The Jeff Cumberbatch Column – Demonstrably Valid?
There will be time enough, I suppose, for more scholarly reflection on the implications of the decision earlier this week of the Caribbean Court of Justice on an appeal from Barbados where the ruling was that it is not permissible for a person charged with an offence to be convicted of that offence in circumstances where the only evidence against him is an unsigned and otherwise unacknowledged and uncorroborated confession which the prosecution allege was made to investigating police officers whilst in police custody but which he denies making.
According to the judgment, something more is required either in the way of independent verification that the admission was actually and voluntarily made, or in the way of other evidence that independently corroborates or otherwise points to the guilt of the accused. It is notorious that many criminal convictions in Barbados are based solely on these slender pieces of evidence, even though the existing legislation clearly contemplates that the voluntariness of confessions should be corroborated by stipulated technology.
Indeed, the failure to provide the necessary machinery for this circumstance, even though it was expressly commented on by MPs during debate on the measure, was the subject of trenchant criticism by Mr Justice Saunders who bewailed the delay in its implementation after two decades-
“Having enacted what at the time was modern, progressive legislation, a decision was made to suspend the critical sections of the Act that required sound-recording. The ostensible reason was that Barbados lacked the material resources to equip its police stations with the necessary recording devices. Over 20 years later, these sections of the Act remain suspended.”
This deficit in legislative implementation is not new. I have heard it said on more occasions than one that section 26 of our Constitution that serves to render pre-1966 legislation immune from Constitutional challenge on the basis of its contravention of any of the fundamental rights provisions was intended to be a mere holding provision until there could be an official determination of those pieces of legislation that were so implicated. Yet we recently celebrated our 50th anniversary of state sovereignty with that provision still firmly entrenched in place.
Whatever the scholarly commentary on the decision might be ultimately, at least one side the populist view has seemingly been already expressed in rather stentorian fashion, if there is any validity to press reports that the disturbance by gunfire in a certain suburban district one night this week might have been effectuated precisely for the purpose of approval of the consequences of the decision.
Of course, as in these matters, the populist reaction is not unanimous and, understandably, there are those who will view the decision as a backward step in an era where there is a prevalence of unlicensed firearms in the hands of aimless youths and while the unprovoked murder of a citizen going about her lawful business is still fresh in the civic mind. For some, therefore, the decision will be perceived more as a gratuitous sop to the criminal element and as a yet another hurdle in the way of the strict enforcement of the criminal law by the authorities.
Indeed, the recent calls by some members of the public for the official resumption of the execution of the death penalty, despite the clear unlikelihood of this ever again becoming an actuality under our current jurisprudence, demonstrates the degree of personal insecurity felt by the citizenry at this time.
Culpability for the current state of affairs identified in the CCJ decision must lie with those respective governing administrations that have remained content over the years to countenance the status quo of the validity of the confession remaining purely a question of fact; one whereby most juries would be disposed to believe the word of the investigating police officer over that of the accused prisoner as to the voluntariness of the confession and therefore to find the latter guilty as charged.
This blot on our criminal justice system would have inured to the benefit neither of the police officers who would have been subjected to populist suspicions of unconstitutional coercion as alleged by many accused persons nor to the fairness of the process itself whereby better and more cogent provision could have been made for determining the truth.
The political insult
The recently reported observation of former Prime Minister Owen Arthur in response to a critical comment from Sir Richard Cheltenham, a former BLP Cabinet colleague, that the latter’s words were akin to being “savaged by a sheep”, an expression that Mr Arthur has been reported as using with reference to a Freundel Stuart comment on a previous occasion in 2012, calls to mind, in particular, the similar, though even more trenchant, remark of the former British Labour Chancellor of the Exchequer in Dennis Healey, that being attacked by his Conservative counterpart, Geoffrey Howe, was “like being savaged by a dead sheep” and, in general, the witty nature of the political insult.
Sir Winston Churchill, no less sharp of tongue, once described Clement Atlee as “a sheep in sheep’s clothing”, and Healey himself once said of John Prescott that he had the face of a man who clubs baby seals” and of quondam Chancellor, Nigel Lawson, that his diet made him look like “death warmed up” Sometimes Healey was on the receiving end. The comedian Bob Monkhouse, on being informed by a headline that Healey had been caught with his pants down is reported to have averred, “That’s a pity. It will make it easier to hear what he is saying!”
Sharpness of political wit is not restricted to the British though. The Americans have been equally piquant in their ripostes. The gifted Mark Twain once wrote, “Reader, suppose you are an idiot. And suppose you were a member of Congress. But I repeat myself.” And one former Texas Commissioner of Agriculture was heard to declaim that if ignorance ever went to forty dollars a barrel, he wanted the drilling rights to the head of George Bush, the elder.
Some of our leaders over the years might also have found common ground with President Lyndon B Johnson who once claimed “being President was like a jackass in a hailstorm. There is nothing to do but to stand there and take it.”
The last word belongs to Healey. Dame Margaret Thatcher might have had many fans during her prime ministerial tenure. Not Healey, though. He is said to have described Thatcher and her Cabinet as “A raving hag surrounded by ministers fighting each other like weasels in a sack”.