“Abuses, in any and wherever they exist, ultimately get resolved”

Qs & As

Provisional charges, Detention of suspects & Presumption of innocence

There is nothing wrong with the system. The wrong lies in the mindset of those who are responsible to make the system work in compliance with the rule of law’


Numerous cases of what are perceived to be arbitrary or politically motivated arrests followed by provisional charges and inquiries dragging on unreasonably have been on record since 2015. The recent case of Akil Bissessur, publicly announced by the PM to be on his “radar” for some time, and his treatment have again highlighted the questions of provisional charges and applications for bail. Lex comments on those issues and on the more general need for the authorities to balance carefully public interest with the necessity to safeguard an individual’s personal freedom.

* The issues of provisional charges and detention of suspects without first seeking DPP’s advice, as well as that of presumption of innocence have come up in recent weeks with press reports highlighting what are considered to be arbitrary detention of suspects, in some cases for an unreasonable period of time, on questionable grounds. What’s wrong with the system if that is indeed the case?

There is nothing wrong with the system. The wrong lies in the mindset of those who are responsible to make the system work in compliance with the rule of law. The situation started to go down a deep slope since the elections of 2014 when people were being arrested without an iota of evidence and detained for purely political reasons. We know the fate of those arrests.

The police are empowered to arrest people on reasonable suspicion of having committed or are about to commit an offence. The important consideration is reasonable suspicion. The perception today is that the police arrest people, detain them and remand them to jail and then start to gather evidence. This is totally wrong. The element of reasonable suspicion that an offence has been committed must exist at the time of the arrest, not after the arrest.

* Then comes the issue of bail: the layman might question bail decisions in cases of grave offences, especially with respect to alleged drug trafficking, sexual assaults, etc., and would rightly ask: why are criminals released on bail? This raises a number of questions, namely what’s the importance of bail, who gets and who may be refused bail?

There is nothing complicated with the bail system. Those who are arrested may be released on bail pending their trial. There are a number of factors that the court must consider when dealing with bail applications. All these appear in the Bail Act and as interpreted by the Supreme Court. But what is happening these days is that the police systematically oppose bail applications and more often than not the magistrates go along with the police’s objections and remand the individuals to jail.

* Would it be correct to say that aside from other considerations like, for instance, failure to turn up in court, influencing witnesses or the risks of repeat offence by the suspect, presumption of innocence and non-deprivation of a person’s freedom should be the overriding factors in the decision to grant bail?

A Judge or a Magistrate may refuse to release a defendant or a detainee on bail where there is a risk of absconding – that is the accused will not surrender himself to custody; risk of commission of another offence; risk of interfering with witnesses; risk of tampering with evidence; risk of obstructing justice. The accused would also be kept in detention for his own protection. This what the Bail Act provides.

Once the court has considered these grounds for objection, it must consider other factors like the delay within which the person on remand will be brought to trial; the nature of the evidence against the suspect; the presumption of innocence.

* Former Chief Justice Eddy Balancy has in recent press statements argued that magistrates sitting on bail applications should take guidance from the judgements in the Maloupe case (Maloupe v District Magistrate of Grand Port 2000SCJ 223) and those in Noordally v AG and DPP as well as in the Hurnam case (2005 2 UKPC 49), all of which would recognize the constitutional right to bail. Do you share that view?

I am not here to comment on what the former chief justice said. The best answer to this question resides in what a British Law Lord, Lord Bingham said in the case of Hurnam against the State in 2005 in a bail case. The British Judge summarized the balance that should be kept between the rights of suspects and the rights of the community at large. This is what he said:

“In Mauritius, as elsewhere, the courts are routinely called upon to consider whether an unconvicted suspect or defendant should be released on bail, subject to conditions, pending his trial. Such decisions very often raise questions of importance both to the individual suspect or defendant and to the community as a whole. The interest of the individual is of course to remain at liberty, unless or until he is convicted of a crime sufficiently serious to justify depriving him of his liberty. Any loss of liberty before that time, particularly if he is acquitted or never tried, will inevitably prejudice him and, in many cases, his livelihood and family. But the community has a countervailing interest, in seeking to ensure that the course of justice is not thwarted by the flight of the suspect or defendant or perverted by his interference with witnesses or evidence, and that he does not take advantage of the inevitable delay before trial to commit further offences.” Read More… Become a Subscriber

Mauritius Times ePaper Friday 30 September 2022

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