The Right to Counsel
It seems fitting with the passing with Amused we should feature today’ Barbados Advocate editorial (23/12/2016) – Barbados Underground
The acting Commissioner of the Royal Barbados Police Force has recently had cause to remind his officers that the organization does not condone denying lawyers access to clients held in custody. He might also have told them that this is not at all an attorney right exclusively, as might appear from his quoted statement, but also a guaranteed constitutional right of the accused client who is in custody.
According to section 13 (2) of the Barbados Constitution:
Any person who is arrested or detained shall be informed as soon as reasonably practicable, in a language that he understands, of the reasons for his arrest or detention and shall be permitted, at his own expense, to retain and instruct without delay a legal adviser of his own choice, being a person entitled to practise in Barbados as an attorney-at-law, and to hold private communication with him; and in the case of a person who has not attained the age of sixteen years he shall also be afforded a reasonable opportunity for communication with his parent or guardian.
The Commissioner’s reminder came in response to an allegation from an attorney, Mr Mohia Ma’at who complained that he had been made to spend at least two hours in a police station waiting to see a client “assisting the police with their investigations” into a charge of murder, but was never afforded the opportunity to do so.
The content of this right to legal representation was examined by the Judicial Committee of the Privy Council in 1991 in the case of The Attorney General of Trinidad & Tobago v Wayne Whiteman. In that case, the Board was called upon to determine as a preliminary point of law, whether a person, upon arrest and detention by the police, had a constitutional right to retain and instruct without delay a legal adviser of his or her choice and to hold communication with him; an issue that had been answered in the negative by the judge at first instance.
The Committee, in a unanimous judgment, decided that the express provisions off the 1976 Constitution of Trinidad & Tobago did indeed protect those rights of the detained individual. Further, that the obligation of the state “not to deprive a person of the right to such procedural provisions as are necessary for the purpose of giving effect to those rights”, a provision not present in the Barbadian constitutional text, entailed a requirement that provision be made for informing the arrested and detained person of that that right.
Their Lordships went on to endorse the statement of one of the judges in the Court of Appeal that “I am not prepared to lay down any general rule as to the precise point in time when a person in custody ought to be informed of this right, [but it should be] as early as possible, and in any event before any ‘in-custody interrogation’ takes place.’’
And they suggested:“…it is incumbent upon police officers to see that the arrested person is informed of his right in such a way that he understands it. He may be illiterate, deaf, or unfamiliar with the language. It is plain that the mere exhibition of notices in the police station is insufficient in itself to convey the necessary information.”
Given the clear statement of the Caribbean Court of Justice that it is prepared to follow decisions of the Judicial Committee unless persuaded to the contrary and the obligation of the state to give substance to the guaranteed rights, this decision should serve as an instruction to our police officers if the constitutional right of the citizen is to be upheld.