You find yourself arrested- Now What are your Rights?

Worst case scenario you find yourself arrested, there are a few key things that you keep in mind. Regardless of your social station they are certain rights that you have as your liberty or freedom is taken from you. Ghetto youth or not- The rights remain the same across the board.

In order to effect an arrest on anyone under the Constitution of Jamaica the police should have  a warrant, which would indicate that the person is wanted for a crime, or the police may have reasonable and probable cause that the person has committed an offence and even without the warrant can effect an arrest.

The Charter of Fundamental Rights and Freedoms(Constitutional Amendment) Act, 2010, which significantly changed Chapter III of the Constitution, confers rights that many persons do not know about so when the rights are violated it is accepted through ignorance and many stay in jail for longer periods than absolutely necessary.

Any person who is arrested or detained shall have the right­:

(a) "to communicate with and be visited by his spouse, partner or family member, religious counsellor and a medical practitioner of his choice;"

The word “and” is instructive, as relatives don’t know that they have a right to visit their incarcerated loved one in order to ascertain their status. Information may be difficult to get from police stations, but this should not be. This is a right- detainees should not be begging for calls in order to communicate with loved ones.

(b) "at the time of his arrest or detention or as soon as is reasonably practicable, to be informed, in a language which he understands, of the reasons for his arrest or detention;"

The reason for being locked up, shouldn’t be a guessing game for the detainee, some as repeatedly what the reason is and can’t receive an answer. Once detained police may have reasonable suspicion in order to hold a person behind bars, however some persons are kept behind jail for weeks- months and the reason for detention changes like the wind before they are either charged or released.

(c) "where he is charged with an offence, to be informed forthwith, in a language which he understands, of the nature of the charge;"

English is our first language however patois is the main tongue for many. In describing the nature of the charge, officers should ensure the person understands, breaking it down where necessary. It is the person’s right. Literacy is so tricky in Jamaica. So many persons are functionally illiterate. They can spell their name and address or they really are not familiar with many “normal” or "everyday" words and have difficulty grasping the English Language.

(d) "to communicate with and retain an Attorney-at-law."

If you can’t afford a lawyer, Duty Counsel or a Legal Aid Lawyer should be appointed to you.  Where a Question and Answer session is conducted by the police or the giving a Caution Statement is to be done( where detained person gives a comprehensive statement of incident to police) INSIST THAT A LAWYER IS PRESENT. Police Officers will use 2 JP’s as permitted, however with no legal advice, this is a road that many regret walking when they eventually retain counsel. What a Lawyer may object to, may slide through in an interview without one.

The Constitution provides that a person should not be arrested without charge for  more than 24 hours, but the standard practice is 72 hours. ( It is said with so much authority that there must be precedent that I am not aware of which must trump the constitution-smh)

The waters become even more muddy where police say a detained person is scheduled to go an ID parade- weeks to months without charge is possible, as if an application for Habeus Corpus (order to release the detained person who has not been charged within a reasonable time) is made to the RM Court in lieu of the ID parade to get release- The attorney may be told that the parade should be conducted first. Attorneys instead of going to the RM Court may go to the Supreme Court in order to get the person released if not charged. So persons without Attorneys sometimes fall through the cracks and are incarcerated without charge way longer than they should be.

Chapter III of the Constitution states that someone detained and charged should be taken before the court without delay. It is also stipulated that the suspect shall be released if not tried within a reasonable time.

Please note that the Charter of Rights also state that you are entitled to

·        the right to equality before the law;

·        the right to equitable and humane treatment by any public authority in the exercise of any function;  (No box down from police is acceptable- The Charter speaks further to the right to protection from torture, or inhuman or degrading punishment )

·        the right to freedom from discrimination on the ground

o    being male or female;

o   race

o   place of origin- Tivoli vs. Beverley Hills. There should be no difference in treatment.

o   social class,

o   colour,

o    religion

o   political opinions- JLP or PNP it shouldn’t matter or even NDM

I would love to include sexual orientation as those charged with offences such as buggery, sometimes face  a warm time- as enough care may not be taken to ensure that the charge is not made accessible to other detainees.

Earlier I indicated police must have reasonable grounds to take a person into custody. Under the Charter please note:

No person shall be deprived of his liberty except on reasonable grounds and in accordance with fair procedures established by law in the following circumstances-­

(a) in consequence of his unfitness to plead to a criminal charge;

(b) in execution of the sentence or order of a court whether in Jamaica or elsewhere, in respect of a criminal offence of which he has been convicted;

(c) in execution of an order of the Supreme Court or of the Court of Appeal or such other court as may be prescribed by Parliament on the grounds of his contempt of any such court or of another court or tribunal; The Charter of Fundamental Rights and [No.] 9 freedoms (Constitutional Amendment) Act. 20 II

(d) in execution of the order of a court made in order to secure the fulfillment of any obligation imposed on him by law;

(e) for the purpose of bringing him before a court in execution of the order of a court;

 (f) the arrest or detention of a person­

(i) for the purpose of bringing him before the competent legal authority on reasonable suspicion of his having committed an offence; or

(ii) where it is reasonably necessary to prevent his committing an offence;

(g) in the case of a person who has not attained the age of eighteen years, for the purpose of his care and protection;

 (h) the detention of a person­

(i) for the prevention of the spreading of an infectious or contagious disease constituting a serious threat to public health; or

 (ii) suffering from mental disorder or addicted to drugs or alcohol where necessary for his care or treatment or for the prevention of harm to himself or others; or

(i) the arrest or detention of a person­

(i) who is not a citizen of Jamaica, to prevent his unauthorized entry into Jamaica; or

(ii) against whom action is being taken with a view to deportation or extradition or other lawful removal

KNOW YOUR RIGHTS!!

Understanding Self Defence from a Legal Standpoint

Self defence is a complete defence of justification in cases involving all levels of assault. At common law the defence off self-defence operates in three spheres. It allows a person to use reasonable force to:

(a) Defend himself from an attack
(b) Prevent an attack on another person,
(c) Defend his property

Right to defend yourself

Section 23 of The Firearms Act clearly permits the holder of a licensed firearm to discharge said firearm within or about a public place, not only in the lawful protection of his own person or property, but also in the lawful protection of the person or property of others.

It is instructive to note, however, that the protection of life or property has to be lawful. The case law appreciates that the licensed firearm holder who discharges his firearm to protect life or property may not have had time to make entirely rational decisions, given all the circumstances of the particular case; however, even allowing for mistakes made in a crisis, the amount of force must be proportionate and reasonable.

The general principle is that the law allows only reasonable force to be used in the circumstances and, what is reasonable is to be judged in the light of the circumstances as the accused believed them to be (whether reasonable or not).

It is important to note:

                      a) A person who is being attacked should not be expected to 
                   "weigh to a nicety the exact measure of his necessary 
                    defensive action".

b) If the jury thought that in the heat of the moment the defendant did what he honestly and instinctively thought was necessary then that would be strong evidence that only reasonable defensive action had been taken.

c)A jury will be told that the defence of self-defence will only fail if the prosecution show beyond reasonable doubt that what the accused did was not by way of self-defence.

Excessive force

The issue of a mistake as to the amount of force necessary was considered by the courts  and the law is:"They ought not to convict him unless they are satisfied that the degree of force used was plainly more than was called for by the circumstances as he believed them to be and, provided he believed the circumstances called for the degree of force used, he was not to be convicted even if his belief was unreasonable."

No duty to retreat

There is no rule of law that a person attacked is bound to run away if he can. A demonstration by the defendant that at the time he did not want to fight is no doubt, the best evidence that he was acting reasonably and in good faith in self-defence; but it is no more than that. A person may in some circumstances act without temporising, disengaging or withdrawing; and he should have a good defence

It is therefore, a matter for the jury to decide as to whether the defendant acted reasonably in standing his ground to defend himself, or whether the reasonable man would have taken the opportunity to run away.

It is not absolutely necessary that the defendant be attacked first. As Lord Griffith said in Beckford v R [1988] AC 130: "A man about to be attacked does not have to wait for his assailant to strike the first blow or fire the first shot; circumstances may justify a pre-emptive strike."

Mistake as to Self- Defence

It is possible that a defendant might mistakenly believe himself to be threatened or might mistakenly believe that an offence is being committed by another person, it would appear that such a defendant would be entitled to be judged on the facts as he honestly believed them to be, and hence would be permitted to use a degree of force that was reasonable in the context of what he perceived to be happening.

In a case of self-defence, where self-defence or the prevention of crime is concerned, if the jury came to the conclusion that the defendant believed, or may have believed, that he was being attacked or that a crime was being committed, and that force was necessary to protect himself or to prevent the crime, then the prosecution have not proved their case.

If however the defendant's alleged belief was mistaken and if the mistake was an unreasonable one, that may be a powerful reason for coming to the conclusion that the belief was not honestly held and should be rejected.

Even if the jury came to the conclusion that the mistake was an unreasonable one, if the defendant may genuinely have been labouring under it, he is entitled to rely upon it.

The reality of self -defence in a murder charge

1) It is very difficult for juries to accept this defence in cases where the person who is harmed/killed does not have a weapon or is not armed.

2) The option of manslaughter is often left to the jury which states that the accused did not have the intent to take a life or cause greivous bodily harm (no malice aforethought) but the killing was unlawful.

2) Licensed firearm holders are not automatically protected from murder or manslaughter charges as using a weapon may appear as using excessive force and will be interpreted as being unlawful by the jury.

3) Licensed firearm holders have a great responsibility, and should think twice about discharging their weapon, if under threat, even though the law makes provision for their subjective mind or what they perceive.

June 3, 2016

FALSE RAPE CLAIMS: The stories that are never told...

by: Kymberli Whittaker

“Rape”  is such a dirty word. It connotes feelings of anger, rage and condemnation once uttered or even implied, and with good reason. Rape is an act so abhorrent that it shifts power from the victim to the person committing the act. Rape is about power, men know this and women know this as well.

We warn our females to be careful and try to avoid situations when possible to avoid assaults (as far as it is possible- women are not responsible for being raped EVER), but what about our men.  The sad reality is that men may find themselves at the centre of a false rape accusation and these men are blind-sided as their world turns upside down.

 The truth is some women may choose to lie about rape for different reasons- Men read, learn and protect yourself. Here are a few reasons:

1) To hide consensual sex from a family member or spouse

Shame is a hell of a thing. Some persons instead of admitting when they have fallen prey to their emotional desires or sexual feelings, will lie, cry, and plead the blood of Jesus against their consensual  partner in a tryst.

How could a woman fall for her gardener? How could the person who attends church religiously with their family, have sex with a man of cloth? How could a student willingly admit that she slept with their teacher for good grades to her parents who have sent her to school?

Once discovered by a third party, a woman may blurt out rape, or be pressured to say that they have been violated to alleviate the shame felt from the sexual association. Men if you have more to lose than the woman when having sex- Walk away!

2) “Hell hath no fury like a woman scorned.”

When breaking off a relationship, tact is not a bad thing. Vindictiveness spawned by a bad break up is a common factor that should actually leave men quaking in their shoes. Men, in situations where you are plainly wrong, such as cheating, abuse, etc- You leave yourselves vulnerable and open to attack.

Rape is a crime that often rests on credibility- it is hard to disprove even with physical proof of sex whether a woman has been raped, because there is a mental element of consent, or lack thereof that is essential for the act to be considered a crime . A “Tough back” man is no match for a crying woman on the stand in court. Men embattled in a divorce, beware! Are you fighting for custody of your kids when you have moved on and have a new girlfriend or baby momma? Beware!

“Payback is really a *****”- And the false rape claim is seen as justified punishment for a wandering spouse.

3) The woman is unstable or is a chronic liar

Sex is not going anywhere. Men before jumping into bed, find out more about the person you would like to bed.  A first name and marital status is not good enough. Some ppl are crazy and some others are simply waiting for the opportunity to bed someone of influence so that they can use the art of blackmail to get what they want. Dating before sealing the deal is not a bad move- you may save yourself the trouble of being labeled as a sexual predator in the future.

Women can use a rape claim to their advantage. Remember that once a report is made, you are arrested by CISOCA with no immediate prospects of bail. The more gruesome the details given by the woman, the lesser your chances of receiving bail within a couple months.

Jamaica doesn’t test for DNA to prove that sex with an accused person did not occur- Do not be fooled by these crime shows on TV- doesn’t apply in our context, so it is harder to eliminate a man as a suspect once the accusation is made

Even if you beat the charge, being accused of rape attaches a stigma or stench to your name that is near impossible to get rid of.  Men take heed and beware!

kymberli.whittaker@gmail.com

Self Interest vs Nationalism- The Real Issue behind the Opposition to the DNA Act in Jamaica

While still a teenager years ago, I remember the furor about the protection of a person’s rights and the surprising opposition against the proposed DNA Evidence Act. Being exposed to television shows such as Law and Order where it appeared to be standard practice for DNA evidence to be used to aid in determining an accused’s person’s guilt, I was a bit confused and taken aback at the debate which ensued. Cognizant of Jamaica’s high crime rate and the perceived inability of the State in controlling and reducing crime, the most natural question I asked was “Why is DNA evidence so bad?”

Mulling over the issue back then, I queried whether the Law Makers had something to gain, as so many esteemed politicians were trained Defense lawyers. I pushed that thought out of my mind as I could not fathom that self interst could trump Nationalism. I questioned and received no answers.

The argument that DNA evidence trumps privacy and should not be utilized is flawed. If that is the case for opposition then fingerprint evidence is equally as invasive and should not be collected. The presumption is that an accused person is “innocent until proven guilty”, however that is not an absolute presumption as seen with how the court treats with bail applications, rejecting bail for some offences punishable by imprisonment based on how high-risk the person appears to be. Whether that person will come back to court at the next hearing, interfere with witnesses, or very importantly what the offence is that the person is charged with- Rape and Murder, as one can imagine is not taken lightly.

Our laws were fashioned off the UK and many of their cases are used as leading precedents by lawyers that argue their case before the courts to try and persuade guilt. Their laws have been amended to reflect developments in technology and crime fighting strategies while ours have remained static, contributing to the stagnation of our court system as more crimes are commited in Jamaica, through no fear of repercussions as our criminals simply do not fear ore respect the Justice system.

An accused person is not forced by law to assist the prosecution in furtherance of his right to not incriminate himself, however DNA is a test which assists in the process of non-incrimination of a person who is not guilty. If you do the crime, it should follow logically that you do the time. Using loopholes of the Justice system to facilitate criminal behavior has become a feature of the said system which aids in hindering our development and crime reduction. Is the real aim of the system to get justice for those wronged whether it be the accused or a victim?

The Prosecution has the full responsibility of proving the guilt of the accused, and should do so within a framework which seeks to protect the innocent. The Constitution is not to be used as a mechanism to violate human rights but to protect those rights. So those who actually make a choice, and act on that choice to do something illegal and violate another person’s human rights should not be allowed to slip through the cracks.

There is an issue with witnesses due to our “informer fi dead” mentality so many persons get off Scot free after suffering minor conveniences of jail time before being granted bail, DNA however is irrefutable. Concerns regarding corruption and misuse of DNA evidence by Police or the State need to be addressed. A chain of custody for this evidence needs to be adhered to, so that if there is a break in the chain, the offender can be found and the law can deal with them swiftly. This means that harsh enforceable penalties need to be put in place for persons who collect and handle the DNA, and there should always be an atmosphere of transparency for both the prosecution and Defense.

The DNA bank thus needs to operate at International standards so that samples cannot be compromised and security needs to be on point. There has always been a concern of planting evidence at a seen, this is a real issue which needs to be addressed, as corrupt police officers on different occasions seek to get an “easy” conviction. Perhaps the use of body cameras by Crime Scene investigators needs to become standard practice and evidence not captured immediately on footage cannot be admissible. Maybe I am reaching with my suggestions, but I believe that every problem has a solution, and the use of DNA evidence after so many years of opposition should finally be allowed and embraced in the pursuit of justice for all- both the victim and also importantly the accused. There have been so many situations where persons have been saved from years of confinement due to DNA evidence. If our aim is to protect the guilty who can afford to pay for a good Defence lawyer, then the DNA Act is counterproductive, but if the aim is for true Justice then there should be no problem with it.

Informer Culture is Stifling Jamaica’s Development

by: Kymberli Whittaker

Date: May 15, 2015

On any day, it is highly probable that you interact with several persons who have been accused of a crime, but will never be convicted of it. The person you give way to cross in front of you while driving, the person with whom you conduct business with, buy goods from, parents of children your own kids socialize with, the man/woman across the street. You cannot look at someone and tell if they have committed a crime, there is no “look” that a criminal possesses. Guilty persons are walking around free or on bail who may have actually done the act, but because the person’s in the know refuse to speak out, true justice will never be served.

Show me one country without crime, I bet you can find none, yet Jamaica is seen worldwide as being the murder capital of the world by many. Jamaica, self-proclaimed, top tourism destination has fallen nine spots to rank 76 out of 141 countries in the Global Travel & Tourism Competitiveness Report 2015. Jamaica has so much to offer to visitors and we have the potential to earn millions from this industry, however the fear of crime is crippling our image. The persons who call Jamaica home, there are different ways of coping with our high crime rate while trying to conduct businesses, raise families or generally to maintain a livelihood. Some people have given up on staying abreast of current affairs or news which serves of a stark reminder of reality. Others barricade themselves where possible within comfortable or luxurious town homes or residences which can rival any “5 star” hotel, while consuming media from our foreign neighbours.

It seems as if there is some disconnect from Jamaica’s Reality, as crime seems to be an alien concept unless one is directly affected by it. In a year there may be a few campaigns by different groups pleading for justice, and a few walks and marches as people stand in “solidarity” against crime, most currently the no-tolerance policy against child abuse as stories have emerged of young girls either losing their lives or becoming impregnated at the hands of older men, whether family members or strangers. While participation is good however in opposing crime via presenting a unified front, this is not enough and the reasons many crimes cannot be solved is because of pure talk and no action, and when put to the test there is no talk where it counts- at the police station or in the court room.

From ever since we’ve heard the phrase “informer mus dead!!” But that mentality cannot prevail as we complain about the high crime rate and bemoan the reduced opportunities for advancement in Jamaica.  Criminals are elevated and protected through silence to continue to perpetuate injustices against the massive. Statistics from the Office of the Children’s Registry indicate that reporting of crimes against children has risen, but even after a crime is reported, there must be follow-up. The complainants themselves may choose not to follow-up and eventually the case may be eventually thrown out. The witnesses to crimes flat out refuse to speak out, because of fear of telling the truth and also for not wanting to be labeled an informer. These occurrences have disastrous effects on the pursuit of “Justice” for the person whom the crime was perpetuated against. A visit to communities will yield a wealth of information about the crime with people speaking authoritatively, however when asked to speak out , people say that “mi nah go court”, “a nuh my business dat” and “after mi a nuh informer”. And then the already burdened court system becomes stagnated as cases are put off until another date, over and over again.

Arrests can be made daily but making persons accountable for deviating from the law lies with every one of us. Jamaica has a serious crime problem,  that is the reality. Jamaica is not seen as a favourable place to invest by many, corruption is robbing taxpayers of their hard earned  money as money has to spent to remedy illegal acts. Crime whether white collar or blue collar affects every one of us, so persons from all the different fabrics of society need to have no-tolerance policy towards protecting criminals.

 A shift in mindset is the only way that we can move forward. Talking the Truth does not mean that you are an informer.

Stemming the Tide of Murder-Suicides in the Jamaican Constabulary Force

 By: Kymberli Whittaker

"He was a hardworking officer, we never saw it coming"...."How could he do this to his family?"...."What could lead him to this point to kill himself?".... "Could I have done more to help?"...Heart wrenching musings of persons who battle with knowing the perpetrator of a murder-suicide".

Murder-suicide, refers to an incident where a homicide/ killing is committed followed by the perpetrator's suicide almost immediately or within 24 hours after the homicide. Murder is a crime which has to some extent become desensitized  in our society as a result of the steady and unabating occurrence in Jamaica which is captured in explicit detail by our media houses.  We simply ignore  crimes until we or our loved ones are  the ones affected.

Murder-suicides however  in relation to other crimes are relatively uncommon but are increasing at an alarming rate in one particular sector in Jamaica; the sector where the persons vow  “To Protect and Serve”: The Jamaican Constabulary Force.

There are no statistics detailing the frequency of the occurrence of this phenomenon in Jamaica, however reading our nations newspapers or watching our daily news, it has become evident that occurrence is increasing in regularity to the demise of our nation.

We are quick to condemn family members, spouses or affiliates of gunmen who end up  losing their lives or being hurt at the hands of those criminals, yet we as a nation are not removing the veils from our eyes to see that the carrying of a firearm even though legal, puts the family, friends and affiliates of the legal firearm holder at risk. At any time, given the state of mind of the holder anyone can die. It is a sad fact that being a Police Officer does not preclude them from committing a crime and we need to step up to the plate and be able to identify warning signs in the otherwise “law-abiding” citizen, to protect ourselves as it is not guaranteed that we can trust them to protect us.

I categorically state that there is a dilemma in our Police Force.  It is evident that needs are not being effectively met, police officers are slipping through the cracks and they are killing others and themselves. I am not able to speak to the Jamaica Defence Force as even though charged with similar duties, the transgressions of that group are not splattered across our headlines, however the legal gun touters in the JCF are committing crimes not only against themselves but against the wider populace.

It would appear based on the news reports that in Jamaica, Most murder-suicides are spousal/consortial, involving a man killing his wife, girlfriend, ex-wife, or ex-girlfriend, and it is safe to say that most if not all are committed by men. Where the public has to worry about crime perpetuated by stranger, family members and intimate partners of the officers in the police force have a lot to be worried  about and they may be in a real danger which may be concealed from the not so observant onlooker.

Pressure

When the pressure erupts in the life of an officer, anyone in their life may be at risk .I will not in any way seek to down-play the role of Post Traumatic Stress Disorder in the life of an officer, as the work which they undertake on a daily basis may be quite stressful…working long hours to protect citizens in a system which sees them as “Babylon”..they are disrespected by many citizens and to add to this, their pay is not commensurate with the daily risks which they take. All of these factors compounded with the taking of a life in the course of duty which  has psychological repercussions may not be addressed adequately in training and throughout their lifetime of service

Police are expected to take command of all situations, they are who we turn to when we are in need of help. Who are they to turn to? Men especially in Jamaica are not bred or socialized to show weaknesses and thus internalize any signs which would deem them as being weak which is synonymous with being incapable. Police officers are not only men, but they are seen as the “Law” or “Enforcers of the Law”. Yes there is the Chaplaincy Unit or Counselling unit of the JCF which is an avenue for Officers who are not coping to get assistance, but how many Officers will in a emasculating move accept that they are buckling under the pressures of service: I assure you- not many.

Power of the gun

Many underestimate the power of the gun- the feel of an instrument which guarantees you automatic fear or respect from others. Handling one daily may give the holder a feeling of being untouchable as they are the ones in control, but yet off the job they have to contend with personal relationships which may not be going in their way. They control their world while on the clock, but while off the clock, what do they have to do to maintain the respect in their family lives? Some officers resort to violence, they are not bred to talk and reason, instead they are bred to use actions instead of words. When this switch cannot be turned off while in the home arena, problems arise, ranging from verbal disagreements to domestic violence and sadly ultimately to death.This is exacerbated by financial distress, substance abuse or being investigated, internally or by IINDECOM. 

Police Officers face unique stresses , however they are less likely to ask for help. We cannot assume that they have their lives together, more needs to be done, or else these spate of murder-suicides will continue. Periodic mental evaluation of officers is key as our officers are at risk of losing perspective and becoming lethally broken

The signs are there

I cannot accept that no-one saw the changes coming in the officer to result in a murder-suicide . The signs no matter how minute are  there The duty rests on everyone to protect themselves and speak up to assist their loved ones. Report any disturbing behaviour to save not only yourselves but also them, because at the end of the day, the “I should have” or “I wish I had” will not turn back the hands of time and save lives.