MULLINGS.... presented submissions on behalf of CBA

The following is an edited version of the Cornwall Bar Association's submissions on the Fingerprint (Amendment) Act 2003 presented recently by executive member and MP, Clive Mullings, to the Joint Select Committee of Parliament.

The Cornwall Bar Association Executive Committee has had the benefit of reading and hearing submissions on the Fingerprint (Amendment) Act of the Norman Manley Law School, the Jamaica Bar Association and the Farquharson Institute.

We wish to adopt and endorse all the shortcomings of the proposed legislation and the erosion of the rights of the citizen for the benefit of the state.

In light of those submissions we think it superfluous to trammel ground already heavily canvassed and instead we propose to look at what we consider to be practical considerations.

There are, of course, regulations which cover the rights and conditions of people in custody, namely, the Prisons (Lock-ups) Regulations 1980, see The Jamaica Gazette Supplement Proclamations, Rules and Regulations, of September 10, 1980. But as that case illustrated, there is little or no compliance with these rules. The sad reality is that from a person is taken into police custody his humanity is no longer the primary consideration, neither are his rights, but only the possibility that he may or may not be a criminal offender.

The real question therefore is if the police powers are further enlarged what rights will the citizen be left with if he is suspected of being involved in criminal behaviour?

We therefore repeat our earlier submission that it is of more primary importance first to ensure that the police act in a civilised manner than to ratify what has already been established as extra legal behaviour on their part.

There is also the further question as to what use is at present being made of fingerprint evidence and where has it been shown that should the police have the right to take the fingerprints at an earlier stage it will assist the investigation.

In this regard, we refer to the submissions of the Farquharson Institute referring to the article by Simon Cole about the "Myth of Fingerprints" and wish to add that fairly recently in Scotland fingerprint evidence came under severe scrutiny in the case of Detective Constable Shirley McKie, 37, who was charged with perjury after fingerprint experts wrongly claimed she was at the scene of a murder in Kilmarnock in 1997. Ms McKie repeatedly denied she was there.

This case clearly illustrates that fingerprint evidence is opinion evidence and experts can and do disagree on the conclusions that are drawn. It raises the question also of the reliability of fingerprint evidence and the manner in which they are collected and analysed. As any practitioner in our courts will tell you, there are at present very few cases before our courts in which fingerprint evidence has been utilised. One of the basic reasons for this is the absence of proper crime scene techniques being used in criminal investigations and the need for more highly specialised training of our detectives. The amendment of the legislation is therefore a step that will only become necessary when these other elements of crime detection are established. To amend the law at this stage would only provide further opportunities for the abuse of the rights of citizens to take place.

We also submit that to remove to some extent the rights of the court to order the taking of fingerprints and give it to police removes a judicial power and grants it to an arm of the Executive. But whereas the courts exist to protect the rights of the citizen and should act with that in mind the Executive is not primarily concerned with the rights of the citizen but with the power of the state. Over the last 40 years we have seen several laws which erode the rights of citizens passed in an effort to curtail criminal activity. In reality, the effect of these laws has been to bring crime to the levels that now exist. This is because effective crime management can only exist with the co-operation of the citizen who can see that they have a vested interest in making it work. To grant powers which more likely than not will lead to abuses will only alienate the citizen from law enforcement officials and will not deter crime.

With regard to the taking of photographs, this has been an area of abuse by the police in the past and at present, several cases now before the courts rely on identification evidence and experience has shown that this is an area fraught with the danger of miscarriages of justice. Police at present are known to have people photographed upon detention or to take pictures of detainees from their homes and those photographs are then used to bolster the recognition of victims of their alleged attackers prior to identification parades. If the purpose of having photographs is to bolster the database of known criminal offenders, then clearly it is only upon proof that the person is such an offender that could justify the taking of his or her photograph. It is difficult to understand how the taking of a detainee's photograph will assist in the investigation without circumventing the need for an identification parade and since identification is also capable of being flawed, why should powers again be granted that can so easily lead to abuse?

From all of this, it can be seen that we are not happy with the proposed basis for the amendment of the law. We have no guarantees that this will not lead to further abuse of the rights of the citizen by the state and perhaps of more significance is that there appears to be no regulation of the state in the investigative process to guarantee fairness. Until the state is properly regulated and steps are taken to ensure that proper investigative techniques are utilised then this will only be another step to reduce the rights of citizens. Of course, the irony is not lost on us that the proposed amendments merely legally allow the police to do what they have been doing for years without legal authority.

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