Senior counsel receives high commendation for legislative reform recommendations

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By Elesha George

[email protected]

Senior Crown Counsel in the Ministry of Legal Affairs with responsibility for law reform and special legal projects, Adlai Smith, has received high praise for a report that proposed a number of amendments to the Police Act, the Larceny Act and the Prison Act.

The report was done at the request of Professor Velma Newton, regional project director at Improved Access to Justice in the Caribbean (IMPACT), a regional justice sector reform project funded by the government of Canada.

She has since acknowledged receipt and welcomed its contents which she described as “excellent”.

In a 65-page document, Smith outlined some necessary reforms to the above-mentioned Acts.

Adlai Smith, Senior Crown Counsel in the Ministry of Legal Affairs with responsibility for law reform and special legal projects

As it relates to the Police Act, he noted that there was a pressing issue relating to several instances of allegations in which police officers have been accused of misconduct ranging from failing to respond to requests for police assistance promptly, to soliciting bribes.

In order to deal with this issue, he recommended the setting up of an independent Police Complaints Authority to investigate complaints relating to the latter. This, he posited, could do much to answer the clamour for accountability by the public, once such authority is adequately resourced and set up properly.

“Such a body would have the potential to check police abuse, recommend punitive steps against errant officers, identify patterns of misconduct and criminality within the force, and suggest policy improvements for an overall change in police behaviour and performance,” he noted.

 In considering the issue of reform in this area, Smith highlighted that a critical issue is to decide whether the Police Complaints Authority would hear all complaints against police officers, or whether the authority should deal only with matters which involve death or serious injury as a result of police misconduct.

The resolution of this issue would depend on what resources, whether human or capital, are available, noting that if the body is to be involved in investigations directly, it will need investigative officers who are not active members of the police force. 

Smith pointed to the example of the Police Complaints AuthorityActof Barbados which could provide a useful starting point for the consideration of reform in this area, as it provides a balance between the availability of resources and the independence of the Police Complaints Authority by setting up a two-tier system: A Complaints Office maintained by the Commissioner of Police and the independent Police Complaints Authority which performs a supervisory and investigative role in relation to complaints of police misconduct. And while it may not avoid entirely the notion of “police investigating police,” at the very least, under the Barbados legislation, where a complainant is dissatisfied with a decision of the Complaints Office concerning his complaint, he may appeal to the independently constituted Police Complaints Authority.

Mindful that the success of any investigation carried out by the Police Complaints Authority is dependent upon evidence to be given by witnesses, Smith lamented the absence from the Barbados Act of the authority of the Commission to summon witnesses.

He advanced that any proposed authority should be able to summon any person to appear before it to give evidence on relevant issues, subject to the constitutional right not to incriminate oneself. Additionally, the Commission should also be able to compel the production of documents relevant to the complaint. These additional powers would allow the Police Complaints Authority to faithfully and effectively discharge its duties under the law.

Another recommendation for the Police Act had to do with the setting up of a procedure for the video recording of statements of vulnerable witnesses to tackle the issue of vulnerable witnesses reporting the circumstances surrounding an alleged crime to the police, but later changing that story in a significant way.

He lamented that while the existing Evidence (Special Provisions) Act 2009 of Antigua and Barbuda does provide for the court to make orders as to special measures, such as pre-recorded video testimony, it does not identify a procedure in which they can be utilised effectively.

Smith, while not being a legislative draftsman, had prepared the Vulnerable Witnesses (Criminal Evidence) Bill 2021 which envisions a procedure whereby, among other things, the videotaping of witness interviews by the police, after consulting the DPP, will now serve as evidence-in-chief at trial.

This would have the effect of preventing, for example, child witnesses in sexual molestation cases or survivors of violent rape from being “re-traumatised” by having to give the same evidence at trial.

Additionally, Smith proposes creating the offence of witness tampering or evidence tampering. Notably, it is further recommended that a prosecutor has a duty (whether police or in the DPP office) to report witness or evidence tampering.

A third recommendation deals with the problem where a police officer is investigating a serious offence, detains a suspect, but there is a risk to investigations if the suspect is released before the expiration of 48 hours.

The constitution of Antigua and Barbuda provides that a person who is detained and not released shall be brought before the court within 48 hours after his detention. Smith proposes an amendment whereby any detention beyond 48 hours requires authorisation from the courts, similar to s.43 of the Police and Criminal Evidence Act 1984 of the UK.

According to Smith, “The authorisation can only be extended for indictable offences and, in exceptional circumstances, the courts can warrant the detention of a suspect without charge for up to four days.

“The court before granting the extension must be satisfied that there are reasonable grounds for believing that the person’s further detention is necessary for obtaining evidence of an indictable offence for which the person has been arrested and that the investigation is being conducted diligently and expeditiously.”

Smith also proposed a number of changes to the Larceny Act to align with the up-to-date United Kingdom Theft and Fraud legislation.

In keeping with the times, it is proposed that the definition of the word ‘stealing’ be broadened to encompass the theft of digital currency.

He further proposes the creation of a number of new offences involving dishonesty that are not covered by existing legislation. One notable example is depriving another of his vehicle temporarily, without having the consent of the owner or other lawful authority as where a person uses someone else’s vehicle to commit a crime without his or her consent or knowledge.

Other examples are fraud by false representation, fraud by failing to disclose information, fraud by abuse of position, possessing articles with intent to use them for fraud, obtaining services dishonestly, and participating in pyramid or Ponzi schemes.

The offence of fraud by false representation is meant to deal with a deficiency in the offence of obtaining property by false pretences under the Larceny Act since the case authorities establish that the false pretence must relate to an existing fact and not in relation to future conduct.

An example is where a person obtains money from another individual to import a vehicle in the future, knowing full well he never intended to do so.

Smith lamented a major deficiency in the Larceny Act whereby if a person were to dishonestly transfer money (or other digital currency) from one account to another online (eg via hacking), or if a bank teller dishonestly transfers money from one customer’s bank account to another bank account, these activities are not ‘chargeable’ under existing legislation.

Smith pointed to legal authority from established case law to show that money in a bank account standing at credit does not belong to the account holder. What the account holder has instead is intangible property in the form of a debt which is the right to demand payment of the relevant sum from the bank. To deal with this problem it is proposed that the offence of retaining a wrongful credit be enacted as per the UK Theft Act.

In relation to prison reform, the senior counsel spoke of the need for a statutory framework based on the Nelson Mandela Rules, which outline the minimum standards for the treatment of prisoners, whether pre-trial or convicted.

He also recommended setting up a committee to monitor the length of time spent in custody by pre-trial detainees.

To remedy the litany of problems that exist within the justice system and at Her Majesty’s Prison, he suggested the implementation of a Pretrial Custody Management Committee to monitor the periods that remanded persons are spending in custody and to submit bi-monthly reports to the court.

Such a committee would identify matters which deserve priority attention of the court based on certain criteria.

“Where after the court receives the report and determines that the particular accused are deserving special priority, then the court shall set down a date for a custody time limit hearing and serve notice thereof on the ODPP and the accused,” the report says.

Having this committee in place would reduce the risk of persons “overspending” time in custody and eliminate the possibility of the state paying out tens of thousands of dollars in compensation for unlawful detention.

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