The Law Association of Trinidad and Tobago (LATT) yesterday gave its views on several key pieces of legislation currently being proposed by the Government in an attempt to arrest the country's escalating crime rate.
LATT president, Senior Counsel Seenath Jairam, yesterday delivered a five-page document addressing several issues currently engaging the public's attention including the Defence (Amendment) Bill, which seeks to give soldiers the powers of arrest.
The Law Association also weighed in on the ongoing debate about the resumption of hangings.
The following is the full text of the Law Association's
The Law Association of Trinidad and Tobago (LATT) notes with concern the public statements made on behalf of the Government as to legal and other initiatives soon to be implemented to address the unacceptable crime rate. These initiatives are contained in The Bail (Amendment) Bill 2013, The Criminal Procedure (Amendment) Bill 2013 and The Defence (Amendment) Bill 2013.
The initiatives which are in the public domain are:
(1) the removal of the constitutional right to bail for those charged with no less than 30 offences;
(2) the removal of jury trials for 26 offences; and
(3) the precept of soldiers having the power of arrest.
It would appear that there are also plans to resume capital punishment and to legislate for more severe mandatory sentences for certain offences.
(1) The Bail (Amendment) Bill 2013: The removal of the constitutional right to bail also affects an accused person's other constitutional rights such as the right to presumption of innocence and the right not to be deprived of liberty except by due process. The legislative removal of the right to bail from the jurisdiction of the judiciary offends the separation of powers and is inconsistent with our Republican status as a democracy since the Courts have ruled that the grant or refusal of bail in a modern democratic state must be exercised by an independent judiciary. It has the tragic consequence of punishing those innocent citizens who are wrongfully charged.
Further, these provisions will deny freedom to those who, while they may be guilty, are however presumed in law to be innocent.
(2) While it is conceded that this measure will certainly keep some guilty offenders off the streets, it has the unintended and tragic consequence of punishing those innocent citizens who are wrongfully charged.
We need to tread carefully lest we become a "Police State". Measures which make it easier to punish the guilty tend to increase the risk of punishing the innocent. The Bail (Amendment) Bill 2013 denies bail for those charged with no less than 30 offences including from the most serious offence of manslaughter to the less serious offence of receiving stolen goods. Previous models of a temporary removal of the right to bail were introduced in the past for the offence of kidnapping for ransom. This measure should only be extended if, and only if, the empirical evidence reveals that it was successful in reducing the prevalence of that said offence.
(3) The current crime situation is unacceptable and we support all legitimate, reasonable or measured initiatives to reduce crime to an acceptable or manageable level. It is obvious that the traditional methods of law enforcement have failed but at the same time we need to ensure that our constitutional rights are not eroded by the proposed measures.
(4) The Criminal Procedure (Amendment) Bill 2013—This bill seeks to remove jury trials for over 26 offences which will cover most, if not all, jury trials. The bill fails in its explanatory note to advance the justification for such removal.
(5) Further, the LATT notes the ability of a citizen to decide another citizen's fate in serious crimes is considered to be part and parcel of one's democratic right, similar to our electoral system.
We are aware that in the United Kingdom where there is evidence of jury tampering, the case will be decided by a judge alone and the trial will take place without a jury. Further in some jurisdictions, a special jury comprising persons of a certain educational background is selected for complex fraud matters based on the difficulty of understanding more complex evidence and issues.
We note that in many lengthy trials the jury often cannot agree on a verdict, thereby resulting in a colossal waste of resources, frustration to all involved in the process and further burdening the criminal justice system.
Moreover, juries in our system are not required to give reasons for their verdicts. We are of the view that the DPP's office needs more resources and the full support of the Government in order to effectively carry out its constitutional duties. Delays are not the sole product of the jury system. Delays are caused by several factors and can be considerably reduced if the judiciary and the office of the DPP are adequately or properly funded. Crime waves are not as a result of the jury system. Most, if not all, persons who commit crimes do not consider that they will be caught. It is for the police properly trained to investigate and lay charges.
(6) At present, the detection rate is way below any standard and the police must take full responsibility for that deficiency.
(7) The Defence (Amendment) Bill 2013—The LATT notes that there is currently a bill to confer on any member of the Defence Force who is engaged in assisting the police in the maintenance of law and order with the same powers, authorities, privileges and immunities as are given by law to the police. We are encouraged by the public comments and the Government's announcement that only selected Defence Force members will be chosen to assist. The Government's announcement that the remit of the Police Complaints Authority will be extended to hear complaints against Defence Force members is only one small step in the right direction, but add the rider that these chosen members must be trained in arrest and search procedures and giving evidence in court. We note that this move is not unprecedented as during the state of emergency Defence Force members did have such powers. We prefer to see that the precepted powers ought only to be used in assisting the police in their duties when a serious crime is being committed in the presence of such precepted soldiers.
(8) The structure of our Constitution gives effect to a separation of powers and the insulation of certain elements of the Public Service from political control. The rationale for these constitutional arrangements was the self-evident danger of permitting executive interference with the Public Service.
These concerns are most heightened in relation to the exercise of the police powers of the State. Where there is a separation of powers it is clear that to share the jurisdiction of any protected service under the Constitution such as the Police Service, with an unprotected service such as the Defence Force is to contradict and contravene the structural safeguards established under the Constitution.
The Constitution provides a specific modality for the exceptional use of military powers during peacetime in the form of a declaration that a state of public emergency exists. The powers to proclaim such a declaration are rightly exceptional and require a constitutionally defined and suitably high threshold for their lawful exercise. To permit the general exercise of state military power during peace time is contrary to the specific constitutional safeguards which restrict such use and is thus an unconstitutional overreach by the executive.
(9) The LATT notes however that the proposed bill does not contain such protections as have been claimed. Further the granting of police powers to soldiers who are trained to defend the state from outside attacks and insurrection is dangerous as opposed to protect, detect and serve.
Finally the LATT points out that at common law all citizens are duty bound to assist in the fight against crime and as such have at common law the powers of arrest with the same immunities and protections as the Police Service.
(10) Resumption of hangings —It has become common that during periods of heightened crime the issue of resumption of capital punishment is raised. While the debate continues as to whether hangings should resume, abolitionists strongly oppose such measures as the empirical evidence shows that capital punishment does not result in deterrence of potential offenders with a resultant decrease in crime.
However, the LATT cannot support any measure which presents itself as a gut reaction to an emotional population which seeks retribution and revenge on criminals. We reserve further comments until the Government discloses its reasons for resuming of the death penalty. The police need to improve drastically its detection, arrest and conviction rate(s)—that is the real deterrent to our criminals.
(11) More severe mandatory sentences—The measure to increase punishments and provide for mandatory sentences for certain offences has also been put into the public domain. It is the LATT's position that such measures can only be put in place after thorough studies are conducted on the effectiveness of sentences currently available. The LATT suggests that a Sentencing Commission be set up to examine all previous sentences and sentencing procedures and to make recommendations for improvements, if and where, necessary.
(12) Further, as the jurisprudence of criminal law has developed over the last 20 years, the literature shows that even severe and mandatory sentences are not deterring potential offenders. Certainly in our country's current crime climate—crimes have been said to be around 17 per cent—19 per cent—criminals will not be deterred if they possess no fear of being charged, far less convicted and punished.
(13) The jurisprudence of criminal law also demonstrates that citizens obey laws which they deem binding on their conscience and laws which they deem necessary for good governance and society as a whole. The failure of criminals to obey the most basic and natural laws, as evidenced by our high murder rate, is certainly the result of societal failings such as lack of education, breakdown of family, absence of religious up-bringing, lack of upward social mobility, and a general rejection of what is morally right, and acceptance of what is morally wrong.
(14) Further, where 98 per cent of the prison population is eventually released into society and the statistics show that 74 per cent to them are sent back to jail within three years, crime initiatives must include social issues, prison reform and a greater focus on rehabilitation of prisoners in order to reduce recidivism.
We raise these issues in the hope that the Government will give due consideration to them and engage in meaningful consultation prior to implementing any of the above-mentioned measures.