Lawyers’ association says early release of convicted tourist was unlawful

An unlawful act was committed in the process of granting the release of convicted U.S. visitor Shannon Martinez a week ago, and the Antigua and Barbuda Bar Council wants it rectified.
The association said the attorney general, Steadroy “Cutie” Benjamin had no power to grant the reprieve that saw the visitor serving only one day of her one-year jail sentence for unlawful possession of ammunition.
In a public statement yesterday, the body noted, “Having considered the applicable law, we note that the law does allow for early prisoner release (remission) in specified circumstances.  However, we are satisfied that the law does not allow a sentence of one year to be commuted to one day in the absence of a decision of an appellate court or a grant of pardon by the Governor General.”
In this instance, the attorney general approved the release of the 41-year-old Austin, Texas mother of two on the recommendation of Superintendent of Prisons, Albert Wade who said had he been informed in his other capacity of Deputy Commissioner of Police, when Martinez was caught with the bullets at the airport, he would not have charged her.
In doing so, he suggested that the sentence handed down by Magistrate Ngaio Emanuel was excessive and argued that this is because the visitor was a first-time offender and anyone could easily forget bullets in their luggage – like he, Wade, admittedly did on two separate occasions.
When Wade spoke on the matter over the weekend, he did so with confidence as he said that he acted using the power vested in him to make such a recommendation.
Yesterday, when the Bar association’s statement was shared with the attorney general who endorsed Wade’s stance, he, Benjamin told OBSERVER media, “I do not accept the Bar’s interpretation of the Prison Rules. I have received other advice but I will nonetheless study the letter and deliver an appropriate reply to the letter.”
He added, “What is important is that the rule of law and proper lawful legal procedure must always be maintained. As Attorney General it is my duty to do so. As I said earlier I shall study the Bar’s letter and will render an appropriate response in due course.”
At the time, Benjamin, who is also the minister responsible for prisons, was in Cabinet meeting with his colleagues.
He did not put a specific timeline on when he would respond and neither did he indicate who, apart from Wade, advised him on the matter.
Meanwhile, the Bar Association said, “It is further our understanding that in doing so the Superintendent relied upon Rule 211 of the Prison Rules, as amended. We have reviewed the Prison Rules and are respectfully of the opinion that Rule 211 (as amended) does not support the action taken in releasing the said prisoner. It is the Bar Council’s view that the law as it currently stands does not vest in any Minister of Government nor in the Superintendent of Prisons the right to commute a sentence to less than 31 days, even where there may be ‘special circumstances’. “
In this regard, it is important to note that Rule 211 was amended in 1999 (by Statutory Instrument # 6 of 1999) so that it is the amended Rule (and not the original rule) which now applies.   Additionally, the Prison Rules were further amended by section 8 of the Prison (Amendment) Act, No 17 of 2017. 
The Association added, “Based on the foregoing, any decisions or recommendations made to release Ms. Martinez after only one day in reliance on Rule 211 would have been a flawed decision and would not comport with the law.  Indeed, we are of the view that the only lawful basis upon which Ms. Martinez could have been released from prison after only one day of her sentence would have been by the grant of a pardon by His Excellency the Governor General pursuant to section 84 of the Antigua and Barbuda Constitution Order.  However, it is our understanding that this was never done.”
Yesterday, OBSERVER media asked Benjamin for a copy of the letter of recommendation that Prison Superintendent Wade submit-
ted to argue for the prisoner’s release.
He said this would be provided. Apart from oral confirmation from Wade, Benjamin and Prime Minister Gaston Browne that Wade provided the recommendation and supporting grounds in a letter, OBSERVER media has never seen this document.
The Bar Association is particularly peeved that the actors in the matter did not apply the appropriate legislation to guide their decision and to maintain the separation of powers between the Executive, the Legislature and the Judiciary, “which underpins our Constitutional democracy and must be vigilantly protected.”
The body is therefore calling “upon the Honourable Attorney-General to reconsider the action taken in the Martinez case, to acknowledge the ultra vires nature of the action taken in that case, and to take such steps as are appropriate to rectify the situation and restore confidence in the inviolability of the doctrine of Separation of Powers.”
The association’s response came after a meeting of members on Tuesday and two days after several lawyers condemned the “breach” of the laws and “violation” of the separation of powers.
The body also put on record, its concern about the recently amended Firearms Act under which Martinez was convicted and sentenced. It said that if laws, such as this, do not allow judicial officers the latitude of discretion or where there is uncertainty as to whether such discretion exists, justice will inevitably suffer.
The Council said it intends to continue to dialogue with the attorney general on the aforementioned and other matters.