Michaelmas Term
[2016] UKPC 28
Privy Council Appeal
No 0033 of 2016
JUDGMENT
The Attorney General (Appellant) v Hall
(Respondent) (Bahamas)
From the Court of Appeal
of the Commonwealth of the Bahamas
before
Lady Hale
Lord Wilson
Lord Carnwath
Lord Hughes
Lord Toulson
JUDGMENT GIVEN ON
17 October 2016
Heard on 18 July 2016
|
Appellant
James Guthrie QC
(Instructed by
Charles Russell Speechlys LLP)
|
|
Respondent
(Not participating)
|
LORD HUGHES:
1.
The respondent Chevaneese Hall was convicted before the Supreme Court on
charges of people trafficking laid under sections 3 and 4 of the Trafficking in
Persons (Prevention and Suppression) Act (Chapter 106) (“TIPA”). She had been
brought before the court pursuant to a voluntary bill of indictment laid by the
Attorney General. No point was then taken upon the validity of that form of
process. However, on appeal she contended that there was no power to lay a
voluntary bill. The Court of Appeal upheld that contention and quashed her
conviction. The Attorney General challenges that decision by further appeal to
the Board, for which the Court of Appeal (differently constituted) granted
leave by a majority. The respondent has in the meanwhile left the islands and
has taken no part in this appeal. The point is nonetheless of some general
significance since other cases under this and other statutes are affected by
it.
2.
The issue centres upon the provisions for mode of trial. The basis of
the Court of Appeal decision that there was no power to lay a voluntary bill of
indictment in the present case was its conclusion that the offences with which
the respondent was charged were not “indictable offences”, and moreover that
they were, as a result of the structure of the Criminal Procedure Code, triable
only summarily.
3.
As will be seen, in some respects the usage of terms in the criminal
procedure of the Bahamas differs from that encountered elsewhere in the
Caribbean and in other common law jurisdictions such as England and Wales. One
particular difference, on which all appearing before the Court of Appeal and
the court itself were agreed, relates to the use of the expression “trial on
information.” In the particular usage of the Bahamas, at least in modern times,
the expression “on information” in relation to trial or conviction refers to
proceedings in the Supreme Court before judge and jury. In that, it differs
from the use of “information” in most Caribbean countries and in England, where
that term relates to the commencement of process before the magistrates, and
where trial before judge and jury is normally referred to as trial “on
indictment”. It will be necessary later in this judgment to examine the
implications of this and other differences of usage. “On summary trial” and “on
summary conviction”, however, refer in the Bahamas, as elsewhere, to trial by a
magistrate.
The statute: TIPA
4.
The Act was passed on 9 December 2008 and came into force the following
day.
5.
Section 3 provides:
“3.(1) Whoever engages in or
conspires to engage in, or attempts to engage in, or assist or otherwise
facilitates another person to engage in ‘trafficking in persons’ shall -
(a) on summary conviction -
(i) be sentenced to not
less than three years nor more than five years imprisonment;
(ii) be subject to
forfeiture of property under section 7; and
(iii) be ordered to pay full
restitution to the victim under section 6;
(b) on conviction on
information -
(i) be sentenced to life
imprisonment or to a term not less than five years;
(ii) be subject to
forfeiture of property under section 7; and
(iii) be ordered to pay full
restitution to the victim under section 6.”
The ensuing parts of section 3 define the offence of
trafficking in persons.
6.
Section 4(1) deals similarly with offences relating to the use of travel
or immigration documents for the purpose of trafficking. It provides:
“(1) A person who, for the
purpose of committing or facilitating an offence under subsection (1) of
section 3 conceals, removes, withholds or destroys any -
(a) travel document that
belongs to another person; or
(b) document that
establishes or purports to establish another person’s identity or immigration
status,
is liable on -
(i) summary conviction to
imprisonment for a term of three years;
(ii) conviction on
information for [sic] imprisonment for a term of ten years.”
7.
Section 4(2) is similarly structured for the offence of knowingly
benefitting from trafficking:
“(2) Every person who receives
a financial or other benefit knowing that it results from the offence of
trafficking in persons commits an offence and is liable on -
(a) summary conviction to a
fine of ten thousand dollars or to imprisonment for three years or to both such
fine and imprisonment;
(b) conviction on
information to a fine of 15,000 dollars or to imprisonment for a term of ten
years or to both such fine and imprisonment.”
8.
By contrast, section 5 provides as follows for the different offence of
providing transport:
“5.(1) Whoever knowingly
transports or conspires to transport, or attempts to transport or assists
another person engaged in transporting any person in the Bahamas or across an international
border for the purpose of that person engaging in prostitution commits an
offence and shall be liable on summary conviction to be punished in accordance
with subsections (2) and (3).”
9.
Section 8 of the Act sets out sentencing guidelines for proceedings on
information:
“8.(1) Where
a person is convicted on information of the crime of trafficking in
persons the following provisions as regards his sentence, other than a life
sentence, may apply -
(a) if the convicted person
used, threatened use, or caused another to use or threaten use of a dangerous
weapon, two years may be added to the sentence;
(b) if the victim suffers a
serious bodily injury due to any act or omission of the defendant, or if the
defendant commits a sexual assault against the victim, five years may be added
to the sentence;
(c) if the victim had not
attained the age of 18 years, five years may be added to the sentence;
(d) if, in the course of
trafficking or subsequent exploitation, the defendant recklessly caused the
victim to be exposed to a life threatening illness, or if the defendant
intentionally caused a victim to become addicted to any drug or medication,
five years may be added to the sentence;
(e) if a victim suffers a
permanent life threatening injury, ten years may be added to the sentence;
(f) if the trafficking was
part of the activity of an organized criminal group, three years may be added
to the sentence; or
(g) if trafficking was part
of the activity of an organized criminal group and the defendant organized the
group or directed its activities, five years may be added to the sentence;
(h) if the trafficking
occurred as the result of abuse of power or position of authority, including
but not limited to a parent or guardian, teacher, children’s club leader, or
any other person who has been entrusted with the care or supervision of the
child, four years may be added to the sentence.” [emphasis supplied]
10.
There can be no doubt that the plain wording of sections 3(1),
4(1) and 4(2) creates offences which are intended to be triable either
summarily before the magistrate or before judge and jury in the Supreme Court.
That is what all those sections explicitly say. They provide for differing
maxima sentences according to the mode of trial. Offences of people trafficking
can plainly be of a gravity which calls for trial in the Supreme Court by judge
and jury. The allegation in the present case was of deceptive recruiting of
women off the Bahamas, transporting them to the islands and obliging them to
engage in prostitution, inter alia by confining them in flats provided for the
purpose and threatening them that they would be in trouble with the immigration
authorities if they did not comply. The section 3 offence, in particular, may involve, inter alia,
abduction of persons, fraud, deception or the abuse of power. As can be seen
from section 3(1)(b)(i), it may carry, on trial before the Supreme Court, a
maximum of life imprisonment.
11.
If there were any room for doubt about the Parliamentary intention to
create by these sections offences triable either by judge and jury or
summarily, that intention is confirmed by:
(i) the contrasting
provisions of section 5 which explicitly create only summary offences;
(ii) the fact that a
sentence of life imprisonment is open to the court upon conviction of the
principal offences contrary to section 3(1); and
(iii) the sentencing guidelines
in section 8; these are in terms confined to trials on information, that is to
say before judge and jury; they can be seen to apply to the more serious
examples of the offences.
12.
In the present case the voluntary bill preferred originally charged not
only offences contrary to sections 3 and 4 but also two offences contrary to
section 5. The error was spotted at some stage during the trial and in due
course the judge correctly discharged the jury from returning verdicts on those
two counts, which were triable only summarily.
The Criminal Procedure Code: either way offences
13.
The difficulty, and the basis for the Court of Appeal’s decision, lies
in the general statutory provisions for mode of trial which are to be found in
the Criminal Procedure Code (Chapter 91). This was passed originally in
December 1968, but has been amended frequently since.
14.
The Code provides for trial both in the Supreme Court and summarily in
the Magistrate’s Court: see sections 4 and 5, discussed below. In the case of
the former, the general rule is contained in section 36 and is that trial can
take place only where there has been a preliminary inquiry before the
magistrate and committal by him to the Supreme Court for trial. As will be
seen, there are two exceptions to the necessity for a preliminary inquiry,
contained in sections 256 and 258. Those apart, however, section 141 provides:
“141.(1) Every person
committed for trial before the Supreme Court shall be tried on an
information preferred by the Attorney-General, and such trial shall be had
by and before a judge and a jury to be summoned, drawn and empanelled according
to the provisions of the Juries Act or any law for the time being in force
repealing and replacing that Act.” [emphasis supplied]
It is to be noted that, unlike the position in some other
jurisdictions, trial by judge and jury in the Supreme Court in the Bahamas does
not invariably involve an indictment. As will be seen, that term does continue
to be used, in a more limited context, but the paradigm case contemplated by
the Code is trial on a document called an information. Schedule 2 to the Code
prescribes the form of an information. It is this document which must contain
counts formed of statement of offence and particulars of offence, thus
corresponding closely to the required form of an indictment in other
jurisdictions.
15.
As to trial by magistrates, section 5 provides:
“5.(1) Any offence under any law
for the time being in force, when any court is mentioned in that behalf in such
law, shall be tried by such court unless removed to any other court for trial
under any provisions of this Code. For the purposes of this subsection a
provision in any law for an offence to be tried summarily shall be construed as
a reference to the trial of such offence by a Magistrate’s Court.” [emphasis
supplied]
16.
Sections 3(1)(a), 4(1)(i), 4(2)(a) and 5(1) of TIPA are thus examples of
statutory provisions for summary trial before the magistrates, whereas sections
3(1)(b), 4(1)(ii) and 4(2)(b) contemplate trial on information before the
Supreme Court.
17.
The Code contains in section 214 and Schedule 3 a specific process
affording to the accused a right to elect for trial by jury in the Supreme
Court in the case of certain nominated offences amongst those which may be
tried in either court. Section 214 provides:
“214.(1) Where a person
charged with an offence referred to in the Third Schedule to this Code is
brought before a Magistrate’s Court presided over by the Chief Magistrate, by a
Deputy Chief Magistrate, by a Senior Stipendiary and Circuit Magistrate or by a
stipendiary and circuit magistrate, the court shall inform the accused person
that he may be tried summarily for such offence but that he has the right to be
tried for that offence by jury before the Supreme Court, and shall ask him
whether he wishes to be tried by jury or consents to be tried summarily by such
magistrate; and if the accused person does not consent to be tried summarily,
the presiding magistrate shall either remit the case to some other magistrate
to hold a preliminary inquiry or may himself hold such preliminary inquiry in
respect of the charge, in accordance with the provisions of this Code.
(2) If, in a case such as is
referred to in subsection (1) of this section, the accused person consents to
be tried summarily in respect of such offence, the Chief Magistrate … [or other
qualified magistrate] … may proceed to hear and determine the charge in
accordance with the provisions of this Part of this Code:
Provided that -
(a) if the presiding
magistrate does not consider it expedient in the interest of justice to deal
with any such particular case summarily, he may refuse to do so and in such a
case a preliminary inquiry shall be held as aforesaid; and
(b) the presiding
magistrate shall not in any case proceed to hear and determine summarily a
charge against any person which may be tried on information, if the
Attorney-General in writing directs that the case shall not be tried
summarily.”
Schedule 3 then lists certain statutory offences to which
this procedure applies. All are offences which, by their statutory source, are
capable of being tried either summarily or in the Supreme Court. The TIPA
offences have not, however, been added into Schedule 3. Nor have offences
contrary to the Dangerous Drugs Act 2000 or the Firearms Act (Chapter 213) as
variously amended, which statutes contain offence-creating sections structured
very similarly to sections 3 and 4 of TIPA.
18.
The effect of section 214 is thus to give to the accused person a right
in the case of Schedule 3 offences to elect trial by jury in the Supreme Court,
whether or not the prosecution would prefer summary trial before the magistrate.
With respect to the way the section was described in the Court of Appeal,
perhaps because of the submissions made before that court, section 214 does not
give the accused the right to elect for summary trial. That is clear from the
provisions of section 214(2) which show that either the magistrate or the
Attorney General is entitled to insist on the case being committed to the
Supreme Court against the wishes of the accused. Conversely, however, if the
accused wishes to be tried in the Supreme Court, the case must
thereafter proceed by way of preliminary inquiry and, if there is a case to
answer, by way of committal to that court.
19.
It should be noted that the right to elect jury trial which is afforded
by section 214 differs from the right to elect trial which is provided for in
some other jurisdictions where it applies to any offence which is capable of
trial either summarily or by jury. The section 214 right of election exists
only in relation to the limited list of cases specified in Schedule 3.
20.
En route to its conclusion in the present case, the Court of Appeal
expressed the view that the effect of the Code was that criminal offences in
the Bahamas can only be in one of three categories for the purpose of mode of
trial. The first, it said, consists of offences which can only be tried
in the Supreme Court (such as murder). The second comprises offences which can only
be tried before the magistrates (such as the offence under section 5 of TIPA).
The third comprises offences listed in Schedule 3 and thus governed by section
214. This reasoning led the Court of Appeal to conclude that the offences
created by sections 3 and 4 of TIPA, including those with which the respondent
was charged, were triable only summarily, because they were neither specified
to be triable only on information nor were they listed in Schedule 3.
With respect to this view, it is not compelled by the provisions of the Code,
and it is directly contrary to the wording of sections 3(1)(b), 4(1)(ii) and
4(2)(b) of TIPA (and of other comparable statutes), all of which say plainly
that the offences are capable of being tried in the Supreme Court. There is a
fourth category, namely offences which are capable of being tried in either
court, but in respect of which the accused has no right of election.
21.
The Code’s framework for mode of trial proceedings is essentially
provided by section 117, as follows:
“117. Whenever any charge has
been brought against any person in respect of an offence not triable summarily,
or which may be tried either summarily or on information and as to which the
magistrate before whom the case is brought is of the opinion that it ought to
be committed for trial before the Supreme Court or the accused person, having a
right to elect, desires to be tried before the Supreme Court, a preliminary
inquiry shall be held in accordance with the provisions hereafter in this Code
contained.”
Thus there is to be a preliminary inquiry in the Magistrate’s
Court, with a view to committal for trial if there is a case to answer, in any
one of three cases: (1) where the offence is “not triable summarily”, (2) where
the offence may be tried either way but the magistrate considers that it ought
to be committed for trial or (3) where the offence may be tried either
way but the accused has a right to elect trial by jury and does so.
22.
The ensuing sections of the Code provide for the procedure to be adopted
at the preliminary inquiry, and sections 125-127 for the possible outcomes.
These are either (1) discharge if there is insufficient evidence to put the
accused on trial (section 125), (2) reversion to summary trial if the
magistrate considers the case appropriate for this, but not if the accused has
a right to elect trial by jury and has exercised it (section 126) or (3)
committal for trial to the Supreme Court (section 127). Section 126 says:
“126. If, at the close of or
during the preliminary inquiry, it shall appear to the court that the offence
is of such a nature that it may suitably be dealt with under the powers
possessed by the court and is not a case in which the accused has a right to
elect to be tried on information and has so elected, the court may, subject to
the other provisions of this Code, hear and finally determine the matter and
either convict the accused person or dismiss the charge: …”
23.
The respondent’s submission, accepted by the Court of Appeal, was that
the section 214/Schedule 3 offences constituted the only form of offence
triable either way. But that does not follow from the Code, which is equally
consistent with the section 214/Schedule 3 offences constituting simply a
subset of offences triable either way. Section 117 can no doubt be read on the
basis that all either way offences are within section 214, but it certainly
does not compel that reading. Section 126 tends to suggest the contrary, since
if all either way offences carried a right of election for trial by jury it
would not be necessary to identify offences carrying the right of election as
exceptions to the power to revert to summary trial; the section would simply except
cases in which the accused had elected trial. Since the Code is thus at best
equivocal, there is no reason not to give effect to the plain wording of TIPA.
24.
Moreover, the structure used in TIPA is not a departure from ordinary
practice. Both the Firearms Act (Chapter 213) and the Dangerous Drugs Act 2000
use the same structure of creating offences and prescribing different levels of
maximum punishment according to whether the trial is summary or on information.
Both statutes also create summary only offences. The Firearms Act also creates
offences which are only triable on information.
25.
In relation to the Firearms Act, examples of either way offences
structured in the same way as sections 3 and 4 of TIPA can be seen in sections
5(5), 9(2), 15(2), 30(2), 32(5), 36(3) and 36(4). These, entirely
understandably, cover offences where the gravity is likely to be variable, such
as possession without a licence or certificate and supply of firearms to those
previously convicted. Other offences, such as making false statements in
relation to dealers’ permits, the keeping of dealers’ records and allowing a
person under 18 to be in possession of a gun, are summary only: see sections
22(2), 26(5), 28, 29(2), 31(2) and 37. Thirdly, some obviously serious offences
are made triable only on information, such as possession with intent to
endanger life contrary to section 33. The maximum penalties laid down for the
either way offences when tried on information are generally at least twice as
high as the maxima applicable on their summary trial; for offences relating to
prohibited weapons under section 30(2) and to the shortening of shotguns under
section 36(4) the maximum on summary trial is five years but on trial on
information it is 20 years. If the conclusions of the Court of Appeal are
correct, none of these offences, however serious, can be met with the penalty
stipulated for by Parliament and the sentence can never be greater than five
years.
26.
A similar pattern is to be seen in the Dangerous Drugs Act. Sections
22(2), 22(4), 28(1) and 29(2) create offences for which differing maxima of
punishment are provided according to whether they are tried summarily or on
information. Section 29(5), by contrast, makes attempts to commit offences
under the Act summary only. Most of the offences created under the Act are
capable of being either more or less serious, so that the decision to make them
triable either way is readily comprehensible. Some of them, such as engaging in
continuing criminal enterprises involving the commission of offences contrary
to the Act under section 28, are potentially extremely serious and carry a
maximum sentence, on trial on information, of 40 years. It would be astonishing
if these offences were triable only summarily, and thus subject to the maximum
sentence of five years which applies to such trial. Parliament would in that
event have legislated for a maximum sentence of 40 years entirely in vain.
27.
None of the offences thus described in the Firearms Act and the
Dangerous Drugs Act as triable either on information or summarily have been
listed in Schedule 3 to the Code, and accordingly section 214 does not apply to
them. If the conclusion of the Court of Appeal is correct, none of these
offences is triable in any way other than summarily. It is of note that
consideration seems very likely to have been given to adding them to the
Schedule 3 list, since several (but not all) of them have been added to the
adjacent Schedule 4 list of offences for which magistrates are required to have
regard to sentencing guidelines. Assuming that their omission from Schedule 3
is thus deliberate rather than a matter of oversight, it does not follow that
this supports the Court of Appeal construction so that the offences have
intentionally been made triable only summarily. On the contrary, if that had
been the intention, the offence-creating sections could not have said what they
do about the offences being triable either summarily or on information.
28.
These three statutes, and it may be others also with similar provisions,
represent legislation subsequent to the enactment of the Criminal Procedure
Code. Whilst it is no doubt true that subsequent offence-creating statutes are,
unless the contrary intention appears, to be read as intended to be operated
according to the general procedural system enacted in the Code, the latter must
in the event of irreconcilable conflict give way to later Parliamentary
enactments. The wording of these three statutes is so clear in its creation of
offences which are to be tried either summarily or on information that it is
impossible to read it as deprived of that meaning by the Code, even if it were
correct that the latter can only be read in the way accepted by the Court of
Appeal.
29.
Whilst in some other jurisdictions, including England and Wales, the right
of the accused to elect trial by jury applies to all offences which are triable
either way, there is no compelling reason why every Parliament should adopt
this practice. Where it applies, it has sometimes generated debate whether it
is an appropriate use of the resource-intensive system of jury trial for the
accused always to have the right to invoke that form of trial even for
relatively trivial offences, such as the theft of small items from shops, and
whether or not the accused has a high reputation to lose if convicted. There is
nothing irrational about confining the right to elect trial by jury to
nominated offences, whilst leaving the mode of trial otherwise to be determined
in the first instance by the prosecution, subject to the power of the magistrate
at the preliminary inquiry to insist on summary trial under section 126 of the
Code.
30.
For all these reasons, the Board concludes that the TIPA offences
contrary to sections 3 and 4 are indeed, as they say they are, triable either
way. There is no right of election for the accused. The prosecution is entitled
to ask the magistrate to proceed by way of preliminary inquiry, and will no
doubt either do so or invite him to conduct a summary trial according to the
gravity of the circumstances alleged to constitute the offence. Whatever they
may ask the magistrate to do, s/he has the power under section 126 to determine
that the offence is suitable for summary trial, and to proceed in that way.
The Criminal Procedure Code: the voluntary bill procedure
31.
That, however, does not answer the question whether the trial in the
present case was valid. It did not follow a preliminary inquiry under section
117 of the Code and committal by the magistrate. It followed the preferment by
the Attorney General of a “voluntary bill of indictment”.
32.
The preferment of a voluntary bill of indictment is specifically dealt
with by section 258 of the Code. It says:
“258.(1) Notwithstanding
any rule of practice or anything to the contrary in this or any other written
law, the Attorney-General may file a voluntary bill of indictment in the
Supreme Court against a person who is charged before a Magistrate’s Court with
an indictable offence whether before or after the coming into operation of
this section, in the manner provided in this section. [emphasis supplied]
(2) [formal requirements]
(3) Upon the filing of a
voluntary bill, the Registrar shall issue a summons requiring the attendance of
the accused person before a judge at a date specified in the summons, which
date shall not be earlier than seven days after service upon the accused person
of the documents mentioned in paragraph (c) of subsection (2).
(4) Where a voluntary bill
is filed against a person who is before a Magistrate’s Court charged with an
offence triable on information, the prosecutor shall, within a reasonable time
after the filing of the voluntary bill, produce to the magistrate and to the
person charged, respectively, a copy of the voluntary bill and of the relevant
summons issued by the Registrar under subsection (3).
(5) [provisions enabling the
magistrate, in a case where proceedings had begun before him before the
voluntary bill was preferred, to remand the accused to the Supreme Court either
on bail or in custody.]
(6) The provisions of
sections 141 to 144 shall mutatis mutandis apply to an accused person against
whom a voluntary bill is filed as if that person were a person who has been
committed for trial by a magistrate.
...”
Sections 141 to 144 are the sections of the Code which
provide for the mechanics of trial on information before the Supreme Court of
those who have been committed for trial by the magistrate. So a person against
whom a voluntary bill of indictment is preferred by the Attorney General is
tried on information before the Supreme Court.
33.
The use of the term “voluntary bill of indictment” in this section thus
preserves in the Bahamas the old word for the document and process upon which
trial in common law countries takes place before judge and jury. Its use in the
Code is, however, distinct from the same term when used in some other
jurisdictions, such as England and Wales, where all trials before judge and
jury are trials on indictment and a “voluntary bill of indictment” is an
indictment preferred with the leave of a senior judge. The Code does also
recognise, in the adjacent provisions of sections 256 and 257, the power of a
judge of the Supreme Court to consent to the preferment of what is termed
simply a “bill of indictment” on the application of the Attorney General. If
the judge exercises this power, then, as in the case of a “voluntary bill”
under section 258, no preliminary inquiry before the magistrate takes place,
and if any has begun it is brought to an end in favour of a direct summons to
the accused to appear before the Supreme Court. Section 257 contains a
provision comparable to section 258(6) applying sections 141-144 (trial on
information) to the case of a bill of indictment preferred by leave of the
Supreme Court judge.
34.
However, it is a condition for the exercise by the Attorney General of
the section 258 power to prefer a “voluntary bill of indictment”, and thus to
get the accused by that route before the Supreme Court, that he be charged with
“an indictable offence”: see section 258(1). Indeed precisely the same form of
words is used to impose the same condition upon the section 256-257 power of
the judge of the Supreme Court to consent to the preferment of a “bill of
indictment”. These two forms of process are grouped together, and alone, in
Part X of the Code (sections 256-259), under the heading “Procedure for
Indictment of Offenders”. So, notwithstanding that the term “indictment” and
its derivative “indictable” have largely been overtaken in the Code by
“information” in relation to the process for trial before judge and jury in the
Supreme Court, they remain in use for the purposes (a) of describing the two
special processes in sections 256-257 and 258 which can shortcut committal by
the magistrate, and (b) of categorising the offences in relation to which those
shortcut processes are available.
35.
For the present case, the crucial statutory provision is in the
definition section of the Code, section 2, which provides that:
“In this Code, unless the context
otherwise requires -
…
‘indictable offence’ means save as
is provided by section 214 any offence which is triable only on information
before the Supreme Court;”
If this definition is applied to section 258 it means
that an Attorney General’s voluntary bill of indictment can be preferred only
where either (1) the offence is triable only on information or (2) it is
an offence where section 214 provides the accused with a right to elect trial
by jury. The TIPA offences under sections 3 and 4 are not triable only on
information, nor are they within section 214, since they are not listed in
Schedule 3.
36.
Unless, therefore, this definition does not apply, the Attorney General
had no power to prefer a voluntary bill of indictment in relation to the
respondent’s offences. Although those offences were triable either way, and
there was no right of election for the accused, they did not come within
section 258. Nor, if that is correct, could a Supreme Court judge ever give
leave to prefer a bill of indictment under section 256 in relation to these
offences, even if the kind of conditions which frequently lead to the use of
such power in various jurisdictions were to exist, such as for example the
prior committal of accused A and the later arrest of his alleged accomplice
accused B who ought to be tried together with him, or the frustration by a
single accused of the preliminary inquiry process, such as by deliberate delay
or prolongation, or interference with witnesses.
37.
The submission of the Attorney General before the Board was that this
definition does not apply to section 258 because the context otherwise
requires. The context was said to be (i) the clear language of sections 3 and 4
of TIPA and (ii) the provisions of sections 4 and 5 of the Code.
38.
The Board entirely agrees that the language of sections 3 and 4 of TIPA
is clear, and that it evinces a plain Parliamentary intent to create offences
triable either way. It is for that reason that the Court of Appeal’s tripartite
classification of offences for the purposes of mode of trial fell into error:
see paras 20-30 above. But the correct meaning of section 258 of the Code is a
different question from the classification of offences. The inability of the
Attorney General to prefer a voluntary bill of indictment may be inconvenient
to him, but it does not prevent sections 3 and 4 offences from being tried by
judge and jury following preliminary inquiry and committal. The language of a
later statute (here TIPA) cannot provide context for the interpretation of
words in the Criminal Procedure Code. The context to which the definition
section of that Code refers is usage within the Code.
39.
Sections 4 and 5 of the Code say this:
“4. Subject to the express
provisions of this Code and of any other law -
(a) the Supreme Court may
try any offence; and
(b) a Magistrate’s Court
may try any offence in respect of which jurisdiction is expressly conferred
upon such court, or upon such court when presided over by a particular grade of
magistrate, by the Magistrates Act or any other law for the time being in
force.
5.(1) Any offence under any law
for the time being in force, when any court is mentioned in that behalf in such
law, shall be tried by such court unless removed to any other court for trial
under any provisions of this Code. For the purposes of this subsection a
provision in any law for an offence to be tried summarily shall be construed as
a reference to the trial of such offence by a Magistrate’s Court.
(2) When no court is
mentioned in the manner referred to in subsection (1) of this section in
respect of any offence, such offence shall be tried in accordance with this
Code.”
40.
The Attorney General draws attention to the provision in section 4(a)
that the Supreme Court may, by default, try any offence. That is so, but that
rule is subject to the Code and to any other law. It is not the case that the
Supreme Court can call before it any offence, for it cannot try an offence
which is summary only, as section 5, as well as the sections of TIPA here in
question, plainly recognises. Section 4 tells one nothing about when the
Attorney General can by-pass the preliminary inquiry to take a case to the
Supreme Court; it is section 258 which does this. As to section 5(1), it is
true that that section contemplates offences being removed to the Supreme Court
under the provisions of the Code, and that a voluntary bill of indictment
preferred under section 258 constitutes one method of such removal. But that
does not assist the argument, since such jurisdiction in the Supreme Court only
exists when a case has been removed to it “under the provisions of this Code”,
and if section 258 is governed by the definition of indictable offence in
section 2, the respondent’s case could not be removed to the Supreme Court by
those means.
41.
There remains no little difficulty, and some ambiguity, as to the use of
the terms “indictment” and “indictable offence” in the criminal law of the
Bahamas. There would be no such difficulty if the term “indictment” had been
superseded by the term “information”. Unfortunately this is not entirely so.
42.
Except for its use in sections 256-259 the term “indictment” appears in
only one place in the Criminal Procedure Code. In section 272 it is used,
together with “or other document prepared for use in particular legal
proceedings”, to exempt the charge-sheet and similar documents from the
anonymity provisions applicable to complainants in rape offences. As to
“indictable”, Schedule 3, describing offences where the accused has a right of
election for trial by jury, calls them “indictable offences triable summarily”,
and section 151, which contains the power to quash counts, permits quashing not
only when the information charges an offence “not triable by the court”, but
also (and it would seem unnecessarily) where it is not “an indictable offence”.
Otherwise, “indictable” is wholly absent from the Code. These usages are not
entirely consistent. They show that the former terminology of indictment has
not entirely been superseded even in the Code. It is possible that the use of
the language of indictment in sections 256-259, and perhaps in section 151,
might be attributable to the persistence of an older usage, whilst that in
section 272 may be to cater for the occasion of a voluntary bill, but this
remains convoluted. An alternative rationalisation might be to treat “trial on
information” as the appropriate usage for the form of trial in the Supreme
Court, and “information” as the document comprising the formal charge, whilst
“indictable offences” is a term used to describe the categorisation of offences
for the purpose of determining mode of trial. If this were the correct
understanding, it might be possible (if potentially confusing) to ask first
whether the offence was “indictable”, in the sense of being capable of trial by
judge and jury in the Supreme Court and then to speak of it being tried, when
it gets there, “on information”.
43.
To essay these attempts at rationalisation is, however, to fail to take
into account the way in which the language of the Criminal Procedure Code
differs radically from the terminology used in the Penal Code. The long title
of the Penal Code is:
“An Act to establish a Code of
crimes punishable on indictment, and of certain similar and other
offences punishable on summary conviction.” [emphasis supplied]
In the Penal Code, “crime” is defined (in section 4) as
an offence “punishable on indictment”, whether actually tried summarily or “on
indictment”, and “felony” is similarly defined as an “indictable” offence
carrying a particular level of punishment. More importantly, “offence” is
defined as meaning “either a summary offence or an indictable offence” and
“indictable offence” as “any offence punishable under Book III of this Code, or
punishable on indictment under any other law”. Book III, containing several
parts or “titles” defines the principal offences in the criminal calendar.
Other provisions of the Penal Code are consistent with this usage. Thus section
86(4) makes an aider or abettor “punishable on indictment or on summary
conviction, according as he would be punishable for committing that crime of
offence”. Similar usage of “indictment”, often together with “indictable” is to
be found throughout the Penal Code, for example in sections 119 (power to
fine), 125 (repeat offenders), 298(3) (infanticide), 312 (child destruction)
and 317 (defamatory material). Throughout, the Penal Code thus distinguishes,
in the manner of other Caribbean jurisdictions, or of England and Wales,
between indictable and summary offences and trials. It is quite clear that the
Penal Code, when it refers to indictments or to indictable offences, cannot
possibly be confining itself to offences brought before the Supreme Court by
the short-cut processes under sections 256-259 of the Criminal Procedure Code,
that is to say by the intervention of either the Supreme Court judge or the
Attorney General to by-pass the ordinary process of preliminary inquiry before
the magistrate. On the contrary, it refers to offences which are triable before
judge and jury in the Supreme Court, and it does so in contrast to summary mode
of trial before the magistrate. Whereas the Criminal Procedure Code contains
frequent references to trial on information and very few to indictments or
indictable offences, the pattern of the Penal Code is the reverse. It very
rarely refers to trial on information, but it does do so from time to time. It
does so in section 36 (admissibility of the deposition of a child) and in
section 312 (alternative verdicts where infanticide or murder of a new-born
child is charged). Section 262 (summary trial of offences triable in the
Supreme Court) uses both expressions. It is made to apply to any case where the
magistrate has power to proceed summarily in relation to a person charged
before him or her “with an indictable offence under this Code or any statute”.
Then, by section 262(4), if the magistrate dismisses the charge, such dismissal
has the same effect as if the accused had been acquitted “on a trial for the
offence on information at the sessions”.
44.
It follows that it is not possible to discern any single rationale in the
usage by the criminal law in the Bahamas of the terms “indictment” and
“indictable offence”. In particular, it is not possible to say that in every
case where the former two terms are used, or still used, they must now mean to
refer to any offence which is capable of being tried on information. If
that were to be said, it would involve a significant re-writing of the
definition of “indictable offence” in section 2 of the Criminal Procedure Code.
The difficulty in the present case does not arise principally from the
inconsistent use of “indictment” and “information”, for the definition in
section 2 provides a bridge between the two in its statement that “indictable”
refers to offences triable on information. The difficulty arises because the
definition limits the offences to which it relates by the use of the word
“only”.
45.
These differences of usage certainly give rise to doubt about how far
Parliament ever expressly confronted the combination in the Criminal Procedure
Code of the definition of “indictable offence” and the provisions of section
258 for voluntary bills (and indeed those of section 257 for judges’ bills of
indictment). Nor is it at all easy to see why a voluntary bill should be
limited to offences which are either triable only on information or are
ones where the accused has a right to elect trial by jury, and cannot be
preferred in the case of any other either way offence. Section 214(2) makes it
clear, by the second proviso, that the Attorney General can, in relation to
offences listed in Schedule 3, override not only the accused’s wishes as to
mode of trial, but also the magistrate’s view. That is consistent with the
voluntary bill procedure applying to section 214/Schedule 3 offences but there
appears no obvious reason why he should have such decisive power in relation to
those but not to other either way offences. It is at least possible that the
present juxtaposition of sections 2 and 258 is attributable to their having
arrived in the legislation by amendments at different times, and that the
differences when compared with the Penal Code are the consequence of that
latter Code having its origins in form as early as 1924. But whatever the
explanation, there is simply no available method of construction by which
section 258(1) can be read as if, when it says “indictable offence”, it means
“any offence triable by the Supreme Court on information”, for that would
involve simply expunging the word “only” from the definition in section 2. If,
as it may be, that is what ought to be in section 258, it is a matter for
Parliament to achieve by amendment, rather than for the courts by way of what
might be called construction but would in reality be simple re-writing.
Conclusion
46.
For these several reasons, the conclusions of the Board are these.
(a)
The effect of the Criminal Procedure Code is not to limit offences for
mode of trial purposes to the three categories postulated by the Court of
Appeal.
(b)
For the purposes of mode of trial, offences in the Bahamas may be
categorised in four groups: (i) offences which are triable only by judge
and jury in the Supreme Court, (ii) offences which are triable either way
without the accused having any right to elect trial by jury, (iii) offences
which are triable either way but in relation to which the accused has a right
to elect trial by jury pursuant to section 214 and Schedule 3 of the Criminal
Procedure Code and (iv) offences which are triable only summarily.
(c)
Where an offence falls into category (ii) the prosecution may invite the
magistrate to proceed either by way of summary trial or by way of preliminary
inquiry with a view to committal to the Supreme Court for trial by judge and
jury on information. The accused has no right to elect trial by jury. But the
prosecution does not have unfettered power to decide the mode of trial. That
power belongs to the magistrate, who may determine either that a case which the
prosecution would be content to be tried summarily ought to be sent to the
Supreme Court, or that an offence which the prosecution would prefer to go to
the Supreme Court ought to be tried summarily. The magistrate will no doubt
hear both parties before arriving at a decision as to mode of trial.
(d)
The Attorney General’s power to prefer a voluntary bill of indictment is
now the subject of statutory definition in section 258 of the Criminal
Procedure Code. That section requires the offence to be “an indictable offence”
as defined in section 2. The consequence of the definition in section 2 is that
a voluntary bill can only be preferred in relation to categories (i) and (iii)
set out in conclusion (a) above.
(e)
The offences created by sections 3 and 4 of TIPA are category (ii)
offences.
(f)
It follows that there was no power to prefer a voluntary bill in
relation to them.
(g)
Whether the Attorney General ought to have power to prefer a voluntary
bill in the case of category (ii) offences, thus removing the necessity for a preliminary
inquiry before the magistrate, is a matter of policy for Parliament; a
comparatively simple legislative amendment can achieve that result if
Parliament so decides.
47.
The Board will accordingly humbly advise Her Majesty that the
appeal of the Attorney General ought to be dismissed.
