The Prime Minister has spoken and people in some sectors are calling for more stringent measures, implying that the prime minister was a little too easy and did not go far enough to stem the rise in crime. Of course, there are many people who believe that the constitutional right to the presumption of innocence should not be eroded by our politicians.
Presumed to be innocent
Just as a reminder, our constitution at section 20, subsection 5 provides that: "Every person who is charged with a criminal offence shall be presumed to be innocent until he is proven or has pleaded guilty; provided that nothing contained in or done under the authority of any law shall be held to be inconsistent with or in contravention of this subsection, to the extent that the law in question imposes upon any person charged, as aforesaid, the burden of proving particular facts."
Several years ago, the Bail Act was passed into law to address what were then serious problems with the granting of bail and the keeping of persons in police custody for long periods without charge. Section 3 (2) of the Bail Act provides that: "A person who is charged with an offence shall not be held for longer than 24 hours without the question of bail being considered."
Prime Minister's Proposal
In short, the prime minister is proposing the following:
a. Amend law to allow a person to be detained for up to 72 hours without being charged
b. Refuse bail for serious crimes and repeat offenders for the first 60 days with provision for the prosecution to appeal
c. The right to non-invasive DNA, such as a mouth swab from a person charged with an offence
d. To establish a DNA database and among other things, to amend the Evidence Act to allow for witnesses to provide testimony via videotape.
Abuse of police powers
What is interesting about all of this is that most of these provisions will impact on a person who is deemed to be innocent. It invites the abuse of police powers without proper checks and balances. In addition, nothing is said by the prime minister to justify the proposed extended time without charge or extended time without bail.
No obligation placed on the police
It is surprising that the prime minister did not use the opportunity to say what the police MUST do within the 72 hours that the person is held without charge, and if no bail is considered, what the police must be do within that 60-day period to ensure that the case file is ready and that the Resident Magistrate or judge, to whom the matter is brought before for bail, would have a file that is complete. It would seem as if there is no obligation placed on the police or the state to do anything or to have anything done while the innocent person remains in these terrible cell conditions without consideration for bail.
Fight against corruption
The avoidance of the obligation of the police or prosecutor is telling in that the Government would have to commit to improve the training and the facilities of the police, improve the crime lab, employ more people to perform post mortems, have ID-parade rooms in all parishes, have a first-class crime lab that can provide ballistic and DNA reports within two to three weeks, and to increase the fight against corruption in all its forms.
At this time, it seems as if what the prime minister has announced are just half measures, but time will tell.
Keith N. Bishop is an attorney-at-law and partner in the firm of Bishop & Fullerton. He may be contacted by email at knbishop@gmail.com.
Do
you have a problem? Is something bothering
you? Write to