COMMENTARY: Criminal Investigators – Dangerous Investigative Trend

by Rawlston Pompey

In recent times, law enforcers appear to have indulged themselves in a practice that appears fraught with danger. Such danger is often posed to the liberty of citizens, alleged by ‘Third Parties’ of running afoul of the law. The most vexing has been cases involving issues of consensual and non-consensual sexual escapades. Then either by physical presence, acquaintanceship, companionship or association, many have been implicated in sexual acts of, or bordering criminality.

PERSPECTIVE

This commentary looks at the culture and behavior of the modern Police officer. Secondly,’ it seeks to put into perspective, a particular disturbing trend that seems far removed from professional law enforcement training and practice. Thirdly, it looks at a rather peculiar ‘Telegraphic Media Release.’ That which shall be told, is that earlier law enforcement training sought to impress upon the minds of law enforcers, is that deprivation of personal liberty by effecting ‘Arrest or Detention,’ shall; (i) ‘…Not be treated punitively or acrimoniously; and (ii) …Shall always show legal justification,’ particularly as it affects ‘Third Party Allegations or Charge of a Third Person.’ In these Cases, Crown Prosecutors have been constantly challenged for ‘Corroborative Evidence.’

SURROGATE ACCUSERS/WITNESSES

Likened to members of the wider society, there are those in Law enforcement that are vulnerable to environmental influences. Then there are those for reasons of docility often display gross stupidity. Likened to women that have reportedly contracted their womb for childbearing for those lacking fertility necessary to be impregnated, there are persons ever willing to be used, either as ‘Surrogate Accusers’ or ‘Surrogate Witnesses.’ Criminal investigators shall know that lest they are deceived or fooled by sentimentality, they shall always be alert to persons making ‘Third Party Allegations’ that may not only beg for truth, but also ‘Corroborative Evidence.’

TREACHEROUS AND DANGEROUS

Humans, well known for their ‘Vulnerability, Exploitability and Docility,’ were often used to entrap the unsuspecting. Thus, likened to people reportedly afflicted with underlying health conditions, and said to be vulnerable to the ‘Covid-19 Pandemic,’ so too are minions ‘Positioned for Exploitation.’ They are as ‘Treacherous,’ as they are ‘Dangerous.’ That which might also be said, is that law enforcers are not exception. Facts be presented, the overwhelming majority are guided by professional training, knowledge, the law and ‘Dictates of Reason and Conscience.’

CULTURAL PROCLIVITY

Not infrequently, without conducting formal investigation and criminal investigators have no ‘Reasonable Grounds’ for suspecting a person of committing a criminal act, many were reported to have been unlawfully deprived of their personal liberty. Not infrequently, persons were asked to visit Police precincts, only to be subsequently caged in an overcrowded Cell of detainees. Relating harbored fears and concerns or premonitions of embattled ‘Member of Parliament Asot Michael,’ and recent allegations made by a ‘Third Party’ and ‘Releases’ to the media with hope and ‘prosecutorial expectations’ [ANR: December 10, 2021], he may have been given ‘Treacherous Reasons’ to believe in what appears to have been a developed ‘Cultural Proclivity’ within the national Police Service.

CHARGE OF THIRD PERSON

From the expressed views of many criminal suspects and law-abiding citizens, this has not only been particularly troubling, but also vexatious to the human spirit. Invariably, the very nature, explanation and theorized motive, demands thorough, skillful and careful investigation. That which suspects have found disconcerting, has been a clearly misguided practice by criminal investigators by ‘Arresting and Charging’ suspects, and investigating after. The Cases of; (i) ‘…Prime Minister Dr. Ralph Gonsalves; and (ii) …Former Education Minister Michael Browne’ are just among many other Cases that have been the result of ‘On Charge of a Third Person.’ These Cases have suffered prosecutorial or judicial consequences.

PROSECUTORIAL POSITION

Early in his prosecutorial tenure, ’Director of Public Prosecutions (DPP), Anthony Armstrong’ had taken the ‘Prosecutorial Position’ that criminal investigators shall, at all material times ensure that there is overwhelming ‘Prima Facie Evidence’ necessary to establish a ‘Prima Facie Case.’ This came in the wake of the heinous criminal act that resulted in the ‘Unsolved Murder’ of a ‘young, innocent and defenceless 10-year-old TN Kirnon student, Jemuel Samuel’ [Islandmix: June 27, 2006]. Hasty police ‘Detention and Arrest’ of a 12-year-old male student, languished on prison remand for some 9 months. There was no bail and no trial. Fortunately, the lack of ‘Prima Facie Evidence,’ required to bring the accused to trial and justice, appeared to have been far from the reach of criminal investigators.

PROTECTION AND REDRESS

Instructively, the ‘Constitution Order’[No. 1106], anticipates abuses by the improper exercise of ‘Police powers.’ Thus, it was clearly for such reasons that framers inserted a most important ‘Clause for Protection and Redress.’ Mistake-prone officers shall be encouraged to familiarize themselves with this sometimes costly ‘Liberty Protection Clause.’ The ‘Clause’ unambiguously states: ‘…Any person who is unlawfully arrested or detained by any other person, shall, subject to such defences as may be provided by law, be entitled to compensation for such unlawful arrest or detention from the person who made the arrest or detention from any person or authority on whose behalf the person making the arrest or detention was acting or from both’ [CO: 1981: Section 5 (7)].

PRESUMPTION OF INNOCENCE

This may have been attributable to lack of procedural compliance or guidance. Such has seen: (i) ‘…Suspects being detained with regularity, even before a victim/virtual complainants and witness statements have been recorded: (ii) …Before investigators availed themselves time to develop reasonable suspicion: and (iii) …Without suspects being accorded the right of consultation with an attorney or given the benefit of the constitutional right of the ‘Presumption of Innocence’ [CO: 1981: Section 15 (2) (a)]. The recent experience of ‘Kevin Samuel’ that a misguided ‘Wanted Police Bulletin’ in which criminal investigators appeared to have harbored the erroneous belief, that he possessed ‘…useful information to further assist them in certain investigation.’

INVESTIGATIVE PRACTICE

. As luck often had it, he and another ‘Wanted Suspect’ were released from detention without charge [CO: 1981: Section 5 (5) (b)]. In search of ‘Prima Facie Evidence,’ they were detained for 48 hours [ANR: December 5, 2021]. Suffering the indignity of being caged in a ‘Detention Cell,’ this has not only vividly made evident the assertion of deprivation of liberty, but also the development of a disturbing and disconcerting ‘Investigative Practice’ on the part of some criminal investigators. Though not necessarily, trigger-happy, it clearly suggested behaviors obtained in some jurisdictions by ‘overzealous cops.’ They were often accused of exhibiting roguish, brutish and unprofessional behaviors and lewd discourse.

DRAMA AND BAD PUBLICITY

Invariably, in disciplinary organizations, some exhibited behaviors were borne out of professional ignorance, errancy and sheer human stupidity. There are those, for reasons of want of professional guidance and strict supervision, were often seen as savoring the moment for ‘Drama and Bad Publicity.’ Consequently, and irrespective of disciplinary consequences, these individuals appear always ever ready to do the unthinkable or say the unexpected. This may have been manifested when there was the apparent casual use of ‘Pussy Language’ in a ‘Voice Message,’ This has been circulated on social media, thereby generated wide and negative public discussions.

‘PUSSY’ REPORTING COP

The context in which it reported and the expressions used, clearly showed discipline, command and control.’ This was said to have been a Police officer’ reporting the ‘State of affairs’ to a ‘Superior officer.’ In the ‘Chain of Command,’ a time immemorial reporting procedure has been established. Thus, ‘Subordinates’ are required to report to Superiors. From a professional perspective, such lewd and callous way of reporting is suggestive of several possibilities: (i) ‘…Breakdown in discipline; (ii) …Over familiarity that often leads to lack of respect for supervisory authority: and (iii) …Signals scant or total disregard to organizational discipline.’

PUBLIC TRUST AND CONFIDENCE

More vexing, has been the circulation on social media of that which was officially reported. Such not only has ‘Serious Implications’ for disciplinary action being instituted against both officers, but also consequences for ‘Public Trust and Confidence.’ These are critical to the reputation of the Police Service. It may have been for these reasons and exhibition of good discipline by word or conduct that the ‘Police Disciplinary Regulations’ have been formulated. While the ‘Disciplinary Code’ speaks to ‘Discreditable Conduct,’ it also speaks to ‘Breach of Confidence.’ Such is explained hereunder.

BREACH OFPOLICE DISCIPLINE

Therefore, given the need to ensure compliance to the ‘Police Discipline Regulations’ and to maintain ‘Force Discipline,’ a Commissioner of Police and superior officers would be considered grossly reckless not to remind themselves to be familiar with particularities contained in these Regulations. Consequent upon that which has been reportedly emerged, those with authoritative powers may wish to visit the Regulations that clearly states; (i) ‘…If a member of the Force divulges any matter which is his duty to keep secret; or (ii) …Without proper authority communicates to the public press or to any unauthorized person, any matter connected to the Force’ commits a breach of discipline’ [Police Discipline: Chapter 330: Paragraphs (f) (1 and 3)].

PRINCIPLES OF DEMOCRACY

Even as human civilization improves and the ‘Principles of Democracy’ are constantly preached, there appears to be more breaches to the ‘Fundamental Rights and Freedoms’ of the Individual,’ than that being preached. As it affects ‘Law Enforcement,’ this has been a universal phenomenon. As far as restraining a liberty is concerned, the properly trained law enforcement officers have been constantly instructed that with or without Warrant, there are three foundations on which an arrest or detention may be made. These, the ‘National Law Enforcement Training Manual’ refers to as: (i) ‘…On view: (ii) …Reasonable suspicion: and (iii) …On the Charge of a Third Person.’

IGNORED PROCEDURE

It has been the latter of these foundations that seemed to have been religiously ignored. Moreover, the ignored procedure has not only been seen as a threat to citizen’s liberty, but also to public confidence, cooperation, respect and support in the fight against crime and violence. Thus, such evidence shall, on its own, speak to its credibility and irrefutability, and more particularly the veracity and character of the source/s. Speaking to the ‘Charge of Third Person,’ this legal term speaks to specific situations that are not within the personal knowledge of any law enforcement personnel. That is to say, where an officer had not in actuality witnessed the commission of a crime.

THIRD PARTY ALLEGATIONS

Those that have conceptualized the term ‘Charge of a Third Person,’ appeared to have been aware of the propensity of humans to create and make mischief and/or spurious or baseless allegations. This term has been classified as ‘Third Party Allegations.’ It has been the professional knowledge and experience that overwhelming evidence often guides determination of the appropriate criminal charges and successful prosecutions. With some degree of insistency, very strong on these points, has been ‘Director of Public Prosecutions (DPP), Anthony Armstrong.’

CHARGE OF THIRD PERSON

For the procedural guidance of criminal investigators, those conceptualized and coined the term, ‘Charge of A Third Person,’ prudently and purposefully inserted such clause to aid unbiased criminal investigation, non-judgmental and rational decision-making. Such ‘Charge’ is simply where a person: (a) ‘…Makes a Complaint: or (b) …Report: or (c) …By a third party making an allegation’ that an identifiable or non-identifiable person, perpetrated a criminal act against him/her.’ Conversely, for an understanding or academic interest, ‘Prima Facie Evidence’ is simply evidence on the ‘face’ of which, suggests the involvement of a suspect in the alleged crime. Law enforcement training guides non-hasty and non-contemplative ‘Detention or Arrest,’ particularly, when the ‘Charge’ appears not ‘Well-Founded.’

FRAUGHT WITH DANGER

While the legal term ‘Charge of A Third Person’ has its place within the Judiciary, it is one that is ‘Fraught with Danger.’ This is particularly so for those victimized by criminals. The danger so posed has to do with the determination of ‘Crown Prosecutors’ in engaging the attention of a ‘Jury.’ From this perspective, they shall make final ‘Prosecutorial Determinations.’ They shall be satisfied that there is; (i) ‘…Sufficiency of evidence prosecutorally necessary to establish a prima facie case; and (ii) …There is reasonable prospect of conviction.’

CORROBORATIVE EVIDENCE

Therefore, whatever the criminal nature or gravity of the third party ‘…Complaint: …Report: or …Allegation,’ these shall not only be promptly dealt with, but also thoroughly investigated. This is not only of vital importance, but shall also be evidentially substantiated in moving to the prosecutorial stage. Therefore, where ‘Corroborative Evidence’ is so critical in ‘Third Party Allegations,’ in some material particular, such shall be independently corroborated. The private/criminal alleged sexual molestation instituted by a female police officer against a ‘Regional Prime Minister’ makes the point…

PROSECUTORIAL INTENT/PURPOSES

To all ‘Prosecutorial Intent and Purposes,’ exercising powers constitutionally vested in his office, then ‘Director of Public Prosecution (DPP) Collin Williams’ (now His Lordship within the Eastern Caribbean Supreme Court (ECSC) not only took over the proceedings, but also discontinued the matter before advancement to the ‘Preliminary Inquiry’ stage. A regional news portal reported the ‘DPP’ as saying that; ‘…The allegation raised would not have been able to stand in a Court of law, and consequently dismissed the matter’ [SKBVibes: September 23, 2008].

DECISION TO DROP CHARGE

The case, instituted by the 36-year-old female Police Officer, victim and virtual complainant, was one filed by her attorney on the basis of a ‘Third Party Allegation.’ As factual as some incidents may be, the lack of ‘Corroborative Evidence,’ often posed grave prosecutorial difficulties. The said news portal reported that ‘…PM Gonsalves fervidly denied the charge.’ Stating further, he reportedly said that; ‘…It was merely an attempt by his opponents to damage him politically and discredit him.’ Another news portal quoted the ironical response to media questions by the ‘DPP.’ as saying that the ‘Decision to Drop’ the matter was ‘…In the best of justice’ [Jamaica Gleaner: February 5, 2006]. Yet another quoted the ‘DPP’ as saying ‘…The claim was groundless, and lacked medical or genetic evidence’ [Jamaica Observer: February 6, 2008].

MERE ALLEGATIONS

Today, ‘Mere Allegations,’ seem to have befuddled the investigative mind. Invariably, criminal investigators appear to have been led to believe that suspects of whatever class or status, have committed the criminal acts alleged by ‘Third Parties.’ Thus, such allegations and such belief often provide the basis for immediate ‘Arrest or Detention’ before the investigative process produces ‘Prima Facie Evidence.’ The ‘Well-Founded Charge’ shall be so well grounded that it creates no doubt whether or not to restrain the liberty of a suspect. In such case, the evidence shall inform the astute criminal investigator in making well-informed professionally-guided decisions.

LIBERTY v TYRANNY

In researching for this commentary, the most unlikely bit of information has emerged on social media. In speaking to such information, it brought to mind this quote: ‘…When Government fears the people, there is ‘Liberty.’ Conversely, it has also been said that ‘…When the people fear Government, there is ‘Tyranny’ [Thomas Jefferson: 3^rd US President: 1801-1809]. In most democracies, there is a bit of both. That which is to be developed is the headlined news story that states: ‘…Response by the Government to the false claim being spread by Mr. Asot Michael’ [ANR: December 10, 2021]. It is evident that such response was made to an alleged offender in the personal capacity of an ordinary citizen. This appears opposed to his ‘Parliamentary Membership.’

MOST DAMNING – MOST TROUBLING

That which appears ‘Most Damning,’ is part of the contents that clearly and factually states: ‘…This is not the first time that Mr. Michael has been accused of sexual violations, involving our youth.’ This clearly suggests serious litigious implications for ‘Diminution of Character.’ Then there appears to be the ‘Most Troubling’ statement publicly directed for the attention of ‘Commissioner of Police Atlee Rodney QPM’ and ‘State Prosecutor Director of Public Prosecutions (DPP), Anthony Armstrong.’

CALLOUS – RECKLESS AND PURPOSEFUL

In private conversations, some legal luminaries have not only drawn reasonable inferences, but also asserted that the unidentified author/s, have impliedly telegraphed a very ‘Callous: …Reckless: and Purposeful’ message through the ‘Media Release.’ It unambiguously states: ‘…My Government expects the Police and prosecuting authorities to do all they can within the law to protect our youth from sexual predators and to ensure that the perpetrators are brought to justice’ [ANR: December 10, 2021: Paragraph 2]. Holders of these offices shall know that they shall not be cowed under any kind of pressure. Thus, in the performance of their respective duties, even as they face the possibility of ‘direct or indirect’ exploitation, they shall not be influenced, neither by the environment nor by extraneous matters.

CLARITY OF UNDERSTANDING

Given the expectations contained in the ‘Release’ to the media [ANR: December 5, 2021], for the avoidance of doubt and ‘Clarity of Understanding,’ Lord Denning’s dicta clearly states:  ‘…The Commissioner of Police is responsible to the law and the law alone’ [1968: Regina v Metropolitan Police Commissioner Raymond Blackburn ex parte:2 QB: 118: 134-136]. The Cases of: (i) ‘…APC v APUA [2013: UKPC: 23: No. 0063 of 2012]: and (ii) …Attorney General v Steadroy ‘Cutie’ Benjamin’ [2014: UKPC 8: No. 0083 of 2011], also make the point.

MINISTER OF CROWN AND POLICE AUTHORITY

From professional learning, procedural knowledge and settled law, prominent ‘British Jurist  and Master of the Roll, Lord Alfred Thompson ‘Tom’ Denning’ has made it sufficiently clear for every practicing attorney, including the well-learned ‘Samantha Marshall’ and well-read ‘Student of American Law, Lionel ‘Max’ Hurst’ that they may further apprise themselves that his dicta states: (a) ‘…No Minister of the Crown: and (b) …No Police authority’ shall dictate to a Commissioner of Police anywhere within the ‘British Commonwealth,’ including this democracy, how he/she may perform his ‘Law enforcement Duties.’

CONSTITUTIONAL POSITION OF DPP

Then for ‘Prosecuting authorities,’ every practicing attorney and every ‘half baked’ student of law, may have been considered reckless not to have exhibited familiarity with the ‘Constitutional Position of the Director of Public Prosecutions (DPP). For ease of reference, citizens only need to visit the ‘Constitution Order of Antigua and Barbuda’ [CO: 981: No.1106]. With some degree of ‘pellucidness’ [Sir Lester Bryant Bird KNH], it provides unfettered powers to the office holder.’ It states: ‘…The powers conferred on the Director of Public Prosecutions shall be vested in him to the ‘EXCLUSION’ of any other person or authority’ [Section 88 (2)]. Even with loose or gallery talk,’ likened to the ‘Lord’s Anointed,’ none may also touch the ‘Constitutionally Appointed.’

LITIGIOUS ASSERTIONS

That which all students of law shall know, is that which the ‘Constitution Order’ provides for the office of ‘Attorney General.’ Thus, they shall familiar themselves with the Section that states; ‘…There shall be an Attorney General of Antigua and Barbuda.’ Moreover, they shall know that the constitutional position of the holder of such office is that he/she shall be; ‘…The principal legal adviser to the Government’ [Section 82 (1)]. Such ‘Legal Adviser’ will have been considered grossly reckless to have advised and/or authored a ‘Media Release,’ that seemed pregnant with ‘Litigious Assertions.’ On the contrary, where there may have been no legal input or scrutiny, not only an Attorney General would be placed in an invidious position, but also forced to defend the indefensible.

LEGAL ADVICE TO GOVERNMENT

Even as the ‘Media Release’ refers to ‘My Government,’ its content and construct speak to an author that has scant regard for the ‘Ministry of Justice and Legal Affairs.’ Except so sanctioned, including the Cabinet, not may offer ‘Legal Advice’ to the Government. With a legal practice of longevity, such Release may never have escaped the attention of ‘Attorney General and Justice and Legal Affairs Minister, Steadroy Cutie’ Benjamin.’ Without trepidation or contradiction, with his legal knowledge and familiarity with the ‘Constitution,’ one may assert that such ‘Media Release,’ appeared to have been starved of his expertise, authorship and ministerial scrutiny.

INSULTS TO INJURY

Many in other jurisdictions have been frequently accused of shooting suspects, then asked the fearful law-abiding citizens questions of incidents outside their personal knowledge. The apparent investigative tendency has often been compounded by the ‘Adding more Insults to Injury.’ It is to the knowledge of many persons, and not the least the ‘Magistracy and office of Crown Prosecutors,’ that before martialing evidence, suspects are hastily and prematurely arrested and charged with criminal offences, while investigations were said to be in progress. The Case involving the brazen daylight kidnapping and cold-blooded murder of former Customs officer ‘Nigel Christian,’ from his Mc Kinnon residence, by four men, makes the point [July 10, 2020].

UNAVAILABILITY OF CASE FILES

Then there has been the vexed issue of ‘Unavailability of Case Files.’ It is to public knowledge that invariably, ‘Police Court Prosecutors’ have been awkwardly placed to inform Magistrates that the criminal investigation has been incomplete and that they possessed ‘No Case Files.’ While some accused persons continued to languish on remand in jail, others with the ability to secure bail, continue to face inordinate trial delays.

CONCLUSION

Finally, as it relates to ‘Third Party Allegations or on Charge of a Third Person,’ acute prosecutorial consideration shall always be given to the evidence obtained. Therefore, criminal investigators shall be guided by ‘Criminal Evidence and Procedure’ and that contained in the ‘Judges Rules.’ Moreover, ‘Arresting officers’ shall inform themselves ‘that the Law merely permits an arrest when ‘Power to Arrest’ is statutorily provided. They shall also know that among the considerations for arrest are: (i) ‘…The gravity of the charge, and increased likelihood of absconding: (ii) …In the interest and protection of the suspected person from potential physical or moral danger: (iii) …The interest of the public in removing a danger from the citizenry; (iv) …Preventing suspects from defeating the ends of justice; i.e. providing opportunities to dispose of evidence- stolen property or warning accomplices; (v) …To obtain evidence where the possibility exists that stolen property is concealed: (vi) …Where a Summons would be ineffectual: and (vii) …Where there is need for Corroboration.’ This relates to the physical condition of suspects.  ***

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