After being adjourned last month on account of procedural concerns, the court martial of Ordinary Seaman, Tyrrel Gibbons is still up in the air, as arguments over procedure again prevented the matter from moving forward. The hearing has now been adjourned sine die (without a date being set).
This morning the prosecution, led by Lieutenant Jamar Bourne, made an application for the matter to be handled by a Judge Advocate, due to the technical complexities of the allegations. This was met with strong objection from defence attorney-at-law, Larry Smith, QC, who explained that while the defence did not have a problem with the appointment of a Judge Advocate, the rules do not allow for one to be introduced at this stage of the proceedings.
“Our issue is with the process and having already convened the court martial, our submission is that this should have been done at the outset,” Smith said.
He contended that according to the rules governing court martials, in cases where a Judge Advocate is assigned, that person would be required to swear in the president of the court martial. Smith further argued that with the court martial already in progress and the president already sworn in, the law makes no provision for this to be done mid-stream.
“Rule 21.1.(f) of the Defence Rules and Procedure makes allowances for the person convening the court martial to appoint a Judge Advocate. However, in rules 26 and 27, the Judge Advocate swears in the president and the other members of the tribunal and then the president, having been sworn in, then swears in the Judge Advocate. So how do you get to swear in the Judge Advocate when the president has already been sworn in?” the defence attorney queried.
He submitted, “What would be required from my reading of the law is that the court martial would have to be dissolved under Section 1 of the Defence Act, in the interest of justice. I can find nothing either in the actual parent Act or the subsidiary legislation, which speaks to rectifying this procedural error. I appreciate the role of a Judge Advocate and one is most useful in a court martial like this, but we must follow procedure. This is a military organisation and as lawyers we follow rules as well.”
Gibbons is charged with a civil offence contrary to section 71 (1) of the Defence Act by wrongful communicating information contrary to section 2 (1) (a) of the Official Secrets Act, 1911, as amended by the Official Secrets Act, 1920.
However, with no restart date set, Smith told Barbados TODAY that the uncertainty over the court martial was not fair to his client.
“I haven’t had a chance to respond but I have a challenge with the type of adjournment. A person who is charged with a criminal offence in the civilian system, has a right to know when his or her trial is going to be and when the matter is coming up next for hearing. You cannot have a charge hanging over a person’s head without a date. That is a problem,” said Smith, who revealed that he plans to do some further research before requesting that the court martial convenes to settle this outstanding issue.
He added, “The soldier that is charged is also a human being and he has a life. It is not reasonable to expect him to walk around for the next six months or whenever the case maybe, without knowing his date before the court. I intend to do some research and then in due course I would communicate with the prosecution that we may need to have the matter brought back on to address this serious issue.” [email protected]