Hurnam v State of Mauritius

JurisdictionUK Non-devolved
CourtPrivy Council
JudgeLord Bingham of Cornhill,or
Judgment Date15 December 2005
Neutral Citation[2005] UKPC 49
Date15 December 2005
Docket NumberAppeal No. 53 of 2004

[2005] UKPC 49

Privy Council

Present at the hearing:-

Lord Bingham of Cornhill

Lord Scott of Foscote

Lord Carswell

Lord Brown of Eaton-under-Heywood

Lord Mance

Appeal No. 53 of 2004
Devendranath Hurnam
Appellant
and
The State
Respondent

[Delivered by Lord Bingham of Cornhill]

1

In Mauritius, as elsewhere, the courts are routinely called pon 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 his 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. In this appeal the Board considers the principles which should guide the courts of Mauritius in exercising their discretion to grant or withhold bail.

The Constitution

2

The 1968 Constitution is, by virtue of section 2, the supreme law of Mauritius. Section 3, in Chapter II ("Protection of Fundamental Rights and Freedoms of the Individual"), provides (so far as relevant for present purposes):

"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."

3

Section 5, in the same chapter, is directed to protection of the right to personal liberty. So far as relevant for present purposes, it provides:

"(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 was intended to 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.

4

Two points may be made on sections 3 and 5 of the Constitution. First, they reflect in very explicit terms the tension which may exist between the rights of the individual, viewed in isolation, and the wider interests of the community as a whole. The Constitution seeks to strike a judicious balance between the two. Secondly, sections 5(1) and (3) and section 10(2)(a) bear a very close resemblance to articles 5(1) and (3) and 6(2) of the European Convention on Human Rights. This is not surprising since, as has been pointed out, Chapter II of the Constitution reflects the values of, and is in part derived from, the European Convention: Neeyamuthkhan v Director of Public Prosecutions [1999] SCJ 284(a); Deelchand v Director of Public Prosecutions [2005] SCJ 215, para 4.14; Rangasamy v Director of Public Prosecutions (Record No 90845, 7 November 2005, unreported). It is indeed noteworthy that the European Convention was extended to Mauritius while it was still a Crown Colony, before it became independent under the 1968 Constitution: see European Commission of Human Rights, Documents and Decisions (1955-1957), p 47. Thus the rights guaranteed to the people of Mauritius under the European Convention were rights which, on independence, "have existed and shall continue to exist" within the terms of section 3. This is a matter of some significance: while Mauritius is no longer a party to the European Convention or bound by its terms, the Strasbourg jurisprudence gives persuasive guidance on the content of the rights which the people have enjoyed and should continue to enjoy.

Before 1989

5

Before 1989 the grant of bail in Mauritius was governed by local statutes but broadly followed, subject to exceptions, the practice established over the centuries in England. It was recognised

"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 [1986] 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

6

In June 1989 the Legislative Assembly passed the Bail Act 1989. Subject to a limited qualification designed to secure the person's attendance at trial, section 4 required the release of a person arrested or detained for an offence punishable by fine only. Section 8, entitled "Circumstances in which bail may be refused", provided:

"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."

7

The terms of section 8 prompt three observations. First, while specifying the circumstances in which a detainee shall not be entitled to be released on bail, the Act nowhere (save in section 4) provides an express entitlement to such release. That entitlement must be found in the general right to liberty protected by section 5 of the Constitution, and by implication from the negative terms of section 8, suggesting that bail must be granted in cases not falling within the prohibited categories. Secondly, the language of section 8(d)(v), read without regard to section 5 of the Constitution, appears to assume that the seriousness of the offence with which a detainee is charged, whether provisionally or otherwise, and the heavy penalty provided by law for that offence, may of themselves render continued detention "necessary" so as to disentitle the detainee from any right to be released on bail. Thirdly, the Act does not expressly identify the risk that a person may not attend to stand his trial, historically the pre-eminent ground for refusing bail, as a ground of disentitlement, although sub-paragraphs (vi) and (vii) may be understood to address that risk.

8

Following the 1989 Act a series of decisions treated the seriousness of the offence and the heavy penalty provided by law as enough, of themselves, to justify the refusal of bail in certain serious classes of case: see, for example, Jogessur v Director of Public Prosecutions [1992] SCJ 65; Bissessur v Director of Public Prosecutions [1993] SCJ 185; Dhooky v Director of Public Prosecutions [1993] MR 340; Boolaky v Director of Public Prosecutions [1995] MR 56; Soobratty v The State [1995] SCJ 277; Director of Public Prosecutions v District Magistrate of Port Louis [1997] MR 158....

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