The Jeff Cumberbatch Column – Obstructing the Police?

The offence of obstructing a police officer in the execution of his duty is a general intent offence.  The Crown must prove the actus reus which involves:  (i) conduct that constitutes an obstruction (ii) to a peace officer (iii) who was engaged in the execution of his duty at the time.  The mens rea element requires the Crown to prove the obstruction was done wilfully.  In other words, the conduct proscribed is conduct that was intended to obstruct the individual officer in question in the execution of his duty at the time: R v Moore [1979] 1 S.C.R. 195

Understandably, the print media have been consumed in recent days with the ongoing campaigns of the many parties and candidates in the elections scheduled for this Thursday. But I have already mused on this in my two most recent columns and consider it far more prudent this week to focus on another matter of perhaps only slightly less significant concern to the rights of the citizen.

Many would have “steupsed” instinctively when Magistrate, the reverend Graveney Bannister, suggested recently that those who filmed policeman in the execution of their duty should be prosecuted. After all, some might have reasoned, would this not be at least a disproportionate response to a purported exercise of the guaranteed freedom of expression that includes, according to section 20 of the Constitution, “the freedom to communicate ideas and information without interference”?

And while it is recognized that this freedom may be derogated from in the public interests of defence, safety, order, morality or health, it is also stipulated that any such restriction should be reasonably required. This entails that there must be a legitimate aim for the measure, the measure must be suitable to achieve the aim (potentially with a requirement of evidence to show it will have that effect), the measure must be necessary to achieve the aim, that there cannot be any less onerous way of doing it, and the measure must be reasonable, considering the competing interests of different groups at hand. I am not at all certain that a law as suggested by Mr. Bannister will easily pass these tests.

Some counter-reaction to the magisterial suggestion came subsequently with an offer of BDS$1000 and free legal representation from a local attorney to anyone that may prosecuted for such an offence. However, it was the midweek statement from the Commissioner of Police on the issue that is likely to arouse the greatest civic interest on this issue so far.

As the Commissioner rightly noted, there is no crime committed to record an incident involving the police, although to be fair to Bannister, I do not get the impression that he was contending the contrary but rather suggesting that it ought to be an offence. The Commissioner, however, went on to warn, again quite rightly, “But if in so doing, an act resulting in [willful] obstruction of the officer in the execution of his duties occurs, this will result in an offence…”

I do not know if the Commissioner is aware, but the connection between obstructing an officer in the execution of his or her duty and the photographing or video-recording of an incident involving the police is one of the more intriguing global legal issues today, owed substantially to the notoriety of the police treatment of blackish individuals in the US. Moreover, the Commissioner’s words might have, perhaps inadvertently, lent some authority to the earlier suggestion by the learned Magistrate.

Locally, the offence of obstruction is covered by section 62 of the Police Act, Cap 167, which provides for a penalty of $1000 or imprisonment for a period of 12 months on summary conviction, although it also empowers the magistrate, if he or she is of the opinion that the matter is fit for prosecution on indictment, to commit the offender to stand trial in the High Court.

That much is clear, but the jurisprudence, whether from the US or the Europe, does not afford similar certainty. This is, in my view, a consequence of a number of factors surrounding obstruction by this method, including the citizen’s right to freedom of expression; the need for the police to be able to conduct unhindered investigations of crime and arrests of offenders; and the doubtful legitimacy of an expectation of privacy in public spaces. As for the first, while there are some decisions that have stressed the overarching importance of the freedom of expression to the democratic ideal, there are others that have subordinated it to the prevention of crime.

Thus, one judge in Austin, Texas, was of the view that the individual’s right to record incidents that occurred in public was well established- “If a person has the right to assemble in a public place, receive information on a matter of public concern, and make a record of that information for the purpose of disseminating that information, the ability to make photographic or video recording of that information is simply not a new right or a revolutionary expansion of a historical right. Instead, the photographic or video recording of public information is only a more modern and efficient method of exercising a clearly established right.”

And the majority of the Third Circuit Court of Appeals was of like mind in Fields v City of Philadelphia-

“We ask much of our police. They can be our shelter from the storm. Yet officers are public officials carrying out public functions, and the First Amendment requires them to bear bystanders recording their actions. This is vital to promote the access that fosters free discussion of governmental actions, especially when that discussion benefits not only citizens but the officers themselves.”

Hugh Tomlinson QC, writing in the Guardian, in an article entitled “Do we have a fundamental right to film the police in public?” refers to the Metropolitan Police’s statement that “Members of the public and the media do not need a permit to film or photograph in public places and police have no power to stop them filming or photographing incidents or police personnel” and recites the words of the US First Circuit Court of Appeals to the following effect- “A citizen’s right to film government officials, including law enforcement officers, in the discharge of their duties in a public space is a basic vital and well-established liberty safeguarded by the First Amendment.”

The position in Europe is apparently less accommodating to the citizen. In Pentikäinen v Finland (2015), the European Court of Human Rights (ECHR) merely stated in general terms that the presence of “watchdogs” during the policing of a demonstration is a guarantee that the authorities can be held to account. This has seemingly allowed the jurisdictions to vary in their national approaches. In Spain, the Citizen Security Law 2015 threatens a hefty fine for the unauthorized publication and dissemination of images of the police and in Belgium one video-blogger was fined £300 for filming and uploading two police officers’ response to an incident at a café, which in the court’s view, violated their privacy. Likewise, the lower House of the Dutch parliament recently adopted a motion calling for a change in the law that would result in the prohibition of the publication of recognizable images of police officers.

Whatever will be the response of the local courts to a charge of obstruction of the police by recording the incident of an arrest or other action, given the perceived credibility gap between the word of the officer and that of the citizen, it would be wise for citizens to err on the side of caution. Obstruction of an officer in the execution of his duty is a mixed question of law and fact and while there may be no obstruction if the officer is not in lawful execution of his duty, his sworn assertion that he was in fact being obstructed in his duty is likely to be treated as cogent evidence that he was.

120 comments

  • All students of legal theory should be trained in all global dominant legal systems. I am not a lawyer, but out of curiosity still read about legal systems around the world.

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  • @Dee Word

    What are you saying- an IBC incorporated in Barbados for example must agree to have its legal matters arbitrated in another country?

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  • de pedantic Dribbler

    Mr Blogmaster, re “The Hague – an IBC incorporated in Barbados for example must agree to have its legal matters arbitrated in another country?”

    Your query has me perplexed? Is that not EXACTLY the argument you and Gabriel ARE making re Privy Council? The Judicial Committee of the Privy Council is domiciled in another country other than Barbados, is it not!

    Pray tell the distinction therefore to have a final court arbitratrate a business dispute in the Hague for said IBC incorporated and operating in BIM.

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  • de pedantic Dribbler

    Oopss…excuse the error in cut and pasting…that first sentence should read of course: Mr Blogmaster, re “What are you saying- an IBC incorporated in Barbados for example must agree to have its legal matters arbitrated in another country?”…..

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  • @Dee Word

    It is a simple point being made, if the Privy Council were to be deemed the final court of Barbados our laws would reflect no? Would you consider it a foreign Court in such a scenario?

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  • de pedantic Dribbler

    David, you are a good debater…you extend the moot a few feet everytime the space closes 😁!

    My answer to your query is no, of course. As you suggest, it being part of the local jurisprudence then for all intents and purposes it’s part of the ‘local’ judicial system.

    But I ask, oh master debater, isn’t the international Court of Justice (or should i defer and say some key innternatioal courts) not considered part of local judicial system for purposes of commercial and other disputes between states?

    So why if an IBC contracts in BIM and agrees with the Bajan entities with whom it’s contracted and the Govt that it will use one of those other foreign based bodies to resolve matters is that body not local too?

    If I follow your reasoning it is indeed a simple answer to your simple point… QED applies in both instances as part of the law of the land!

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  • pieceuhderockyeahright

    @ Dunks Gripe

    While we ole man does not agree with 3 of your 4 points posited earlier there is one I do endorse

    You said and I quote “The urgent sitting of CCJ on a Sunday to “order” Barbados to allow foreigners to vote in national elections puzzled even more…”

    There are two sides to every debate your side my side and the truth.

    Obviously de ole man can’t count but…

    It becomes obvious to the observing eye that a specific person on the CCJ was leveraged to meet on this matter notwithstanding the outcome

    That brings us back to the issue of corruption and insider manipulation which irrespective of the purported expertise of the CCJ is now tainted by these acts

    Having said that the fiasco just goes to show how slothful of foot Fumbles and Miami Vice Johnson are with this opportunity to FURTHER PAD THE VOTERS LIST WITH ELIGIBLE CARICOM CITIZENS whom the contesting parties cannot gainsay them being appended to the list

    So Ventose and party may have introduced the veritable Trojan horse

    Steupseee

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  • pieceuhderockyeahright

    @The Honourable Blogmaster Your assistance please

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  • @Gabriel
    May 21, 2018 9:20 AM

    If perchance Stuart has his way with the CCJ,we can say goodbye to foreign investment.No investor will risk litigation in a court of political appointees bereft of balanced thinking.

    Foreign investors long ago were frightened off by crooked lawyers and the court process. The island is missing out on a $200 million hotel investment from a willing but terrified foreign investor. Suffocating red tape manipulated by immoral lawyers are the biggest stumbling block to FDI not Stuart telling the CCJ to screw off for insulting our sovereign nation.

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  • What $200 million foreign investment what.You mean another swipe at the NIS funds.

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  • Piece you said

    -So Ventose and party may have introduced the veritable Trojan horse-

    This is where the balls Tom Adams willed to this generation became droopy. Venttose or F%#ktose and party would receive swift kicks in the rear from Jon Michael Geoffrey Manningham. They’d be on the first outbound flight. Any CCJ law suit would have to come from offshore. Our peaceful life would resume in short order. Ask ralph.

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  • David Commissiong

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  • @ David BU,

    I thought Commissiong was the leader of the PEP. He sound more like a leader of the BLP.

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  • @ David BU,

    What influence do you think David Commissiong will have on the policies of the BLP ?

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  • Jeff Cumberbatch

    @Jeff

    Is it an accurate perspective to take that justices at the CCJ must be competitive to interpret laws outside of the Commonwealth given the make up of Caricom? If yes this puts Bajan applicants with a narrow bio at a disadvantage?

    @ David, not really, there is a spot reserved for a judge familiar with Dutch law, currently filled by Justice Wit for Surinam.

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  • millertheanunnaki

    @ David May 21, 2018 11:30 AM

    What Jeff can also shed some light on are the possible ramifications which can ensue from Stuart’s intention to remove Barbados from the jurisdiction of the CCJ.

    Would Barbados be extricating itself from only the Appellate jurisdiction of the CCJ or would it be a full and clean break from the CCJ to be called the “BAR-EXIT”?

    Additionally what implications would there be for the Revised Treaty of Chaguaramas if Barbados just ‘pull stumps and leave’ the CCJ should Stuart by some rare alignment of evil with misfortune is returned as the PM of Barbados?

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  • Correction, not ‘competitive’ should be competent.

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  • Well Well & Cut N' Paste At Your Service

    Fruendolittle turned out to be the dumbest, most destructive shakespeare quoting lawyer/politician through a quirk of karma/fate, to fall into the people’s parliament….he highlights all that is wrong in the colonized nonfunctional mind of the black male who has never known himself and remains unconscious, useless to his own people.

    Bad enough for the people he became pm to begin with, even worse to end up as pm again in 2013, the island needs a permanent break from him and his gang.

    Not one seat.

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  • pieceuhderockyeahright

    @ The Luminary Jeff Cumberbatch

    De Ole Man hath been chomping at the bait for some months now waiting for the right opportunity to ask this question of you

    I, whom am known as an accomplished internet teif, do here and now verily rely on another such excerpt as the central topic for said question

    “Election silence, pre-election silence, electoral silence, or campaign silence is a ban on political campaigning prior to a …general election. … Barbados…”

    De ole man would have inserted one of my Stoopid Cartoons here to emphasize that point but because of my respect for you (it has in the RH bad word albeit an acronym) I did not add it

    This article tangentially speaks to obstructing the police so de ole man was in a frame of mind as it related to

    (1) virtual advertising which the internet affords for such campaign ads as the Stoopid Cartoons

    And

    (2) SMS texts that can originate anywhere in the world AND AGAINST WHICH THERE IS NO MECHANISM TO DEFEAT

    BARRING THE INTERNET BLOCKAGE THAT THE DLP WILL BE EMPLOYING TOMORROW

    But back to my two part question

    Is there any law which debars internet campaigning which our archaic laws can legally enforce heheheheh and given the virtual nature and “originations” of this intangible phenomenon do you think that any current or future administration can legislate electioneering silence for the internet?

    I do beg thine indulgence for one more query notwithstanding only asking for two

    Who can be prosecuted for this potential virtual crime if say Party A, knowing that virtual dissemination of electioneering materials is a crime after 12 pm, continued to disseminate material that is Party B’s with the intention to incriminate party B?

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  • pieceuhderockyeahright

    @ The Honourable Blogmaster your assistance please with an item

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