The Mia Mottley administration is being accused of failing to consult with members of the legal profession before presenting to Parliament today, a Bill to drastically change the way in which criminal justice is administered in this country.
The move has been condemned by senior lawyers and the head of the local Bar who all offered swift and scathing responses with one noted criminal attorney charging that it appears “Government can do whatever it likes” because of its overwhelming majority in Parliament.
“They are enacting serious major changes to the criminal justice system,” charged prominent attorney-at-law Andrew Pilgrim Q.C.
“As I understand it, they have changed the requirement for a unanimous jury verdict for certain categories of murder and they have also taken away the right to make an unsworn statement from the dock. Those are the two major sweeping changes for the defence,” Pilgrim told Barbados TODAY.
“If you are making changes like this, don’t you consult the people you represent, who in this case would be represented by the Bar Association and the general public? Don’t you ask them, ‘how does this affect you; how does this affect your clients; do you have any views on whether this is the right way or the wrong way to go?” he queried.
“In my opinion, you could only feel you could go and do these types of things, if you have a type complex that you think you can do anything. It is sad to say, but this is a comment that ‘we have a 30 to zero victory in an election’. This represents the type of activity that says ‘your opinion doesn’t matter to me’.”
The Bill, which went before the Lower House earlier today, provides for a Criminal Justice (Miscellaneous Provisions) Act 2020 that amends six other criminal Acts, which among other things, abolishes the requirement for a unanimous jury verdict for murder and the right of an accused to make an unsworn statement from the dock in an indictable case.
In an interview with Barbados TODAY president of the Barbados Bar Association Rosalind Smith-Millar expressed disappointment at not having any previous knowledge of the proposed changes.
She revealed that she had seen the document today for the first time.
“As far as I am aware there was no consultation. If someone was consulted then I wouldn’t be able to say. It was not sent through the Bar as far as I am aware and this has taken us completely by surprise,” she admitted.
“We can’t tell the elective Government what laws to make or not make, but something that is this fundamental to the criminal justice system I would like to think that the Bar would have been given the opportunity to look at it, consider it and make comments on it. I am not aware that has happened. It may be that particular lawyers were consulted, if that happened I don’t know, but I am not aware of any consultation with the Bar Association.”
Smith-Millar said she had circulated the document to members of the association and asked them to urgently submit any comments.
She said the Bar would be presenting a document to Government outlining its recommendations and concerns.
“We can only say what we think about any proposed legislation and hope that we are heard, considered and depending on what the recommendations from the members are, that those considerations are taken into account,” Smith-Millar said.
President of the Democratic Labour Party (DLP) and criminal attorney Verla DePeiza accused Government of trying to “sneak” the legislation at a time when the entire country was concerned with COVID-19.
She said the proposed legislation, which now has to be passed in the Senate, was an attack on an accused’s Constitutional rights.
“It is part of an insidious creep that we are seeing whittling away people’s rights. You have a right to a fair trial and you have the right to be considered innocent until proven guilty. More and more changes are being made that almost have the import of forcing an accused person to prove their innocence,” DePeiza contended.
“There is nothing really left as a Constitutional guarantee that means that you are innocent until somebody else proves you guilty. The right not to incriminate yourself has gone completely out through the window.”
Pilgrim also expressed fears that with Government’s overwhelming numbers in Parliament, Barbadians could wake up one morning and realize that trial by jury had been abolished.
“I don’t know what’s next because Government can do whatever it likes…clearly…and they don’t feel the need to represent the people. And in this case I represent the people, so I am totally disappointed and disillusioned with that type of activity especially when everybody in this country is thinking about COVID-19,” Pilgrim complained.
“So you bring out changes under the COVID-19, and then moments later, you are attempting to change the law on jury trials for murder in a country that has been criticized by the highest court in the land – that is the Caribbean Court of Justice – saying that we rely too heavily on confessions to get convictions for murder. Now we are now tilting the battlefield in favour of a prosecution that is relying on confessions 99.9 per cent of the time.”
Pilgrim was referring to the Carlton Junior Hall vs The Queen judgment in February this year in which the CCJ ruled that more “searching” investigations and prosecutions must be done in the region when it comes to criminal cases, and especially capital cases.”