The conflict of police prosecutors in the magistrate court
I have a serious problem with the chumminess between police prosecutors and Magistrates.
I’m doubtful that one can be a minister of justice/prosecutor and a police officer, charged with investigating crimes at the same time.
There arises a genuine conflict between these roles. Surely, the conflict is glaring when issues of disclosure arise. This creates a grossly abnormal law-and-order situation.
What’s more, having practised at the Magistrate’s Court, I am not confident that police prosecutors and Magistrates - having been together for so long - maintain the so-called “arms-length” relationship. One can easily question the fairness of trials before Magistrates with in-house police prosecutors.
I am surprised that many other attorneys haven’t yet filed suits using the apparent unfairness as a ground for appeal.
I have personally witnessed prosecutors in and out of a Magistrate’s office. I have heard stories of them driving together and staying at the same hotels during Family Island trips, in rooms that are next door to the other. That’s unacceptable!
Frankly, it appears that police prosecutors have a disproportionate influence on the court.
Surely, there are enough police officers who are trained attorneys who can form an arm of the Attorney-General’s Office, tasked with attending to various matters at the Magistrate Court without being assigned to one particular Magistrate. We need to move away from police officers - who are not trained attorneys - prosecuting cases.
Furthermore, the AG’s prosecutors should more readily assist police officers in the laying of charges, given that there have been matters where the wrong charge has been laid or where defendants have simply been maliciously “over charged”! In such instances, we see gross miscarriages of justice.
As an attorney, I need to see a greater sense of impartiality and fairness in our Magistrate’s Courts. Justice must not only be done, but it must also be seen to be done.
By ADRIAN GIBSON
ajbahama@hotmail.com
OF LATE, the troubling trend of arresting and charging or threatening to charge people for criminal libel has been an ongoing exercise on the part of the Royal Bahamas Police Force and has set tongues wagging, with many Bahamians expressing dismay and disdain at what appears to be a steady regression towards becoming a totalitarian, fascist, police state.
Last week, Maria Daxon - a former police constable, attorney and vocal defender for the rights of police officers - stood before Chief Magistrate Andrew Forbes facing two counts of intentional libel concerning alleged statements written about Commissioner of Police Ellison Greenslade and Assistant Commissioner of Police Leon Bethell.
It was alleged that she, between August 26 and August 30, wrote defamatory statements about Commissioner Greenslade and ACP Bethell, which were likely “to injure and expose” the officers to “general hatred, contempt or ridicule.”
Interestingly, Ms Daxon was unable to obtain bail given that recent amendments to the Bail Act made the charge of intentional libel a non-bailable offence in Magistrate’s Court.
As a result of this, she spent the night at the Bahamas Department of Corrections. The following morning, Justice Bernard Turner granted Daxon bail in the sum of $100 and she has been released from Fox Hill.
Indeed, there are many who wonder if the amount of the bail is somewhat of reproof of those who brought the charges and, for that matter, highlights the banality of the charges.
Whilst the matter is now sub judice, given our democracy and fundamental freedoms, there is so much about this that does not sit well with me.
Why are Bahamians suddenly being arrested for songs and commentary on talk shows and Facebook? If anyone is defamed, are there not civil remedies for libel and slander?
What’s more, I’ve taken a look at Ms. Daxon’s charge sheet. Notably, although he is a complainant in his personal and professional capacity, Commissioner of Police Ellison Greenslade is not listed among the witnesses who will testify at the trial. Surely, Daxon’s attorneys must summon him to the stand.
The irony in the Daxon matter is that Commissioner Greenslade is playing multiple roles. On one hand, he is the complainant by virtue of his professional capacity as the Commissioner of Police. On another hand, he is the complainant in his personal capacity.
On yet another hand, Commissioner Greenslade is the prosecutor because - at the hearing - a police prosecutor had charge of the matter and, as Greenslade is the head of the police force, he is the prosecutor by virtue of him having delegated his authority to that prosecutor.
Moreover, Mr Greenslade is also an officer of the Court by virtue of his standing as the Provost Marshall.
And so, what a quandary!
Where is the Office of the Attorney General? What about justice, true justice?
In The Bahamas, if a person is convicted of intentional libel they would be liable to imprisonment for two years. Surely, this law is a legal relic that infringes upon our democratic principles and is subject to abuse.
Intentional libel (also known as criminal libel) is a colonial handout used to silence poor slaves in a bygone era and subsequently used by our colonial masters to suppress dissent.
The fact that such laws remain on our books and are now being readily used by the police, and cited by politicians such as Minister of Foreign Affairs and Immigration Fred Mitchell, are indicative of our slide to becoming a democratic dictatorship.
The police force is supposed to protect all citizens and, unlike what many Bahamians have concluded of late, ought not be at the behest of the political directorate.
We are now seeing Duvalier-era behaviour; we are seeing a local resurgence of the Tonton Macoutes of Haiti and the Mongoose Gang of Grenada.
Is there an attempt afoot to also intimidate attorneys? What about the rule of law? Are artists and rappers and cartoonists and satirists not about to express their views freely?
Even if one wishes to censure on a moral ground, one should use the criminal law to censure people in such a way when the Constitution guarantees freedom of expression/speech.
Of course, our freedom of speech does not mean that one can freely damage or destroy reputations. Indeed, like all freedoms, free speech must be exercised responsibly.
Like justice, the political directorate - to use the words of Lord Atkin in Ambard v Attorney-General for Trinidad and Tobago [1936] AC 322 at 335 - “is not a cloistered virtue: she must be allowed to suffer the scrutiny and respectful… comments of ordinary men”.
Politicians and other public officials - like the Commissioner of Police - are not free from criticism, they too can be chastised. Yes, one can vent their moral objection about the criticism or initiate a civil suit if defamed, but one cannot give the law loose interpretations so that they can vent a personal or moral or political issue.
The police have yet to explain why they arrested the suspected rappers? I am advised that no formal complaint was lodged by any of the persons to whom it is alleged that the lyrics in the songs referred.
So, did the police act on their own accord? Is the criminal law being used to deal with moral outrage?
Years ago, the brother of current National Security Minister Bernard Nottage was charged with criminal libel. The late Glenroy Nottage was charged with having libelled then Inspector Kendal Lightbourne in Freeport, Grand Bahama. The matter was tried in the Supreme Court. Mr Nottage was exonerated.
This is a Pandora’s Box that’s being opened. I am afraid that our democracy may be at stake. What the recent arrests mean is that if any politician or high-ranking public official feel that their moral turpitude has been troubled, they can bring the power of the state to bear on everyday citizens. That cannot be!
As citizens, we must not silently settle for that.
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