Reform

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 Report of 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.

Rights

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.

Citizen's arrest

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.

Grounds

The procedure the officer must follow when arresting me.  We were looking at our fundamental right in Anguilla to personal liberty guaranteed by section 3 of the Anguilla Constitution 1982, and the power of the police to arrest us as an exception to this right.  At this point it might be useful to recall the proper procedure to be followed during the arrest.

An arrest which would otherwise be lawful will be unlawful if the arresting officer neglects to follow the proper procedure during the arrest.  An arresting officer who fails to observe the required procedure may be liable for false imprisonment.  The government, and sometimes, if he was particularly badly behaved, the officer himself personally, may be made to pay damages.  The following are some of our most important common law rules that supplement or explain the constitutional protection of our right to personal liberty.

First, the rule is that the arrested person must be informed that he is under arrest, and he must be informed of the true ground for the arrest either at the time of the arrest or as soon as practicable afterwards.  The rule was originally established at common law by the leading case in 1947 of Christie v Leachinsky, but it is now a constitutional rule. 

So, it is provided by subsection (2) to the same section 3 of the Constitution, that any person who is arrested or detained shall be informed orally and in writing as soon as reasonably practicable, in a language which he understands, of the reasons for his arrest or detention.

The common law which has developed since Christie's 1947 case remains useful for an understanding of the proper application of the rule.  So, it has been held that the purpose of the constitutional right of every citizen to know why he is being detained is so that he will be in a position to know whether he is entitled to resist the arrest.  A person who is being unlawfully arrested has the right to resist.  If John Smith, a young man who is peacefully liming on the street corner, is approached by a police officer who holds on to him and says, “John Smith, come with me.  I am taking you to the Station.  The Sergeant wants to speak to you about wounding Mary Jones last week”, that young man is entitled to pull away and to say, “Do not put your hands on me again, or I will sue you for assault.”  What the officer has to say is something like, “John Smith, I am arresting you for the offence of wounding Mary Jones”.  That would be a lawful way to seize hold of John Smith and take him to the station.  It is not necessary for the ground of arrest to be expressed in precise technical language.  It is sufficient if the arresting officer conveys to the arrestee the substance of the alleged offence. 

The rule that the person arrested is entitled to be told the reason for the arrest does not apply in two circumstances.  The first is, where the arrestee must be taken to have been aware of the reason for the arrest, for example where he is caught 'red handed' in the commission of an offence.  The second is, where the arrestee made it impossible for him to be told the reason for the arrest by counter-attacking or running away.  Of course, if you know that you are being wrongfully arrested, it might be a very dangerous thing for you to resist.  You may get injured, if the police officer has lost his self-control.  It is much better to permit yourself to be illegally detained, and then to instruct a lawyer to sue for the insult and the injury done to you.

Arresting

Person arrested not bearing the same name as contained in the warrant.  We are looking at issues that can arise on arresting someone and depriving them of their liberty.  Officers have to be very careful when arresting someone, even with the protection of a warrant.  There are hidden hazards.  

            So, where a constable arrests the wrong person, that is, a person other than the one named in the warrant, he may be liable in tort for wrongful arrest or false imprisonment.  It is important that the warrant correctly name the person to be arrested.  This is illustrated by the 2002 Trinidadian case of Maharaj v A-G.  The warrant named the plaintiff as “Mary”, when her correct name was Kamaldaye Maharaj.  The arresting constables knew her as Mary.  There was no doubt that she was the person for whom the warrants were intended, and that she was well aware of that fact.  Nevertheless, the court held that the constables had no defence to an action for false imprisonment brought by Kamaldaye after the police case against her had been thrown out.  The warrants failed, as the law required, to correctly name the plaintiff.  In the circumstances, the arrest of the plaintiff ‘Kamaldaye’ was not in obedience to the warrant, which was for a ‘Mary’.

            We may say that can never happen in Anguilla where everybody knows everybody else.  That may have been true 30 years ago.  I am not so sure it still is.

Arrested

Arrested without a warrant.  We are looking at the lawful ways in which our second fundamental right under our 1982 Constitution of Anguilla can be taken away from us.  One way is when we are arrested by a police officer.  The old common law rules governing the powers of arrest without a warrant have been greatly expanded by statute.  Under the common law, a great deal turned on whether or not the offence that had been committed was a felony or was only a misdemeanour.  The common law rule was that where a police officer had reason to believe that I had committed or was about to commit a felony he could arrest me without a warrant.  In the case of a lesser offence, a misdemeanour or a summary charge, generally  speaking, in the absence of special statutory power, an officer without a warrant could only arrest me if I had committed the misdemeanour in his presence or if the officer believed I might escape or cause injury to some person or property.   

            Since the year 2000, section 356 of the Criminal Code provides the new rules for arrest without warrant.  The new rule, is, basically, that a police officer may arrest without warrant a person who has committed an offence that carries a penalty of 5 years imprisonment or longer.  Such an offence is called an arrestable offence.  If the offence is not an arrestable offence, that is, has a maximum sentence of less than 5 years imprisonment, then the officer will be very unwise to arrest the offender.  It is his duty instead to make a report of the commission of the crime at the police station, and to let the Inspector decide whether or not to issue a complaint to the Magistrate's Court.  If a complaint is filed before the Magistrate, the Magistrate will issue a “summons” for the accused person to appear in court to answer the charge. 

            The police officer cannot simply arrest without warrant a person whom he suspects of having committed an offence which carries a penalty of less than 5 years.  Police officers go to police school and are required to study the Criminal Code so that they can be knowledgeable about which offences they can arrest without a warrant, and which ones they must get a warrant for.

            To summarise section 356:

(a) Any police officer or private citizen may arrest without warrant a person whom he has reasonable cause to suspect is in the act of committing an arrestable offence.  Remember that an arrestable offence is one which carries a maximum penalty of 5 years imprisonment or more. 

(b) Where an arrestable offence has been committed, any police officer or private citizen may arrest without warrant a person whom he, with reasonable cause, suspects to be guilty of the offence. 

            In considering whether to carry out an arrest without a warrant, a police constable may often be in a difficult position.  If he delays making an arrest, vital evidence may be lost, and a crime go unpunished.  On the other hand, if he acts too hastily in arresting, he may be held liable for false imprisonment.  The rules are that he may arrest you if he does not know your name and cannot get it, if he thinks you have given a false name, if you have not given a satisfactory address where he can contact you or if you have given a false address, or if arrest is necessary to prevent you causing physical injury to someone or causing loss or damage to property, or causing an unlawful obstruction of the highway, or if he has reasonable grounds for believing that arrest is necessary to protect a child or other vulnerable person.

            The test for determining whether an arresting officer had reasonable cause for making the arrest is whether a reasonable person, assumed to know the law and possessed of the information which was in fact possessed by the officer, would believe that there was at the time of the arrest reasonable and probable cause for it.  As Wooding CJ said in the 1965 Trinidadian case of Irish v Barry,

“The right or power of arrest without warrant ought never to be lightly used. Those who possess it ought, before exercising it, to be observant, receptive and open minded, not hasty in jumping to conclusions on inadequate grounds.  Caution should be exercised before depriving any person of his liberty, and more especially so when no prejudice will result from any consequent delay.”

Where there is only a suspicion that an arrestable offence has been committed, a police officer, but not a private citizen, may arrest without warrant a person whom he reasonably suspects to be guilty of that offence.  But, he should not jump to do so.  The rule is that if there is nothing to be lost by simply reporting the offender and having a summons issued for him to appear in court, then it is safer not to arrest him, nice as that might make the police officer feel.

            Finally, under section 356, where there is only a suspicion that an arrestable offence is about to be committed, a police officer but not a private citizen, may arrest without a warrant.

            There are a number of other laws that give police constables, customs officers, forestry agents, and numerous other officials, powers of arrest without a warrant.  Examples from our laws in Anguilla are section 39 of the Firearms Act (possessing a firearm without a licence); section 49 of the Vehicles and Road Traffic Act  (driving under the influence of alcohol or drugs); section 25 of the Drugs (Prevention of Misuse) Act (any person whom he with reasonable cause suspects of having committed an offence under the Act).  Police officers are expected to study these laws carefully so as not to exceed their powers when arresting a citizen.

Warrants

The warrant of arrest.  The topic of wrongful arrest is one of considerable complexity.  It arises while we are considering the second of our fundamental rights, the right to personal liberty.  Let us start at the beginning.  A person may be arrested either with or without a warrant.  A warrant of arrest is an authority in writing, issued by a justice of the peace or a magistrate, or by any court having civil or criminal jurisdiction, addressed to a police officer to arrest an offender and bring him before the court.  A police officer who arrests within the terms of the warrant will have a complete defence to any action for wrongful arrest, false imprisonment, assault or battery.  That is the principal function of a warrant of arrest.  It is for the protection of the police officer.  Without it, if the person the officer arrested were to be let off by a subsequent trial, the officer could face a suit by the civilian against him personally for one or more of assault, battery, false imprisonment and wrongful arrest.

            There is a law which gives an arresting officer a defence when he arrests a person in obedience even to a defective warrant, or a warrant issued without jurisdiction.  Section 76 of the Anguilla Police Act provides that members of the Royal Anguilla Police force are not liable for any irregularity in a warrant.  The warrant may not have been properly issued by the Magistrate or the JP, or the Magistrate may have lacked jurisdiction.  If this happens, once the Magistrate or JP issued the warrant, and the police officer was only obeying the warrant, this will be a complete defence for the police officer if he should be sued.  That is why police officers are so careful to get a warrant of arrest before going off to arrest someone they suspect of having committed a crime.  Arresting even the right person without a warrant can be a very risky thing for a police officer to do.

            In addition to the police officer being sued, the government may be forced to pay compensation if the person who was wrongfully arrested or locked up brings a constitutional action against the State.  Our constitutional remedies are much broader than our normal private remedies. 

            The basic rule to remember is that, in the absence of statutory authority, a police officer has no right or power to detain us for questioning unless he first arrests us.  Where a constable takes me to the police station, without first arresting me, in order to question me, and then to decide, in the light of my answers, whether to charge me, this would be unlawful and would constitute false imprisonment.  Of course, if the police officer invites me to accompany him to the police station, and I agree to go willingly, I cannot complain afterwards.  However, if I refuse to go willingly, the police officer must decide whether or not to arrest me based on the evidence he already has.  It may be safer for him to leave me while he continues his investigations until he has enough evidence to get a warrant to arrest me.

Informed

Proposals to reform section 3 of the Anguilla Constitution.  We have been looking at our right to personal liberty guaranteed by the Constitution under section 3.  Many lawyers consider this section of the Constitution defective in one specific way.  In dealing with persons arrested on suspicion of having committed an offence, it does not provide that he is entitled to be told of his rights.  These rights include our right to remain silent.  If we volunteer any information to the police after we have been given this warning it can and will be used against us in a court of law.  We also have the right to an attorney to advise us before we give the police a statement.   In the USA, but not in Anguilla, we have the right to be provided with an attorney to advise us before we are questioned by the police. 

It has been left to the Courts to interpret and to enforce the ancient common law entitlement to these rights.  You may agree with me that such a right is better included as in the fundamental rights in our Constitution, rather than being left as a common law right for judges to interpret one way or the other.  The Attorney-General’s Chambers and the police fought hard to have this recommendation deleted from the Report.  They would prefer their powers to interrogate and question suspects left a bit more woolly, as it makes it easier for them to secure a confession or an admission that can be used against the suspect. 

The better modern practice would require that a person arrested should be entitled immediately upon his arrest, and not after he has been brought to the police station and made to sit on the bench for a few hours, to be told of his rights.  You have seen this right at work in US movies, when a police officer pulls out of his pocket a little card with the prisoner's Miranda Rights on it and reads it out to the prisoner.  The process is named after the case in the United States which established that it was a constitutional right.  The officer must as soon as practicable after the arrest read out these rights to the suspect, even as he is taking him to the car or police van.  The 2006 Report of the Constitutional and Electoral Reform Commission recommended that there should be a new sub-section of the Constitution setting out this right in the clearest language.

Another important reform would be to provide for an Ombudsman with power to investigate complaints of abuse of this and other fundamental human rights.  The main function of an Ombudsman is to investigate any complaint relating to any decision or recommendation made or any act done or omitted by any officer of the Government or statutory body in any case in which a member of the public claims to be aggrieved, or appears to the Ombudsman to have sustained injustice as a result of the administrative functions of that officer or body. 

The Ombudsman is found in several Commonwealth Caribbean countries.  These include Antigua and Barbuda, Trinidad and Tobago, and Barbados.  Typical faults in administration that the Ombudsman investigates include delay, bias, unfair discrimination, failure to give proper advice, discourtesy, and failing to follow recognised procedures. 

While the Ombudsman is not established to be a national human rights organisation, in practice the office of the Ombudsman performs some of the functions.  In addition to dealing with complaints of maladministration in the public service, the Ombudsman could investigate complaints of the public against abuse of power by the police.  It would be a very useful reform if, when the office of Ombudsman is introduced into the new Constitution of Anguilla, he was given specific powers to investigate claims of breaches of fundamental rights.

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.

Detained

States of emergency.  We have been looking at the exceptions to the constitutional right to freedom of the person.  There remains one other provision that allows the government to lock us up and deprive us of our right to personal liberty.  It is found hidden away in section 14 of the Constitution.  This is the emergency powers section.  The section says that nothing done under the emergency powers laws is to be deemed a breach of this right, to the extent that the law authorises the taking during any period of public emergency of measures that are reasonably justifiable for dealing with the situation during the period of emergency. 

The law in question is the Emergency Powers Act.  This law permits the Governor in specified circumstances to declare a state of emergency that in effect suspends some of our fundamental rights.  To be lawful the declaration must be published by a proclamation in the Official Gazette.  The Governor may declare that a state of emergency exists when a state of war arises, or as a result of an earthquake, hurricane, flood, fire, outbreak of pestilence, infectious disease or any other calamity.  It may also arise when any person or body of persons take action of such a nature as to be likely to endanger the public safety or public order, eg, rioting breaks out.

When the Governor declares that a state of emergency exists he is authorised to make Regulations that provide for the detention of persons and their deportation and exclusion from Anguilla, without regard to the constitutional protections.  The Regulations may authorise the seizing of any property or the entering and search of any premises without following the constitutional protections.  The declaration lapses at the end of 90 days if the Governor has not previously revoked them by a proclamation published in the Gazette. 

Locked up

Some more of the limits of our right to personal liberty:  In the last post, I began looking at our second fundamental right under our Constitution of Anguilla.  The fourth exception to this right to personal liberty occurs when we are locked up “in execution of the order of a court made in order to secure the fulfilment of any obligation imposed on him by law.”  This is another example of a person being able to be imprisoned for failing to carry out an order of a court compelling the person to do something that some law required him to do.  So, if the Planning Department orders me to pull down a house I started without planning permission, and if I refuse or neglect to pull it down, the Planning Department can get a court order compelling me to pull it down.  If I fail to carry out the order of the court to pull down the house, the court can order me imprisoned until I have it pulled down.

A fifth exception to the constitutional right to personal liberty occurs where a person is seized for the purpose of bringing him before a court in execution of the order of a court.  This happens when the court issues a bench warrant to the police to find a person and bring him before the court.  So, if I receive a Summons to appear in the Magistrate’s Court, and I go to work instead, I may find the police appearing at my work place with a bench warrant to pick me up and bring me to court.  I will not be allowed to complain if this happens.

The sixth exception is the familiar one which gives the police the power to arrest someone upon reasonable suspicion of his having committed or of being about to commit a criminal offence under the law of Anguilla.  Note that the power of arrest is not limited to police officers.  It says that a person can be deprived of his personal liberty, ie, arrested, upon reasonable suspicion of his having committed or of being about to commit a criminal offence under the law of Anguilla.  The question of wrongful arrest is a difficult, but interesting one.  I shall look at this problem in a little more detail in a separate programme.

The seventh exception applies to children who are adjudged to be so unmanageable that it is necessary to confine them for their education or welfare during the period that they are under eighteen years of age.  This can only be done with the consent of their parents or guardians.  This falls within the category of the parent, and the state acting in the place of the parent, making provision for the care and protection of the child.  It is not a form of punishment.

The eighth exception is for the purpose of preventing the spread of an infectious or contagious disease.   It is under this exception that quarantine laws can be justified.  If we are suspected of having contracted one of the listed dangerous and contagious infections, we can be ordered by the health authorities to be confined in a place of quarantine for the specified duration.

The ninth exception is the case of a person who is suspected to be of unsound mind, addicted to drugs or alcohol or a vagrant.  It exists for the purpose of his care and treatment and for the protection of the community.  It is this law that permits the Mental Health Act to provide for mental cases to be picked up and detained at a special ward at the Hospital while they are being observed and treated.

The tenth exception exists for the purpose of preventing the unlawful entry of a person into Anguilla, or for the purpose of effecting his expulsion, extradition or other lawful removal from Anguilla.  This section permits someone to be restricted while he or she is in Anguilla in the course of his extradition or removal from Anguilla.  So, if a visitor becomes a prohibited immigrant, he can be picked up and detained at the Police Station while they wait for a ferry to take him back to St Martin or wherever he came from.

The final exception mentioned in section 3 is in the case of a restriction that may be considered necessary in the execution of a lawful order requiring a person to remain within a specified area within Anguilla or prohibiting him from being within such an area or to such an extent as may be reasonably justifiable for the taking of proceedings against that person relating to the making of such order, or to such extent as may be reasonably justifiable for restraining that person during any visit that he is permitted to make to any part of Anguilla in which, in consequence of any other such order, his presence would otherwise be unlawful.  It is this exception that permits a judge or magistrate to order abusive spouses never again to be present within a certain radius of their victim, or risk going to gaol.  It would permit a foreigner to be allowed into Anguilla solely for the purpose of being conveyed to the Court to be dealt with there in relation to some offence with which he is charged.  
We're not yet finished. I have three more posts on this fundamental right.

Personal Liberty

The second of our fundamental rights enshrined in the 1982 Anguilla Constitution is the right to personal liberty.  That refers to our right not to be locked up in a police cell, or a prison, or a hospital ward, or in any other place of any description, without our consent, or unless some law permits it.

Section 3 of our Constitution provides:

Protection of right to personal liberty

3. (1) No person shall be deprived of his personal liberty save as may be authorised by law in any of the following cases, that is to say—

So, no government officer can order us, even under penalty of arrest, to go to any office building, or police station, or hospital, or health clinic, except there is a law giving them that power. 

As we can expect, there are various exceptions to this fundamental right to personal liberty.  They are all situations authorised by law.  Our House of Assembly has to pass a law that infringes our right to freedom.  No government can by mere executive decision or action take away this fundamental right.   

The first of these exceptions is in consequence of our "unfitness to plead to a criminal charge".  So, if I commit a crime, and come before the court, the court may be satisfied that my mental condition makes me unfit to stand trial.  Does that mean that I am set free to commit another crime?  No, the court can order me confined in some safe place prescribed under the Mental Health Act until the court is satisfied that I am fit to plead to the charge.  Then, when I am better, the court can proceed to try me and to impose such sentence as it considers fit.  But, note that it is the court that orders me deprived of my liberty, and the court does it under the power given to it by an Act.  I cannot be detained under this exception by a person who does not have the legal right to do so.

There is another more obvious way that a court can order me confined.  That is, "in execution of the sentence or order of a court".  This may be a court established in Anguilla or some other country, in respect of a criminal offence of which I have been convicted.   This exception is limited to where a court has sentenced me to a term of imprisonment.  Note that, under this exception, if the police find an escaped prisoner from St Maarten at large in Anguilla, they can arrest him.  The Anguilla court can order him confined even though he has not done anything against the law in Anguilla.  That is as it should be.  If a prisoner escaped from Anguilla and went to St Maarten, we would expect the police and the courts in St Maarten to respect the sentence of the court in Anguilla.  We would want the escaped prisoner confined until he could be brought back to Anguilla to continue serving his sentence.

The third exception is where a judge sentences a lawyer or some other person to serve a term of confinement for being in contempt of court.  It is lawful for us to be deprived of our personal liberty in execution of an order of the High Court or the Court of Appeal or such other court as may be prescribed by the Legislature on the grounds of our contempt of any such court or of another court or tribunal.  Note that the power to order a person who is in contempt of court is limited to the High Court and the Court of Appeal.  A Magistrate would only have the power to confine a person who is in contempt of the Magistrate's Court if a law passed by the Legislature gives that power.  And, no law in Anguilla does so.

A High Court has the widest power to commit a person in contempt of its order to imprisonment, providing the rules are followed.  If I say anything rude to the judge, she can hold a hearing and send me to prison, say, for a week.  A Magistrate, by comparison, has a very limited power to punish for contempt.  The normal way in which a Magistrate can imprison a person for contempt is where the Magistrate has ordered the person to pay a debt, or child support, and the debtor has refused to pay without a good reason.  Additionally, where the Magistrate has ordered someone to do something, or to stop doing something, and the person persists, the magistrate may imprison the offender for up to 10 days.  If someone is rude in the Magistrate's Court, the Magistrate may be able to fine the person, but he cannot commit him to a term of imprisonment in the same way a judge can.  I have known of exceptional cases where a person has been brought before the Judge of the High Court on a charge of contempt in a Magistrate's Court.  Only a High Court Judge can order a person to serve a term of imprisonment for behaving badly in a Magistrate's Court.

To be continued.