A landmark case in Caribbean military justice has drawn attention to the delicate balance between maintaining military discipline and ensuring due process for service members as the Caribbean Court of Justice (CCJ) on Friday quashed the court-martial conviction of a Coast Guardsman.
The CCJ has dismissed an appeal by the Barbados Defence Force (BDF) to uphold a court-martial conviction against former Coast Guard commissioned officer David Anthony Harewood.
In a unanimous ruling, the CCJ upheld an earlier decision by the Court of Appeal to quash Harewood’s conviction on charges of conduct prejudicial to good order and military discipline.
The case stemmed from a 2018 investigation into suspected criminal activity within the Coast Guard division of the BDF. Harewood was charged in May 2019 under section 75 of the Defence Act, which states: “Any person who, being subject to military law under this Act, does, or omits to do, any act or thing that is prejudicial to good order and military discipline is guilty of an offence and liable on conviction by court-martial to 2 years imprisonment or any less punishment provided by this Act.”
Whilst the court martial initially found Harewood guilty on two counts in June 2019, the Barbados Court of Appeal later quashed the convictions, citing concerns about the legal basis of the charges.
In dismissing the BDF’s appeal, the CCJ considered whether section 75 of the Act complied with constitutional standards of legal certainty and due process. Justice Peter Jamadar, delivering the court’s reasons, said: “The language of section 75 is expressed with sufficient clarity to be capable of objective assessment and self-regulation.”
He added: “International military guidelines contain examples of what may constitute an offence falling under the section. Also, the open-endedness of the offence is academically acknowledged and its utility in a military context is accepted.”
But the CCJ found that the specific charge against Harewood lacked sufficient detail. Justice Jamadar ruled: “In the current case, the particulars of charge four lacked sufficient particularity. In a section 75 charge, the constitutional requirements of due process, the protection of the law, and fundamental fairness must be satisfied in the statement of the particulars of the offence, given the broad and general wording of the statutory offence.”
CCJ President Justice Adrian Saunders in a concurring opinion, emphasised the unique nature of military justice: “The Constitution of Barbados recognises, even if implicitly, the uniqueness of court-martials and the resulting specialised procedures and rules that exist for the prosecution of service members for transgressions committed in the course of service.”
He continued: “The military requires enforcement of the strictest discipline. Courts-martial are specifically designed to ensure that breaches of military discipline and the unique requirements of military life and service are appropriately addressed, not by civilian magistrates or judges, but by military personnel.”
Nonetheless, Justice Saunders stressed that constitutional protections still apply: “Courts-martial are not exempt from a duty to abide by overarching constitutional values.”
On the specific charge against Harewood, Justice Saunders ruled: “The appeal could not succeed as the charge, as laid, lacked the specificity, the particulars, necessary to allow the accused to properly defend himself. This defect implicated the constitutional right of the accused to the protection of the law. Where a person is charged, they must be told precisely what they are accused of, including the time, place, and manner of commission of the alleged offence.”
While upholding the dismissal of the conviction, the CCJ judges differed from the Court of Appeal in finding that section 75 itself was not unconstitutional. Justice Saunders stated: “Section 75 is neither vague nor unconstitutional. Provided they are adequately particularised, charges laid under section 75 may be brought and are often conducive to maintaining discipline, unit cohesion, and overall operational effectiveness.”
The ruling marks the end of a legal process that began with an investigation in October 2018. The CCJ made no order as to costs.
Justice Saunders emphasised the importance of clear and specific charges: “A well-particularised charge also guides the tribunal in the presentation and evaluation of evidence, making it easier for all to focus on relevant facts and determine whether the alleged conduct matches the elements of the charged offence.”
The CCJ’s decision highlights the unique nature of military law within the broader legal system. Justice Jamadar noted: “The purpose of that section of the Act was to maintain a disciplined armed force. Similar provisions exist in numerous jurisdictions and have been interpreted and applied without compromising the rights of military officers.”
But the court was clear that this uniqueness does not exempt military justice from constitutional standards. Justice Saunders stated: “By excluding them from the remit of the normal criminal trial courts, the Constitution recognises that courts-martial are best equipped to fulfil this role. However, courts-martial are not exempt from a duty to abide by overarching constitutional values.”
Commodore Errington Shurland appeared as Amicus Curiae (friend of the court), providing expert insight into military law and practice.
For Harewood, the ruling marks the end of a lengthy legal battle. His lawyer, Vincent D Watson, successfully argued that the charges lacked the necessary specificity to allow for a proper defence.
The BDF, represented by Leslie F Haynes before he became Chief Justice of Barbados, Noah M Haynes, and Kashawn K Woods, had sought to uphold the court-martial conviction, arguing for the necessity of broad disciplinary powers within the military context.
While the CCJ’s ruling upholds the quashing of Harewood’s conviction, it also provides guidance for future military prosecutions. Justice Saunders noted: “Service men and women ought to readily appreciate what conduct would disrupt the efficient operation or morale of the armed forces. The prosecution must satisfy the court-martial that the accused person must have known or had reasonable cause to believe that the conduct in question was prejudicial to good order when it was engaged in.”
The case underscores the ongoing challenge of balancing military discipline with individual rights. As Justice Jamadar concluded: “The constitutional requirements of due process, the protection of the law, and fundamental fairness must be satisfied in the statement of the particulars of the offence, given the broad and general wording of the statutory offence.”
This landmark ruling emphasises the need for clear and specific charges even within the unique context of military discipline.
emmanueljoseph@barbadostoday.bb
