There are growing fears in judicial circles that some Jamaican cops are using statements from non-existent or ‘ghost witnesses’ to detain accused persons indefinitely, with some being convicted and jailed.

The practice has forced many lawyers to stage their own search for these alleged witnesses, in order to test suspect statements ‘tendered’ to police officers, often from non-existent addresses.

“It is a major issue, and has become so since the Amendment to the Evidence Act, because, now statements can be admitted into evidence where the witness cannot be found,” complained George Soutar, president of the Advocates Association of Jamaica.

“And what we suspect, for sometime, is that the police, in an effort to utilise the system, have been creating witnesses,” Soutar told the Sunday Observer.

He said the police created “elaborate descriptions” of the alleged witnesses, giving details of family, area of birth and even connections to the accused. “In that situation, it is very difficult for the presentation to be discredited,” Soutar noted.

Lawyers said their searches often found that witnesses did not exist, and where they did, sometimes deny giving any statement, or even being interviewed by police.

But there is fear in the judicial system that the ‘statements’ of fictitious witnesses could keep accused persons behind bars without bail for long periods of time, while the ‘witness’ is being sought.

Carolyn Gomes, executive director of the human rights group, Jamaicans For Justice (JFJ) said the issue was well known to her organisation.

“It has been going on for a long time, and I’m surprised that you were not aware of it. And I fear that individuals have been convicted simply because the police say they cannot find the witnesses, but their statements were admitted into evidence and convictions received,” she said.

Gomes cited one instance where a statement from an alleged witness (who the police claimed they could not find) but who was acquainted with the accused, was manufactured and was slated to be admitted into evidence.

“Had the accused not been vigilant, he could have gone to prison on the basis of this statement being admitted into evidence. It took handwriting experts to prove that it could not have been written by the witness the police claimed,” Gomes said.

Convener of Families Against State Terrorism (FAST), Yvonne McCalla-Sobers had similar sentiments. “It happens very regularly. And the police themselves do not even know about the repercussions they create when they perpetuate fraud like that,” she said.

According to her, the police had corrupted the system which was put in place to protect the safety of prospective witnesses, and one done in good faith to prevent reprisals.

“The web of deceit has the potential to cause reprisals against individuals who the police name as having signed statements. So sometimes you hear of someone dying and everybody is asking what were they involved in. You can never tell if there isn’t a statement somewhere which they are alleged to have signed,” she suggested.

The Evidence (Amendment) Act, section 31D (e) makes provision for statements to be admissible in criminal proceedings in certain circumstances, where the witness cannot be present in court, such as in death, grave illness, if the witness cannot be found after all reasonable steps have been taken to locate him or her, or if the witness has been kept away by threats of bodily harm and no reasonable steps can be taken to provide protection.

The Evidence Act also allows for video evidence to be admitted where a witness feels physically threatened in coming to court.

House Speaker Delroy Chuck said that when the Act was being promulgated, the then Opposition Jamaica Labour Party (JLP) had fears that it could be abused.

“The law allows for the statements of witnesses to be used in the event of death, or where the witnesses have moved to another jurisdiction or where efforts to find them have proven futile. But there was always the fear that manufactured statements or ‘ghost witnesses’ could be brought into the picture,” Chuck said.

Soutar said while the evidence of the practice was mostly anecdotal, his association had documented two recent instances of ‘ghost witnesses’ being submitted by police.

“In the last two years, I have asked our members to send me documents relating to some of the cases. By and large they have not done so, but there is documentation on at least two cases, and because of stridency from the association, I am not even going to ask the court for a dismissal. I’m carrying it to its logical conclusion, because I want the material to take to the minister,” he said.

On Thursday, while unveiling the 12 most wanted criminals in Jamaica, Assistant Commissioner Denver Frater, bemoaned the difficulty the police faced in getting witnesses.

McCalla-Sobers cautioned Chief Justice Zaila McCalla to act to prevent judges becoming “inadvertent co-conspirators”.

“It is not very often that you will hear a judge say, this case has been coming to the courts for too long and so dismiss it for lack of evidence. So I would caution the new Chief Justice to advise her judges to be on the lookout for the practice,” she said.

Gomes urged that the reform of the justice system be speeded up to ensure that the abuses were stopped.