Law Association issues warning on crime laws
Wednesday, March 13 2013
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Side by side we stand: President George Maxwell Richards, second from right, and President elect Anthony Carmona, third from right, stand side by side...
THE LAW ASSOCIATION has expressed concerns about the proposed legal initiatives to address the unacceptable crime rate.
In a statement yesterday, the association’s council advocated the implementation of a holistic crime initiative, which they say must include long term plans to address social issues affecting the country while also investing more in the rehabilitation efforts of the prison system in order to reduce re- offending.
The association acknowledged that the current crime situation was unacceptable and said it supported all legitimate, reasonable or measured initiatives to reduce crime to an acceptable or management level.
But it also noted that while it was obvious that traditional methods of law enforcement had failed, any proposed measure must ensure that the constitutional rights of citizens were not eroded. The initiatives the association’s members are concerned about are contained in The Bail Amendment Bill 2013, The Criminal Procedure (Amendment) Bill 2013 and The Defence (Amendment) Bill 2013.
Yesterday’s statement was signed by the association’s president Seenath Jairam, SC.
Among the proposed measures which are troubling to the lawyers is the removal of the constitutional right to bail for those charged with no less than 30 offences; the removal of jury trials for 26 offences and the precept of soldiers having the power of arrest.
In its statement, the association said the removal of the constitutional right to bail also affected an accused person’s rights to presumption of innocence and not to be deprived of liberty except by due process.“The courts have held that the grant or refusal of bail in a modern democratic state must be exercised by an independent Judiciary,” the association pointed out.
It was also noted that the legislative removal of such decisions from the jurisdiction of the Judiciary offended the separation of powers would have the “tragic consequence” of punishing 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,” the association said.
“We need to tread carefully least we become a ‘Police State. Measures which make it easier to punish the guilty tend to increase the risk of punishing the innocent,” it added.
“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,” the association added.
The removal of jury trials, for over 26 offences, has also met with some objections from the association, which noted that the right to be tried by one’s peers was a hallowed principle of the administration of criminal justice which has developed over centuries of practice.
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,” the association said, pointing out that in the United Kingdom a judge decides a verdict only where there were evidence of jury tampering while a special jury is selected for complex fraud matters.
The association said it would only support the removal of jury trials in limited circumstances, unless it can be shown that jury trials result in unjust verdicts.
“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,” the statement said.
A proposal for the boosting of resources at the office of the Director of Public Prosecutions and Government’s support are being suggested as the association pointed out that delays were 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. At present the detection rate is way below any standard and the police must take full responsibility for that deficiency,” the Law Association’s council said.
As it also criticised the proposed legislative amendment to precept soldiers, the association said to do so contradicts the structural safeguards of insulating the public from political control and the police powers of the State.
“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, the association said, provided a specific modality for the exceptional use of military powers during peacetime in the form of a declaration of a state of emergency.
The council was heartened by comments made by the Government that only selected members of the Defence Force will be chosen to assist the police in their duties, adding that also welcomed was the expansion of the remit of the Police Complaints Authority to hear complaints against soldiers should they arise.
Soldiers, the association added, should be trained not only in arrest and search procedures but also in giving evidence in the court.
“The Law Association notes that this move is not unprecedented as during the state of emergency Defence Force members did have such powers,” it said, adding that “the proposed bill does not contain such protections as have been claimed.”
The association pointed out all citizens were duty bound to assist in the fight against crime and as such had, at common law, the powers of arrest with the same immunities and protections as the Police Service.
Also among the association’s concerns was the consideration to resume hangings.
The Council noted that, “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.”
It said it reserved its comments until the Government disclosed its reasons for wanting to resume the death penalty, and stressed that it could not support any measure which presented itself as a ‘gut reaction to an emotional population which seeks retribution and revenge on criminals.”
The association also said the measure to increase punishment and provide for mandatory sentences for certain offences can only be put in place after thorough studies were conducted on the effectiveness of sentences currently available.
A sentencing commission has been suggested to examine all previous sentences and sentencing procedures and to make recommendations for improvements.
“As the jurisprudence of criminal law has developed over the last twenty years, the literature shows that even severe and mandatory sentences are not deterring potential offenders. Certainly in our country’s current crime climate - where the detection rate for crimes has been said to be around 17 to 19 percent - criminals will not be deterred if they possess no fear of being charged, far less convicted and punished. The jurisprudence of criminal law also demonstrates that citizens obey laws that they deem binding on their conscience and laws that 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-brining. lack of upward social mobility and a general rejection of what is morally right and acceptance of what is morall wrong,” the Law Association said in its statement.
It also noted that of the 98 percent of the prison population which is eventually released back into society, 74 percent are sent back to jail within three years.
“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 abovementioned measures,” the association’s statement said.
The Lower House is expected to debate the Defence Force (Amendment) Bill 2013, which seeks to members of the Defence Force powers of arrest and other rights enjoyed by the police service during joint patrols.