'Advantage' Criminals

EDITOR, The Tribune.

Unlike tennis, where players struggle to get “advantage”, our legal system gives the criminal the advantage from the time of his arrest. He has to be taken to a police Station where he is to be checked in before being incarcerated and each departure from there must be recorded.

Records must be kept of his meals. The interrogation process calls for the officer to record all questions and answers, of which his attorney will get a copy. When it is decided that the criminal is likely to be charged he has to be told the following; “You are not obliged to say anything unless you wish to do so. Whatever you say will be taken down in writing and may be used in evidence.” If he decides to say something, whether it is a confession or not the officer must write it down in the criminal’s own words or if the criminal so desires he can write what he has to say himself. At the end of this process the criminal must be allowed to read over the statement before signing it. Copy to be sent to his attorney.

The statements made by the witnesses and the reports written by the Police Officers must be sent to the attorney. Copies of photographs and other exhibits are also sent to the attorney. The attorney may visit the place where the criminal is being held and insist on seeing him.

The attorney will quote, that portion of our constitution which allows for him to see his clients. The attorney will never recognise the fact that the constitution provides for the officer to prevent the attorney from seeing the client if the visit will seriously affect the results of the investigation. e.g. the criminal may be about to say where (a) the guns, drugs or stolen property can be located or (b) where a kidnapped child is hidden. The criminal is eventually charged with the crime. There is the request for bail and in the event of any confession the accusation of police brutality. It must be realised, that the attorney must challenge the confession either by suggesting that promises were made to the criminal, which convinced him to make the statement, or the very frequent allegation of police brutality. Such allegations by attorneys are made at the Magistrate’s Court during the formal charging of the criminal. It is obviously a part of the defence to get the statement omitted from the evidence: The statement will be attacked at the hearing.

Before the trial all of the Police evidence must be given to the attorney, eg witnesses statements, confessions, copies of photographs and other like exhibits. The attorney knows what the prosecution is relying upon. The attorney does not have to tell anyone beforehand what his defence is. In the courts attorneys get long adjournments, which is an “advantage” eg witnesses tend to disappear, witnesses are corrupted or intimidated by relatives and friends of criminals. In the Supreme Court Jury Selection is another “advantage”. The criminal’s attorney has ten challenges. If there are others accused with him each has ten challenges. The prosecution has ten challenges.

Decades ago CID officers sat with prosecutors and assisted them in the selection of jurors. The practice has been discontinued. We know of trials, that were pending for six years. (”advantage” criminal). The efforts of the Hon Attorney General to provide ten courts and reduce the backlog will be major steps in the war on crime. I pray for the success of this initiative, but I have doubts regarding the availability of jurors and the commitment of defence attorneys with regards to timely trials. It would be most appropriate at this time to consider the following options:

(a) The recommendation made by former Chief Justice Burton Hall to have some trials with judges instead of jurors.

(b) Legislation to provide for certain types of crimes to be heard by judges.

I recall decades ago when the legislature changed the laws and made many crimes that were tried in the Supreme Court to be heard by Magistrates. In the early fifties any theft in which the item was valued over five pounds had to be tried in the Supreme Court. The theft of bicycles were tried in the Supreme Court. It is my opinion that all crimes, with the exception of murder, rape and treason be tried by judges.

December, 2014.


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