Pre-trial incarceration on the basis of a mere allegation cannot be used as a punishment

Pre-trial incarceration on the basis of a mere allegation cannot be used as a punishment
Kaieteur News letter. Tuesday 6 May 2008

Dear Editor,
It is with dismay that I read the recent statements made by the Honourable Minister of Home Affairs, Mr. Clement Rohee, highlighting the fact that 74 bail petitions had been granted for perceived non-bailable offences. The Honourable Minister expressed his dissatisfaction with the granting of bail for such offences.
The presumption of innocence has always been held sacred in a democratic state.
Article 139 (4) (b) of the Constitution of Guyana states that a person charged with any criminal offence, who has not been tried within a reasonable time, is entitled as of right to bail pending trial: Beneby vs. Commissioner of Police (no. 28 of 1995, unrep, Bahamas) where bail was granted to a murder accused under a provision in the Bahamian Constitution which is akin to Article 139 (4) (b) of our Constitution.
The sentiments expressed by Minister Rohee indicate the fundamental misdirection of the emphasis of Government’s policy in focusing on draconian legislation aimed at pre-trial incarceration. Indeed, this misunderstanding has led to the current dilemma in our criminal justice system. There is no emphasis on ensuring a competent prosecution of criminal matters.
The Chambers of the Director of Public Prosecutions has been faced with at least 13 resignations within the last few years. The current crop of prosecutors in the Assizes, who are among the most recent graduates at the Bar, are pitted against the most seasoned defence advocates.
The single motivating factor for this high turnover of prosecutors within the Chambers of the DPP flows from the conditions of service, specifically the pittance offered as a salary.
The Honourable Minister queried: “Where is the justice for people who suffered at the hands of the perpetrators of this crime?”
Whilst many different answers may be posited, one can definitively say that pre-trial incarceration is not the answer.
While pre-trial incarceration may have appeared attractive in the recent cases involving Benschop and Hinckson, same was not so with the Minister Kellawan Lall, who was being investigated as a result of a discharge of a firearm. Were he charged, as an ordinary member of the public would undoubtedly have been, I am sure that the Honourable Minister would have been less vocal in his desire to implement such legislation.
In the present criminal justice system, criminal matters involving narcotics and firearms are being adjourned by local Magistrates for several months. First offenders are remanded without bail. Article 144 (1) of the Constitution guarantees to an accused person charged the right to a fair trial within a reasonable time. In Barker vs. Wingo 407 US 514, Powell J. of the US Supreme Court, in
construing a similar provision in the US Constitution, declared that these guarantees were directed to prevent excessive pre-trial incarceration.
By design or otherwise, the sad state of affairs which prevails at the Chambers of the DPP is but a reflection of the state of affairs which pertains in the entire judicial system. There is an Acting Chancellor, an Acting Chief Justice, an Acting Chief Magistrate, an Acting Director of Public Prosecutions, an Acting Registrar of Deeds, no Ombudsman, no Solicitor-General, no Public Trustee, and by extension, an Acting Commissioner of Police.
The aim of criminal law is to impose a sanction after a conviction, which acts as a deterrent. Pre-trial incarceration on the basis of a mere allegation cannot be used as a punishment.
I believe that the question which ought properly to be asked by the Honourable Minister is: “Where does the responsibility lie for the failure to effectively prosecute the persons charged for crimes committed in a thorough and competent manner within an efficient justice system, as opposed to a predictable and malleable one?”
Name and Address
Withheld