Dear Editor,

Among the measures that were announced by Prime Minister Andrew Holness last Wednesday to deal with our crime situation, the matter of domestic and sexual abuse against our women and children took the spotlight.

Imagine this: John has a mischievous ex-lover, girlfriend or wife. His partner files a false report that he abused her, because she wants to get back at him for some reason. John is then taken to the station and detained in this so-called cooling-off period and is embarrassed and inconvenienced.

Knowing that some cops are not prudent and objective, how would taking away John’s liberty before competently investigating the matter further the interests of justice? How could a cop, in this likely situation, reasonably justify John’s detention to ‘cool him off’ and to complete his investigation?

The State said that the Bail Act will be utilised to detain an accused for up to 24 hours, and for possibly longer periods with the authorisation of a justice of the peace (JP), so that the police can investigate whether a crime was or is about to be committed.

One’s liberty should never be left hanging in the balance by any cop. Furthermore, if the police decide to detain on reasonable suspicion, the extension of that detention should not be left to the determination of a JP who is not adequately trained in law.

The police could convince a JP with false and misleading information. The malicious or misinforming police affiant could abuse the process for motives other than to properly bring the accused to justice.

How many cops will properly apply the required two-tiered (objective and subjective) test to firstly satisfy themselves that a person has committed or is about to commit a crime?

An accused must be brought before the court without delay for bail to be considered. Therefore, this out-of-court mechanism of taking him before a JP to extend his detention would only aggrieve citizens and open the State to liability.

There is an abundance of case law (including R v Bathgate [1944] 46 SR (NSW) 281, R v Jeffries [1946] 47 SR (NSW) 284 and Bales v Parmenter [1935] 35 SR (NSW) 182) which outrightly condemns the illegality and the unconstitutionality of the cops’ action in detaining someone for the purposes of questioning, instead of bringing him before the court for a judicial determination.

In Brinegar v United States, J Rutledge said: “In dealing with probable cause, however, as the very name implies, we deal with probabilities. These are not technical; they are the factual and practical considerations of everyday life on which reasonable men, not legal technicians, act.”

He went on: “Probable cause exists where the facts and circumstances within the officers’ knowledge and of which they had reasonably trustworthy information [are] sufficient in themselves to warrant a man of reasonable caution in the belief that an offence has been or being committed.”

The need for more practical and sustainable crime-fighting solutions appears to have been lost on the Holness Administration in their recent pronouncements.

In addition to aggressively enforcing the already existing laws, which is basically what is being proposed now, since the police failed to do so effectively from the start, the measures should include competent investigations coupled with effective policing.

Dujon Russell

dujon.russell@yahoo.com