IN THE SUPREME COURT OF
THE TURKS AND CAICOS ISLANDS
CR 45/06 46/06 44/07
RICARDO HARVEY RAMCHARITAR
Case number CR 16/08
RICARDO HARVEY RAMCHARITAR
ANGELA WHARTON RAMCAHRITAR
L Franklyn for prosecution/applicant C Barnett for surety/ respondent
Hearing: 8 April 2011 Ruling: 19 April 2011
1. Ricardo Ramcharitar and Angela Ramcharitar are husband and wife although they have been estranged for some years. Ricardo Ram charitar faces a number of charges of fraud. He was first charged in September 2006 and was remanded in custody. He was committed to the Supreme Court for trial and the cases are on files numbers CR 45 and 46/06 and 44/07. The offences in case number CR16/08, in which he is charged with his wife, were committed by him whilst he was in prison on remand. The allegation against his wife was that she had assisted him in those offences. She has been tried on that indictment and acquitted of all charges in it pursued against her.
2. During the time he was in custody, Ricardo Ramcharitar made repeated applications for bail. They were repeatedly unsuccessful. During 2008, he developed a tumour on his back and many of the later applications sought bail on the basis that the prison was not giving him an opportunity to have the tumour removed. The prison authorities arranged for him to be seen by a doctor to examine the tumour. Following that examination, the doctor's opinion was that it would be advisable to have it removed although he did not consider it was likely to be malignant and, therefore, posed no threat to the prisoner's general health.
3. During 2008, Mr Ramcharitar complained more and more that the tumour was growing and, towards the end of that year his complaint was that it had become sufficiently extensive effectively to prevent the use of his arm. Eventually, in October 2008, I saw the tumour and was shocked to see how extensive it was. In response to my enquiry, the prison authorities advised that it could not be removed by the medical authorities in Turks and Caicos Islands at that time.
4. Mr Ramcharitar is from Trinidad and his application, in consequence, was to be able to leave the jurisdiction in order to have treatment there. I ask for medical evidence as to the need to remove the tumour and when and by which doctor it could be done. That evidence was produced and confirmed as genuine and necessary by the Director of Health. The Court was also advised that Mr Ramcharitar had health insurance to cover the operation in Trinidad.
5. The prosecution objected to bail on the ground that, if he was allowed to leave the jurisdiction, it was unlikely he would ever return — an objection that present events suggest is correct.
6. A relevant factor in my decision was that the length of time the defendant had been in custody as an unconvicted prisoner was already the equivalent of more than a three-year sentence of imprisonment. It was also clear that the first trial date was likely to be some months away. I granted him bail in the sum of $10,000 and took a surety in the same sum from his wife. He was ordered, on the strength of the medical prognosis from Trinidad, to return in time for trial on 16th of March 2009. He did not return and has still not done so.
7. The prosecution has now summoned Mrs Ramcharitar to show cause why she should not have her recognisance estreated. Mr Franklin acknowledges that the Court has power to order the whole of the recognisance forfeit or any lesser sum and even to release a surety without any payment. At the same time, he correctly points out that a line of authority in England makes it clear that the courts should regard failure by a surety to ensure the attendance of the accused as a breach of a very serious obligation. The starting point in any such decision by a court should be to order the forfeiture of the whole sum.
8. The seriousness of the commitment by a surety and of the consequences was explained by Rose LI in R v Stipendiary Magistrate for Leicestershire ex p Kaur:
"In the ordinary way a person who enters into a recognisance as surety for the attendance of an accused at trial should expect, if the accused does not attend, that the recognisance will be estreated, that is forfeit, and that, if it is not paid, other penalties, including imprisonment, may well be imposed on the surety. The proper administration of criminal justice demands nothing less."
9. In deciding whether or not to do so, the fundamental test is not the degree of the surety'sculpability, although that may be a relevant factor especially where it is high, but that the surety:
"has seriously entered into a serious obligation and ought to pay the amount which he or she has promised unless there are circumstances in the case, either relating to means or culpability, which make it fair and just to pay a smaller sum"; R v Horseferry Road Stipendiary Magistrate, ex p Pearson  1 WLR 511 per Widgery LCJ
10. Since the enactment of the Bail Act, 1976, and the Police and Criminal Evidence Act, 1984, in England, the requirements in respect to bail have changed but the courts have emphasised that many of the general principles to be applied by the courts remain unchanged. In the case of R v Maidstone Crown Court ex p Lever and Connell  1 Cr App R 524, Butler- Sloss LI re-emphasised the continuing postion:
"The general principle is that the purpose of a recognisance is to bring the defendant to court for trial. The basis of estreatment is not as a matter of punishment of the surety, but because he has failed to fulfil the obligation which he undertook. The starting point on the failure to bring a defendant court is the forfeiture of the full recognisance. The right to estreat is triggered by the non-attendance of the defendant at court. It is for the surety to establish to the satisfaction of the trial court that there are grounds upon which the court may remit from forfeiture part or, wholly exceptionally, the whole recognisance. The presence or absence of culpability is a factor but the absence of culpability ... is not in itself a reason to reduce or set aside the obligation entered into by the surety to pay in the event of a failure to bring a defendant court. The court may, in the exercise of wide discretion, decide it would be fair and just to estreat some or all of the recognisance."
11. The emphasis on the obligation rather than culpability was shown in R v Wells Street Magistrates Court ex p Albanese 74 Cr AppR 180 where it was held that, where the court subsequently changed the conditions of the bail and did not advise the surety, that surety was still liable for a breach by the accused person of the new conditions. This was on the ground that a surety has a duty to keep in touch with the bailed prisoner and keep himself informed of the conditions of bail in order to ensure the prisoner properly surrendered to it.
12. In the present case, Mrs Ramcharitar gave evidence that she agreed to stand surety for her husband in 2008 because she could see he was suffering and, she believed, seriously ill. She also knew that he had been stabbed by another inmate in prison. She stood surety, she said, out of charity. She agreed that, at the time the bail was granted, her responsibility as a surety was explained and she knew that she would be liable to pay $10,000 if he failed to return.
13. At that time she was a schoolteacher. Unfortunately, in June 2010, she lost that job and has been unable to obtain any other employment since. She has three young children dependent on her; the youngest a few months old and the consequence of rape, another is a grandchild and the third a de facto adopted daughter who has, in the past, required medical correction of a defect in her legs and now requires urgent follow up treatment. At present, her only source of income is from a working daughter and some contribution from the father of her granddaughter. She has no savings. She acknowledges that she is a part owner, with her husband, of a house in Trinidad but she knows nothing of its present condition or value.
14. In considering her case, it has to be accepted that, once her husband left the country, she must have realised that she had little or no ability to ensure he returned. In those circumstances, her charity was somewhat reckless but the pressure placed on her as a wife, albeit estranged, cannot be ignored in reality. It became clear a few months later that Mr Ramcharitar had not returned and was unlikely to do so. As Mr Franklin points out, that might have been a moment for Mrs Ramcharitar to explain her position to the court or the police. Had she done so then, the Court may have had grounds for a more sympathetic approach. As 1 state below, it also might have been a moment for the prosecution to call in her recognisance. Her lack of action at that time must be measured, in part, against the fact that she was facing serious charges as a co-accused with her husband. I do not know the reason for the prosecution's delay.
15. In deciding whether or not to estreat a recognisance, the Court is entitled to consider the present means of the surety and her ability to pay now. Her trial has only recently been concluded but the continuing failure of her husband to appear before the Court has been known to the prosecution for well over two years. Had they sought to estreat her recognisance at his first failure to appear in March 2009, the Court may well have felt she was able to pay and ordered total forfeiture.
16. I have been given no explanation why it has taken so long. The fact Mrs Ramcharitar was awaiting trial was no reason to delay action over her husband's bail. The court files show that arrest warrants were being sought and were certainly issued in February 2010 if not before. Had Mrs Ramcharitar been summoned to show cause even at that time, her evidence shows she would still have been employed. Now, more than a year later, she is not.
17. As has been stated, when considering forfeiture of a recognisance, the court must have some regard to the surety's present ability to pay and the consequences for the surety if it orders payment in an amount which would inevitably lead to a term of imprisonment in default; R v Crown Court at Wood Green ex p Howe  3 All ER 866.
18. Mrs Ramcharitar's obligation under the recognisance was entered into late in 2008. The delay in pursuing estreatment runs from mid-March 2009. Whatever her means were then, I consider that Mrs Ramcharitar's present circumstances are such that it would be unjust to order forfeiture of such a substantial sum. I am also satisfied, from her evidence of her means in this hearing and in her recent trial before me in CR 16/08, that she has little or no prospect of being able to pay even a small sum. Failure to do either would result in imprisonment and I do not consider the hardship that would place on her dependents can be justified.
19. I order that her recognisance is discharged and make no order to estreat any part of the sum in which it was entered.