The Barbados Bar Association has sounded alarm over aspects of the COVID-19 directives which it says obstruct the constitutional right of access to legal counsel for people in police custody.
Attorney General Dale Marshall confirmed that the BBA had requested across-the-board exemptions for lawyers. But with lawyers not considered “essential workers”, he maintains the attorneys would have to apply on a case-by-case basis.
The BBA contends that a decision to exclude the association from the list of professionals exempt from an ongoing curfew exposes their clients to certain “risks” while detained overnight.
Under last year’s directives, lawyers received a general curfew exemption to visit clients at police stations across the country. But this year, during the 9 p.m. to 5 a.m. curfews in January, the 7 p.m. to 6 a.m. curfews in February and the ongoing 9 p.m. to 6 a.m. curfews, attorneys have been told to apply for a pass on an individual basis.
The bar association, which is led by Rosalind Smith-Millar, revealed that some lawyers are still awaiting word on COVID-19 passes since applying in January, while in other cases their applications were flat out rejected.
The BBA said in a statement: “The inability of attorneys-at-law to legally venture out during curfew hours poses a risk to members of the public, who may find themselves in custody and may not be able to access representation at an especially vulnerable time.
“Moreover, attorneys-at-law who have not obtained passes but who are concerned for the wellbeing of their clients may feel compelled to attend police stations during curfew hours, thereby placing themselves at risk of being arrested and charged with breaching the terms of the directive.
“There is an urgent need for this process to be reconsidered to secure the fundamental constitutional rights of the members of the public as well as our members who are seeking only to uphold those fundamental rights.”
The bar association did not elaborate on the apparent “risk” posed to clients while in overnight custody.
AG Marshall suggested that numerous factors might be responsible for the denial of passes including mistakes that occurred during the application process. Nevertheless, in cases of emergency, police officers would use their discretion, as is allowed under the directive, he said.
The AG said: “There are about 1,400 attorneys and very very few of them actually practice criminal law and things of that sort that would require them to be out during curfew hours and I said to [Mrs. Smith-Millar] that they can apply should they need passes. Their response was ‘but I don’t know when I will need it’.
“That is the difficulty that some of them are in… but as with everybody, the directive says if you have a difficulty, you apply for a pass. I understand that there will be some difficulty because if you have a client who is being held by the police on a given night, you would not know beforehand that you would need a pass.
“But in all cases, the police will apply discretion because the directive says in instances of emergency, there would be no issue.”