Bail

Bail:  We are looking at the second of our fundamental rights in Anguilla, the right to personal liberty.  The right to bail when we are in custody is properly to be considered in any discussion on the right to personal liberty.  When we have been arrested and brought before the Magistrate, we shall not have enjoyed this right if the Magistrate does not consider the question whether we ought to be granted bail until the case against us is made ready.  Sometimes, it can take weeks or months before the police are ready to present the evidence against us to the court.  It is considered unjust for us to remain in custody until the police get their act together and decide to bring forward the case before the court.  Once we are convicted by the court, we can no longer claim to have any right to personal liberty. 

Until we are proved guilty, it must be that only in exceptional cases will the Magistrate order us to be confined pending the trial.  For centuries the proper test of whether bail should be granted or refused has been whether the defendant will appear for trial.  Bail may never be withheld merely as punishment.  This principle is as applicable now as it was centuries ago.  So, it is at the early stage when an arrested person is brought before the Magistrate for the first time after arrest that the question of bail arises.  The Magistrate must consider the question even if the person in custody is too poor or too unaware of his or her right to ask for bail. 

The rules for giving an accused person in custody bail are contained in the Magistrate’s Code of Procedure Act.  Section 67 states that a person charged with an offence punishable with fine or imprisonment for a term not exceeding two years is entitled to be admitted to bail.  That means that the police are not permitted, except in the most exceptional case that I can hardly imagine now, to object to bail.  If fact, in such minor crimes they usually grant bail at the police station and do not even bother to bring the accused to court for him or her to apply to the Magistrate for bail. 

Where the offence is more serious, the Magistrate may grant bail depending, for example, on whether the Magistrate considers that the offender might flee from the jurisdiction, or might commit another offence, or might interfere with the witnesses. 

In the two cases of murder and treason the Magistrate may not grant bail.  Only the judge can approve granting bail in such a case.  The procedure is for the judge to hear the application for bail, and if the judge considers that it is appropriate for the person charged with murder or treason to be bailed, then the judge sends the matter to the Magistrate to admit the person to bail.  The judge does not set the conditions for bail himself or herself.  The reason for this is that the bail may have to be policed, and the accused brought back to court from time to time to have bail renewed.  It is more appropriate for the Magistrate’s Court to be the place where all this activity is conducted.

The circumstances in which a Commonwealth Caribbean court may today refuse bail are well established by the cases.  The right to personal liberty, although not absolute, is a right which is at the heart of all political systems that purport to abide by the rule of law and protect the individual against arbitrary detention.  The only recognised grounds for refusing bail are (i) the risk of the defendant absconding bail; (ii) the risk of the defendant interfering with the course of justice; (iii) the risk of the defendant reoffending while out on bail; (iv) preserving public order; and (v) if detention is necessary to protect the defendant.  We have a useful judgment from George-Creque J on this very provision in the law of Anguilla.

Abolition

The British abolished the death penalty without our consent!  Some persons express themselves to be very bitter about the way that they perceive that the death penalty was abolished in the British Overseas Territories in the West Indies.  They say that it was an arbitrary exercise of power by the British Government over us.  They protest that it was a dictatorial step taken by the Foreign and Commonwealth Office, and which was contrary to the wishes of the people.  They say it was an imposition on us, which was made without our knowledge or consent. From what I have been told, it would appear that nothing could be further from the truth.

First, some background.  The British Government, it is true, is bound both the Universal Declaration of Human Rights of the United Nations and by the European Convention on Human Rights.  The Convention is a constitutional document binding all members of the European Union.  Under the Convention, it is illegal for a member government to execute any person for any offence.  The reason for this general aversion to the death penalty is buried in the psyche and subconscious of the Europeans.  They have had such a blood-soaked and murderous past, stretching over 3,000 years of written history, not to mention the hundreds of thousands of years before writing was invented, that they have developed an instinctive aversion to the death penalty.  It may seem curious to some of us, but they consider the death penalty barbarous and uncivilised.  They cannot help having this feeling.  It is now part of their DNA, so to say. 

The guilt the Europeans feel for their 10,000-year recent history of war; massacre; burnings of religious heretics at the stake; pogroms against the Jews; drownings of witches; hanging, drawing and quartering of rebels; keel-hauling of mutineers; death by exposure while hanging in irons for bandits; the euthanasia of mentally retarded children; the elimination of Gypsies and other "subnormals"; religious wars; tribal wars; national wars; ethnic cleansings; the Holocaust; war upon war; not to mention the thousands of innocent persons who have been wrongfully convicted of capital offences, and executed, only to be proven innocent after they have been executed, have induced such an instinctive revulsion at the death penalty, that the Europeans will not countenance in their midst any country that retains the death penalty.  Their partners in the European Union hold Britain responsible for any outrages against their conscience that take place in the British Overseas Territories by the application of the death penalty.  It is undoubtedly true that, during the decades of the 1970’s and the 1980’s, the British were under intense international pressure to force us in the Overseas Territories to get rid of hanging.

       The death penalty has always been popular in the Americas, including the West Indies.  It satisfies the very human need to implement the Biblical injunction of “an eye for an eye, and a tooth for a tooth.”  During the decade of the 1980s, the Foreign and Commonwealth Office repeatedly pressured the governments of the Overseas Territories to abolish hanging.  They were tired of being harangued and abused by their European colleagues at international conferences on human rights.  The British Government met stiff resistance to their urgings that we abolish the death penalty.

       The West Indian governments of the Overseas Territories, though at first loath to give in to the pleadings of the British Government, eventually saw the point.  By the end of the decade they were expressing themselves no longer opposed to the abolition of the death penalty.  But, they did not want to be the ones to introduce the idea into the parliaments of the West Indies.  They knew that the suggestion of abolishing hanging would meet with universal opposition.  Their governments would become so unpopular that they would almost certainly be defeated at the next polls. 

A solution was worked out.  The Premiers and Chief Ministers of the British Overseas Territories in the West Indies, at one of their annual conferences in London, put the solution to the FCO.  The suggestion was made that it would be much cleaner, and cause many fewer problems for the local governments, if the British Government would do it for them.  So, the British were encouraged by our governments to pass the necessary Order in Council that abolished the death penalty.  As promised, none of our governments objected.  It was done quietly and peacefully.  Hardly anyone noticed.  The British need to have their name cleared of the charge of permitting state-sponsored killings in their Overseas Territories was satisfied.  The West Indian governments need to stay clear of any suggestion that they were soft on crime by proposing the abolition of hanging was met.  Everyone was happy. 

       And, so we can say that in Anguilla, the death penalty has been abolished since the year 1991.  The right to life is absolute.  Well, nearly absolute.

       It is still lawful for one of us to take the life of another in using reasonable force for the defence of person or property.  This is the defence of self-defence.  If a violent person is attempting to evade arrest, or to escape from prison, and he is shot in the process of effecting that arrest or preventing that escape, that would be a lawful killing.  In the unlikely event of a riot, insurrection, or mutiny, if a lawful order is given to fire on the rioters, any deaths will not be in breach of the constitutional protection of the right to life.  And, finally, in the event that Anguillians are involved in a lawful war, our soldiers firing on an enemy as a result of orders to do so, will not be in breach of the provision.  Killing in pursuance of a lawful war is no murder.

       But, generally, when it comes to the death penalty for murder, it is safe to say that it has been completely abolished in Anguilla.  The protection of the right to life in Anguilla is sacrosanct.

Carnival

Penny Legg should not have been censored. So wrote one of my correspondents. I do not know Penny Legg. I only know that she is the wife of the Governor’s Staff Officer. She also writes for The Anguillian Newspaper. She writes well. She recently did a post on her blog about the knifing of the young man in The Valley over Carnival. I reported at the time that I thought the post she wrote was quite perceptive. The following day, the post disappeared from her blog.

It was an innocent enough post. Indeed, she claims that she only removed it because of viruses and the spam that it attracted. Some of my correspondents think they know better.

Perhaps, the only criticism that could have been made about the post was that it naively came to the conclusion that any American or European traveler could care in the slightest what the fate is of a poor black Jamaican lad in Anguilla. As if such a stabbing would have any impact at all. Still, the post was caring and concerned. It should not have been removed from the blog. It should be preserved.

This is what she wrote:

Sunday, 10 August 2008
Carnival Trouble

As the 2008 Carnival season comes to a close, there were reports of a stabbing yesterday, Saturday 8 August, as rival gangs decided that the Last Lap Sunrise Street Jam, in the streets of The Valley, was the perfect place to stage a riot. I understand that police had to be drafted in from neighbouring island, St Martin, to assist Royal Anguilla Police with bringing order to the island once again.

This morning there is nothing about this event in the media, but talk is rife and people are shocked. There is no official news on the victim yet. It is understood though that the hospital broadcast calls for blood donors to come forward. As our radio, along with most of the rest of our possessions, is in a box waiting to be shipped, we missed this appeal.

If Anguilla means to ride out the world recession it must clean up its act. People have less money for holidays in their pockets and this must inevitably equate to fewer tourists coming to the island. Anguilla only has tourism. Without the tourist dollar, pound or euro Anguilla will sink. An American family, for example, faced with the option of going somewhere in the US or going to Anguilla for their well earned break, will look at crime levels and make judgements on how safe they feel the destination to be. At present, a local US resort will win hands down. Anguilla needs to look critically at the problem it has with its youth.

Some serious thought needs to go into formulating a response. Leaders also have to look hard at role models and throw the book at those who betray the public's trust. If those people youth look up to are seen, for example, to brandish and fire a gun, and are seen to get away with it, then what message does that send to the young of Anguilla? Role Models who commit crime should be used as an example and punished accordingly.

I am sorry to be leaving Anguilla but sorrier still that Anguilla is in its present state. Whatever prompted the riot yesterday, nothing gives anyone the right to stab anyone else.

Posted by Penny Legg at 09:57

I think her post is worth preserving. The visiting touroids could not care less that the young man subsequently died.

Carnival Riot

Stabbed to Death. I am too old for Carnival. So, I missed “Last Lap”. That was yesterday, Saturday. Seems like a good thing I did, too. One young man was stabbed to death. Orlando Johnson, a 21-year old Jamaican national and Anguillian gang member, died this morning from injuries received in an exchange of stabs.

Penny Legg has the most perceptive observations on the incident. You can read what she says for yourself at her blog. It is astonishing to read that we had to bring police officers over from St Martin to help quell the riot.

She wrote those words before we learned that the young man has since died.

His mother is said to have received stab wounds while putting him in a car to take him to the hospital. There is no word on her condition at this time. God knows how many others received injuries in the riot.

As one Anguillian said, things will not improve until we give the children what they need: love, attention, and encouragement. Our failure as a society over the past twenty years to bring up our children with values and standards is a national tragedy that is only now beginning to bear its evil fruit.

When the news of this killing hits the tourist circulars, what is the betting that tourism this coming season will take an even bigger hit than we were expecting? What a mess we are in.

Crime Rate

“Crime Has Been Reduced this Year”. I may have misheard the Chief Minister’s Christmas message on the radio the other day. I thought I heard him congratulating us on a reducing crime rate. Crime rate down? I wondered which crime rate he was thinking of. When we compare murders in 2006 with the previous year 2005, we are looking at an increase from zero to ten. The facts are:

2005: January-December

Zero, zilch, no murders.

2006: January-December

Ten murders. They have all been widely reported in both the local and regional press. So, he has no excuse for not knowing about them. It is painful to recap these stories, particularly for the distressed families. But, my principal concern is for those young men whose deaths in 2007 we might be able to prevent if we take the firm and dramatic action that is necessary. It is my thesis that papering over the fissures in our social fabric for the sake of feel-good tourism promotion will in the long run do more harm than good. Those murdered in Anguilla, or in relation to their activities in Anguilla, in this year 2006 were:

1. Dwayne Connor (23) shot to death in North Valley. Suspected cocaine deal gone wrong. See story in “The Anguillian Newspaper” here. The story was also reported in “The Anguilla Guide” here.

2. Kwahmi Brooks stabbed to death allegedly as a “loyalty” test by St Kitts-based cocaine suppliers to a young recruit in Anguilla. See the story from “The Anguilla Guide” here. It was also in “The Anguillian Newspaper” here. No 8 below, Jeffrey Herbert, is alleged to have been executed on his return to St Kitts for wasting his time on the recruit and on putting him to this test.

3. Shane Fraites (22) allegedly clubbed to death at West end. Three juveniles charged with his murder. The story was carried in “The Anguilla Guide” here. It was also in “The Anguillian Newspaper” here.

4. Louvan Webster Jr (22) missing on a trip from Anguilla to St Maarten, allegedly murdered in a cocaine deal gone wrong. The story was carried by “The Anguillian Newspaper” here.

5. Michael Gumbs allegedly a marijuana-induced-schizophrenic, shot to death by a police officer in self-defence at The Quarter.

6. James Wilkinson shot to death in St Kitts after being deported from Anguilla where he had allegedly been dealing cocaine. The story was partially carried in “The Democrat Newspaper” here.

7. Deon Warner (25) of Anguilla shot in his face and killed in Nevis allegedly in a drug deal gone bad. The story was carried in various issues of the “St Kitts Nevis Observer” here, and here and here.

8. Jeffrey Herbert (33) allegedly executed by his gang boss in St Kitts after being deported from Anguilla. Information is that he was punished for having failed to carry out his assigned “hit” on an Anguillian cocaine dealer who had not been paying for his supplies. See a short mention of the killing on the Royal St Kitts & Nevis Police Force website here, and in the St Kitts Nevis Observer here.

9. Steven Bryan killed in prison where he was on remand awaiting trial for the 2003 murder of schoolgirl Jamida Webster, whose brutally butchered body had been left draped in a tree in what looks suspiciously like a typical Columbian-style punishment killing. See the story in the Anguillian Newspaper here

10. Clifford Christie (19) stabbed to death in a senseless incident at a cricket match at the Webster Park in November. The story was carried by The Anguillian Newspaper here.

And these are just the murders! They do not include the innumerable burglaries, robberies, shootings, knifings, and rapes, not to mention the related child abuse and spousal abuse cases flowing in an ever-widening stream from Anguilla’s rising addiction to cocaine and guns. How could these incidents be described as “crime has been reduced this year”? God alone knows what 2007 holds in store for us!