Attorneys urge Bar Association to speak up on ‘ill advised’ ‘illegal acts’

Condemnation is a shared sentiment among several attorneys in Antigua and Barbuda over the decision of the Superintendent of Prison to propose the reduction of a U.S. visitor’s sentence, and the Attorney General for approving the woman’s release last Thursday.

Prison Superintendent Albert Wade, who is also a deputy commissioner of police, admitted over the weekend that he proposed the reduction and release of Austin Texas resident Shannon Martinez who was convicted for unlawful possession of 20 bullets found in her suitcase as she and her family were departing Antigua following their brief holiday here.

Wade said he acted because he did not believe she should have been charged in the first place; he said that he also had instances where he forgot bullets in his possession while travelling.

He added that had he been consulted in his capacity as deputy top cop, the matter would not have gone to court because she would not have even been charged.

But the case was taken to court where the 41-year-old pleaded guilty and Magistrate Ngaio Emanuel sentenced her to one year in prison, the minimum term of imprisonment under the recently amended Firearms Act.

However, after only one day in prison, Martinez was released due to Wade’s intervention and support from Attorney General Steadroy “Cutie” Benjamin who is responsible for prisons. Martinez has since been reunited with her family in the U.S.

Attorneys Warren Cassell, Nelleen Murdoch and Ann Henry, QC, all share the view that Wade and the attorney general overstepped their authority.

Cassell spoke with OBSERVER media yesterday, while Murdoch and Henry wrote to the Antigua and Barbuda Bar Association, urging it to make a statement on the matter which they said they find quite disturbing.

Firstly, Cassell pointed out that there are no laws to support what was done and he suggested that there has been a breach of the separation of powers.

The separation of powers is the political doctrine of constitutional law under which the three branches of government – executive, legislative, and judiciary – are kept separate to prevent abuse of power.

 “I am really, really surprised that the deputy commissioner would be making statements to the effect that he took it upon his own to recommend the release of this woman because the last time I checked once you are sentenced by a judicial officer the only ways you would be released include: if your sentence was as a result of defaulting on a fine and the fine was subsequently paid, or if you have been pardoned  by the governor general, or if the court of appeal released you on bail pending an appeal, or you have served your sentence,” he said.

He added that he is not amused to have heard Superintendent Wade saying that he was not consulted as deputy commissioner of police.

“There is nothing in law empowering the superintendent of prison or deputy police commissioner to release somebody, nothing whatsoever and to make a statement that he was not  consulted as deputy commissioner it is crazy,” he opined.

Cassell further pointed out that the Privy Council has handed down many decisions as it relates to the separation of powers and he highlighted one of them.

“This is puzzling to me. Sentencing is for the judiciary. The last time I checked Mr. Wade was not a member of the judiciary. Sentencing is not for any other arm of government. That is even the reason why the Privy Council held that people who were sentenced at the Queen’s Pleasure, they were illegally sentenced because sentencing is for the judiciary and not for the Queen who is part of the executive,” he noted.

The lawyer said even if one were to argue that the prison chief has the authority to grant remissions, this power also comes with guidelines and he posited, “How can he determine good behaviour after only one day in prison?”

The Prison Act, The Prison Rules Chapter 341, Section 15 authorises the chief to grant a release on the following ground, “(1) Rules made under section 26 may make provision whereby, in such circumstances as may be prescribed by the rules, a person serving a sentence of imprisonment for such a term as may be so prescribed may be granted remission of such part of that sentence as may be so prescribed on the ground of his industry and good conduct, and on the discharge of a person from prison in pursuance of any such remission as aforesaid his sentence shall expire.”

Section 211 which also speaks to remission, states that “Every prisoner sentenced to a term of imprisonment whether by one sentence or by consecutive sentences for a period exceeding one month shall become eligible for conditional release when he shall have completed two-thirds of the said term of imprisonment in addition to any number of days forfeited under rules 197 and 198. Provided that nothing in this rule shall authorize the reduction of a period of imprisonment to a period less than thirty-one days.”

Further in Section 212, the law addresses Award of Extra Remission which is done by the governor general.

The law states, “Extra remission may be granted to any prisoner by the Governor-General on the recommendation of the Superintendent, for any special service.”

Finally, section 213 indicates that this extra remission would be awarded after a three-stage qualification, all of which would be based solely on industry and good conduct.

A former senior prison official, who did not wish to be named, pointed out that during his tenure working at the prison, there was never such an occurrence as in this case of Martinez.

That source said the practice has always been “the prison superintendent would consult with the visiting committee and cc the attorney general and the person would be interviewed by the committee if early remission is to be given. Investigations would be done into who visits him and what he is likely to do when released and if he misbehaves then even the general one third remission is not given and he serves his full time. Remission is earned.”

In this instance, OBSERVER media investigated and learned that the Prison’s Visiting Committee was not consulted and neither was Martinez’s reprieve granted by way of a pardon from the governor general.

The current Superintendent of Prisons in Guyana, Gladwin Samuels said as far as he is aware, remission is granted “on industry and conduct” and although he has not worked in Antigua, he said the same principle applies in this regard.

Meanwhile, Attorney Nelleen Murdoch, who made the first call by way of a letter, for the Bar Association to comment, said, “It is with no small degree of concern that I write, and do so only as I do not wish to usurp the functions of the Bar Association Executive, and wish to give the Executive an opportunity to speak first on behalf of the entire Bar on this issue.”

She noted that the development gives “rise to a reasonable fear of the erosion of constitutional rights and norms.”

Murdoch opined that several grave issues arise to include, “It is not the purview of the Superintendent of the Prison or the Minister of Legal Affairs to commute or quash sentences. That is the singular purview of the courts, no matter what the circumstances. That this action was taken so casually is a serious slap in the face of the court and a very serious erosion of the court’s jurisdiction.”

She also weighed in on what the Prime Minister, Gaston Browne, had to say about the matter over the weekend. He said he supported the decision to release Martinez, felt that if Antigua had not acted the country would have had a “diplomatic situation” on its hands, and that the matter was a simple one of a U.S. woman, who in her own country is allowed to carry arms and ammunition, forgot to remove the box of bullets from her suitcase before travelling to Antigua.

Airport Security found the ammunition when she was departing last Tuesday, but it was missed by the authorities when she left the U.S. and arrived in Antigua on June 1, according to the woman’s statement.

Murdoch noted, “The statements made by the Prime Minister suggest to the Antiguan public that members of the administration (executive) who are public officers, may act in a manner not sanctioned by law in releasing a person who had been sentenced by the court.”

She emphasised that the prime minister’s statements also convey “that this unlawful action by public officials that violates constitutional principal is condoned by the Executive.”

The lawyer said she does not believe the PM intended to suggest that he condones “illegal acts and erosion of our constitutional norms”, therefore he must have been “ill advised” and no one had pointed out to him that there has been a violation of the separation of powers.

And she said that it reflects badly on the government when the “constitutional norms or rights”, which are the mainstay of a nation’s democratic society, are eroded with “seeming impunity.”

Another key point which she raised is that this situation has the potential to “seriously and surely militate” against getting the people of Antigua and Barbuda to accept that the country can govern its legal affairs appropriately without improper interference.

“Sadly, this issue will negatively impact upon the call for the people of this country to accept that the CCJ [Caribbean Court of Justice] is something that is good useful and necessary for Antigua,” she noted.  

Murdoch said the “irony” of the matter is that it arose as a result of a failure of the legislators to take the recommendation of commentators on the 2017 [Firearms Amendment] Bill which she said removed the discretion magistrates had in determining appropriate sentencing in gun crimes.

“The position that was taken at the time was that a tough stance on gun offences was the answer, and a mandatory one year sentence was imposed by the law. The difficulties posed by the mandatory one year were surely exposed in this situation where the visitor was given the mandatory sentence by the magistrate for forgetting to remove bullets from her bag when she travelled to Antigua and when in her home country this would not have been a crime,” she highlighted.

This is not the first time the legislation has been called into question since its passage.

While expressing empathy for the now convicted tourist, Murdoch said the way to right the wrong should not include violating constitutional principles.

“One cannot correct the wrong that may have been done to an individual by shredding the fabric of the very instrument that has been crafted for the protection of us all. There is and remains a considerably larger picture here than the hardship to the visitor in this situation.  No one should be permitted to erode the constitutional norms and principles as has been done in this case,” she affirmed.

In her view, the authorities executed an “attack on the very fabric of democracy” and the Bar Association, as gatekeepers of society “must act and act swiftly in relation to this matter” and “promptly and immediately issue a public statement regarding this matter and the Bar’s concern about the same.”

In closing she posited, “If the guardians act in the manner described in the reports, Quis custodiet ipsos custodes? Who will guard the guards?”

Queen’s Counsel Ann Henry, a past president of the Bar Association, concurred with Murdoch in a letter in response which was also sent to the Bar Association.

She wrote, “Thank you for this most timely and appropriate intervention. I have nothing useful to add, but to fulsomely endorse the sentiments of concern voiced by you. I trust that the Bar Association will speak loudly on this issue.”

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