hand knowledge of the prevailing local conditions regarding law and order and organised crime should have a margin of appreciation in exercising their discretion and deciding on the need for a detainee to be admitted to bail, taking into account all the public interest grounds for refusing bail listed in section 4 of the Act."
Reference was then made to Hossen v District Magistrate of Port Louis  MR 9, where the evils of drug consumption and trafficking were vividly described, and the court continued:
"The Court [in Hossen] then went on to consider that under section 8(d)(v) of the Bail Act 1989 which is the equivalent of section 4(1)(d) of the Act, the alleged commission of a serious crime, like possessing and selling drugs, involving a heavy penalty, is a ground for refusal of bail.
We take the view that these remarks also apply in the cases of serious offences like murder, attempted murder and conspiracy to commit murder since under sections 3 and 5(3) of the Constitution, already cited, the protection of the public and the preservation of public order are matters of public interest which must be taken into consideration by the Court in deciding whether to admit a detainee to bail or not."
This did not, the court said (in Rangasamy), mean that judicial officers would fetter their discretion or refuse to admit to bail a detainee provisionally charged with murder in an appropriate case, if the evidence against him was inherently weak, a police investigation was not conducted with reasonable expedition and a time limit set by the court for an information to be laid was not observed. Citing Mauritian authority pre-dating the 1999 Act, and some Commonwealth authority, the court ruled that
"in the case of murder, attempted murder, drug-dealing and other cognate offences which are serious offences carrying a heavy penalty under section 4(1)(d) of the Act, there must be compelling reasons to justify admitting a detainee provisionally charged with such offences to bail "
"that the gravity of the charges cannot by itself serve to justify long periods of detention on remand."
It went on, para 84, to reiterate
"that continued detention can be justified in a given case only if there are specific indications of a genuine requirement of public interest which, notwithstanding the presumption of innocence, outweighs the rule of respect for individual liberty. Any system of mandatory detention on remand is per se incompatible with article 5(3) of the Convention "
Thus a statutory prohibition on the grant of bail in a limited class of very serious cases was conceded by the United Kingdom in Caballero v United Kingdom (2000) 30 EHRR 643, para 20, to violate the Convention, a concession which the Court accepted in that case (para 21) and held in SBC v United Kingdom (2001) 34 EHRR 619, paras 22-24, to have been rightly made. The compatibility with the Convention of the amendment enacted to remedy this violation was considered by the Queen's Bench Divisional Court in R(O) v Crown Court at Harrow  1 WLR 2756,  EWHC 868
"But after having weighed in the balance the nature of the evidence available which appears to be essentially that of accomplice evidence, which although being admissible needs to be treated with utmost caution, the Court believes that the presumption of innocence should weigh more heavily in favour of the [appellant's] release on bail."
Conditions as to the provision of sureties and a recognisance, as to the appellant's availability to the police and as to reporting were imposed.
"section 4(1)(d) makes it clear that bail may be refused where the person detained is charged or is likely to be charged with a serious offence."
The Supreme Court considered that although the Magistrate had acknowledged expressly "in no uncertain terms" that the appellant had been charged with a serious offence, carrying a heavy penalty, he had "utterly failed to consider this highly relevant factor in his final determination". He had instead embarked on an analysis of the quality of the evidence, which he had weighed in the balance as soon as the appellant had been arrested. The court said:
"The seriousness of the offence, with which the detainee is charged or is likely to be charged and the penalty which it is likely to entail upon conviction, has always been, and continues to remain under our law relating to bail as set out under section 4 of the Act, an important consideration in determining whether bail should be granted or not. The cursus adopted by our Courts following a long line of decided cases and well-settled jurisprudence has led to the establishment of a consistent practice whereby in cases of murder and other serious offences akin to murder, the seriousness of the offence would invariably weigh heavily in the scale against the release on bail of the detainee or defendant."
The court then cited a number of pre-1999 authorities. It held that the "Magistrate was manifestly wrong when he eminently omitted from his consideration the seriousness of the offence" and "instead wrongly chose to embark at that juncture into a premature and detailed assessment of the probative value of the evidence". The court rehearsed some of the evidence, in more detail than the Magistrate had done, and found that although the Magistrate had rightly set out some of the principles laid down in that respect in Maloupe he had "utterly failed to observe the principle that it would not be appropriate for a Magistrate to examine the precise evidence available to the police at the stage of an application for bail". It further held that
"The learned Magistrate was manifestly wrong in his assessment of the nature of the evidence when he completely overlooked the basic principle that the evidence emanating from an accomplice does not cease to be of a relevant and admissible nature for the purpose of establishing a criminal offence subject to the safeguards embodied in the rules of evidence".
The Magistrate was "manifestly wrong" in failing to consider both the seriousness of the offence and the nature of the evidence, and the decision to grant bail was set aside. The court stressed the need for an early trial in order that the presumption of innocence should not be a vain concept, and thought it imperative that the case should be prepared without undue delay.