Many persons have commented on the police actions in the last week or so in response to the wave of killings in east Port of Spain and, latterly, to the “detention” of Oilfields Workers’ Trade Union leader Ancel Roget during an apparent protest outside the Hall of Justice. A recent release by the Law Association purported to remind the police that the country is governed by the rule of law and suspects must be dealt with “in accordance with the law and the police must be above reproach”.
There is no question that the rule of law must prevail especially in a body such as the Police Service that is charged with enforcing the law to maintain order and protect the vulnerable. The statement by the Law Association, however, suggests that in arresting about 100 residents of East Port of Spain last week the police were somehow acting other than in accordance with the rule of law. It may also suggest that the police somehow acted illegally in entering and searching homes in the area.
Now it is undoubtedly a fact that the police did release about 60 of the arrestees without charging them for any offence but does this fact make their initial arrests illegal? The Anti-Gang Act provides at Section 12 that a police officer may arrest without warrant a person whom he has reasonable cause to believe to be a gang member or who may have committed an offence under that Act.
We do not know what the police information was when they arrested the various men. If they did have cause based on intelligence or surveillance or other observation of the area to believe that these persons were gang members, then they acted legally in arresting them. A gang member is a person who belongs to a gang or who voluntarily associates himself with any gang-related activity at whatever stage of the activity. Gang-related activity is criminal activity involving any one of a number of offences including murder, robbery, possession of firearm and drug trafficking/possession, agreed to or directed by a gang member. And a gang is a combination of two or more persons engaging in criminal activity through its members.
Arrest without charge
With this wide definition and given the type of activity that frequently occurs in East Port of Spain, and that did occur in the last two weeks, it is not unreasonable to assume that the police could have had reasonable cause to believe that persons they arrested were gang members. Of course an arrest is not a charge. The latter ought only to occur when there is evidence sufficient to amount to prima facie proof of the offence. The police are however entitled to arrest persons without having sufficient evidence. That is what the law providing for arrest without warrant is about. At this stage there need just be “reasonable cause”.
Having arrested the person the police may seek to question the suspect. He may or may not answer questions. Sometimes he does and may implicate himself. In addition a police officer may seek to obtain further evidence by searching premises and people. There are generic provisions allowing for a search warrant to be issued in pursuance of investigation of a named offence but the Firearms Act in particular at section 30 allows a search warrant to be obtained when “there is a substantial risk to the safety of the public”. Armed with such a warrant an officer may enter and search the premises and persons found therein.
Detention under the Anti-Gang Act
A person arrested as a suspected gang member/leader may be kept for 72 hours without charge but his status must be reviewed after 48 hours. If at that time the senior officer who reviews the detention decides that the detention is not required in “the public’s interest” he must be released. This is a peculiar provision in the Anti-Gang law as this is not a usual reason for continued detention. Furthermore, a police officer may obtain an ex parte order from a magistrate for detention up to six days to allow (among other things) the police to “obtain evidence by questioning” the detained person.
It is evident therefore that once a police officer has reasonable cause to believe someone is a gang member the law allows the officer to arrest and detain him pending investigations. This is without any charge and in fact he may never be charged and the law does not require it.
If there is any quarrel with this it must be with the wide terms of the legislation, passed with the requisite constitutional majority, and not with the police when they are acting within the law. It is evident that Parliament specifically passed law to enable this kind of police intervention in areas which gangs operate.
DCP Richardson has said that Ancel Roget accompanied him to the police station but it is clear that since Mr Roget was physically detained he was arrested. Whether Mr Roget and his group were simply protesting and not marching is irrelevant. Under the Summary Offences Act they were likely holding a “public meeting”: a gathering of persons held for the purpose of the transaction of matters of public interest. In any event in wearing bandanas (as has been reported) partially covering their faces the protestors were caught under the law which states that a person should not appear in public “masked or otherwise disguised”. If there were valid constitutional reasons for this type of wear such as it is part of their religion then this could possibly be a defence.
It appears from where I stand that in the last week or so in dealing with difficult situations the police actions were not unreasonable. There was need to balance the public interest and common good with individual rights and they had to act in favour of the former.
• Dana Seetahal is a former