A Discussion Site for Good Governance and Corruption in Public Life Issues in the British Overseas Territory of Anguilla in the West Indies, moderated by Don Mitchell CBE QC, of PO Box 83, Anguilla, British West Indies. Email me with your comments and contributions at: idmitch@anguillanet.com.
The FCO proposes to weaken many of the fundamental rights of the Montserratian people. We see this first in the section 5 fundamental right to protection from arbitrary arrest or detention. This provision in the draft Constitution is very weak. It does not provide for informing arrested persons promptly of their rights. They need be told of the reason for their arrest only after they have been brought to the station.
A person needs to know immediately he is arrested of the reason for his arrest. This is so not least because he has a right to know whether he is being illegally arrested so that he can exercise his right to resist the arrest.
The version of the right in the draft is weakened by the provision that he is to be brought “promptly” before a judicial officer. This provision is capable of abuse, particularly in view of the penchant of the police for arresting persons on a Friday afternoon, and then not bringing them before the Magistrate until the next sitting of the court. They ought to be obliged to bring an arrested person before a judicial officer within 24 hours of the arrest. They should bring him to the home of the Magistrate if necessary.
This is, not least, so that the Magistrate can observe the arrested person for signs of physical abuse and to be able to give the necessary directions for a medical examination, and to consider bail.
Proposals for reform. During the 2006 consultations on constitutional and electoral reform, several persons recommended to the Constitutional and Electoral Reform Commission that section 3.(3) of the 1982 Constitution of Anguilla is defective. It presently provides that a person arrested is to be brought before the Magistrate “without delay”. What is to be made of the meaning of this phrase?
Is it permissible to keep the suspect in the police cell for three days, or four days, or five days, on the ground that the investigation is still continuing? This procedure has often been used in the past by police officers to break a person's will and force him to confess his guilt. Some of these confessions have been true, but others have eventually been found to have been false, having been pressured out of weak or mentally defective persons who were not able to stand up to the stress of confinement.
In the more advanced constitutions of the Commonwealth Caribbean the solution has been to provide a strict deadline when a person in custody must be brought before the Magistrate, or he will be entitled to sue for breach of his constitutional rights. In some of our countries it is 24 hours. In others it is 48 hours.
At paragraph 13 of its 2006 Reportof the Constitutional and Electoral Reform Commission the Commission recommended that Anguilla's new Constitution should replace the present vague “without delay” with the stricter “within 48 hours”.
The police and the Attorney-General's Chambers don't like the proposal. But I believe a majority of us would feel safer and happier with such a reform.
The procedure the officer must follow after arresting me. We are looking at our rights under the Constitution once we have been arrested. Subsection (3) of section 3 of the Constitution provides the procedure that must be followed after a person is arrested. It says that, after an arrest, the arresting officer must bring the arrestee before a magistrate without delay. If a private person makes an arrest, he must give the arrestee into the custody of the police or a magistrate as soon as reasonably practicable.
No time limit for detaining an arrested person has been set in the law of Anguilla, but the courts of our region have frowned on a detention of three days. Such a length of time is too long to hold an arrested suspect without charging him. The purpose for taking the arrestee before the magistrate is for the court to consider whether he should be granted bail pending trial.
It is not lawful for the police to arrest a suspect, take him to the station, and keep him there indefinitely until he cracks and signs whatever statement they want him to sign. That is a considered a serious breach of our fundamental human right, and of our common law entitlement not to be forced to incriminate ourselves. Any confession or admission as to the commission of a crime must be freely given, and not forced or tortured out of us. The court will not allow such a confession to be produced in evidence.
Once a suspect has been charged, he must be brought to court on the first court day after the charge has been laid. In the case of arrest for a summary offence, the law permits the police to grant bail to the arrestee.
A number of cases from the region have established the existence of a constitutional right to an attorney, and the right to be informed by the arresting officer of the right to an attorney. In some Constitutions this right is spelled out, but in Anguilla the right remains one derived from common law. A detention will be illegal if the arrested person is not informed of his rights.
Citizens’ arrest. Private citizens in Anguilla have a power of arrest without a warrant. This power arises both at common law and by statute. At common law a citizen may arrest in situations where a person has breached or is about to breach the peace. A breach of the peace is an act done or threatened to be done which either actually harms a person or, in his presence, his property; or is likely to cause harm; or which puts someone in fear of such harm being done. It is the right and duty of every citizen in whose presence an actual or reasonably apprehended breach of the peace is being or is about to be committed. The purpose is to make the person who is breaching or threatening to breach the peace refrain from so doing. If it is appropriate, the citizen may detain him against his will.
In the case of Albert v Lavin (1981) the appellant, who caused a disturbance in a bus queue while attempting to board a bus, was arrested by an off-duty policeman. He resisted the arrest apparently disbelieving that the officer was a policeman. The court held that even if his belief had been reasonable, this did not make his resistance lawful, since in the circumstances his arrest was lawful. Even a private citizen had the right to arrest someone who has committed a breach of the peace in his presence. Whether the person who arrested him was a police officer or a private citizen was irrelevant.
Where the private citizen reasonable believes that there is an imminent threat of a breach of the peace he is justified in arresting the person who threatens the peace. In R v Howell (1981) the appellant and his friends caused a disturbance on the street after a party. Following complaints from neighbours the police arrived and asked the appellant to leave. He refused and continued to swear at the police. One of the officers took hold of his arm and a fracas ensued. He was arrested, charged with assaulting a police officer in the execution of his duty, and convicted. He appealed his conviction on the ground that his arrest was unlawful and therefore, if he had struck the officer, it would have been in self-defence in escaping an illegal arrest.
The English Court of Appeal took the opportunity to set out definitively when the power of arrest without warrant for a breach of the peace existed. It exists where:
·a breach of the peace was committed in the presence of the person making the arrest; or
·the arrestor reasonably supposes that such a breach of the peace would be committed in the immediate future by the person arrested; or
·where a breach of the peace had been committed and it was reasonably believed that a renewal of it was threatened.
So, at common law any person can arrest without warrant a person whom he sees committing a murder, wounding, malicious damage and similar offences in his presence, or one about to do so.
In addition to the above common law provisions, statute has amplified a private citizen’s power of arrest. So, section 2 of the Criminal Procedure Act empowers any person in Anguilla to apprehend a person found committing an offence punishable either upon indictment or upon summary conviction without a warrant and to take him before the Magistrate to be dealt with. This is a very broad power. In most countries such a power is limited to cases where the accused is committing an indictable offence, or in some cases a felony. Additionally, the owner of property or his agent may arrest any person whom he finds committing an offence against his property.
The person arrested is required to be turned over to a police officer promptly. The officer will take statements and will know what to do next.
