By RASHAD ROLLE

Tribune News Editor

rrolle@tribunemedia.net

FORMER Court of Appeal president Dame Anita Allen said prosecutors should be more aggressive in seeking the death penalty in appropriate murder cases.

She also weighed in on the topical bail issue, saying judges must strike the right balance between upholding the liberty of accused people and protecting the public.

She said it is difficult to justify giving bail to people suspected of committing multiple offences while on bail, adding that bail applications in such cases should be denied and the person’s bail revoked.

Although the death penalty is legal in The Bahamas, many believe that the Privy Council ruling makes it unlikely that the penalty would ever be upheld.

 Dame Anita, however, called for “a more aggressive approach by the prosecution to apply in appropriate cases for the imposition of the death penalty on conviction of murder”.

 She said: “Significantly, the death penalty is still a punishment for murder prescribed by the law of The Bahamas, albeit, since the Privy Council’s ruling in Bowe and Davis v R (2006), its imposition is discretionary, and since Maxo Tido v R (2011) (following Trimmingham v R (2009), it’s imposition is only lawful if imposed in cases in which the facts are extreme and exceptional or “the worst of the worst” or the” rarest of the rare”.

 “That, notwithstanding, it is conceivable that a differently constituted Privy Council may well find that a case from this jurisdiction falls in the above category, or alternatively may distinguish or depart from the stated authorities on the lawfulness of its imposition in other category of cases. It follows, therefore, that while the death penalty remains part of our law, it ought to be imposed in cases appropriate for its imposition in accordance with the authorities by which we are bound.

 “While we will never know whether the death penalty is a deterrent to others who would commit murder, yet one thing we do know, and that is, that execution will deter that convict from committing murder again!”

 The bail comments of Dame Anita, a former acting Chief Justice and the current head of the Law Reform Commission, come days after the Davis administration revealed legislation that would revoke bail of people who commit crimes or break their bail conditions while on bail.

 Defence lawyers said the amendment won’t change much because such people can still apply to the Supreme Court, where judges can use their discretion.

 Dame Anita said: “A delicate balance must be struck between the personal liberty of an accused to be on bail, and the public’s interest to be protected from the commission of violence against them or against witnesses, repeat offending, absconding, tampering with evidence, or otherwise obstructing the course of justice.

 “Moreover, the jailhouse grapevine will advise an accused not to plead guilty ever and will persuade him to apply for bail on the basis that he is not likely to be tried within a reasonable time. It will encourage him to use every device he can think up to frustrate the ends of justice, including demanding a new lawyer, feigning illness and what not, to delay the trial, and to buy years of time on bail, hoping that witnesses will forget their evidence, or die.

 “In these circumstances, the court’s duty is to achieve fairness and balance, to ensure that a fair trial is not frustrated by the conduct of the accused. The judge is tasked to consider whether the right to a fair trial should take precedence over his personal liberty, and the answer lies in whether his conduct amounts to grounds which justify the limitation of his fundamental right to liberty.”