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!!

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.