Wednesday 12 August, 2020

Bar Association President corrects Desir on bail

Renee St Rose, President of the Bar Association of Saint Lucia

Renee St Rose, President of the Bar Association of Saint Lucia

Renee St Rose, president of the Bar Association of Saint Lucia released a statement today correcting the Commissioner of Police on the exercise of police powers to grant bail.

On Tuesday, June 16, 2020, Commissioner of Police (Acting) Milton Desir appeared on the NTN COVID-19 Response program where he stated: "During COVID-19, the police could not have given self-bail."

He was asked a question on Christopher Hunte, who was arrested during an 'anti-Chastanet' motorcade around the island on Sunday, June 14, 2020, and charged with inciting an unlawful public march.

Hunte was held overnight and granted bail the next day in the sum of $500.

Desir was asked why Hunte was not bailed on his own recognizance.

He responded saying: "During COVID-19... please remember that we are not in ordinary times. The Senior Magistrate sent correspondence to the Commissioner of Police informing of the manner bail hearings should be done...

It was said on no certain terms that we could (not) have given self-bail, the police. We need to communicate with her and then she would state whether the person comes in person, whether she can do it on her own."

The Bar Association President has responded saying: "I refer to a recent statement made by the Commissioner of Police in relation to the exercise of police powers under the Criminal Code to grant bail to a person taken into custody without a warrant.

The Commissioner referred to a letter dated May 15, 2020, from the Senior Magistrate and stated that this restricted the right of the Police to grant bail.

I have seen the Memorandum issued by the Learned Senior Magistrate which was also addressed to me as President of the Bar Association of Saint Lucia and there appears to have been a misinterpretation or misunderstanding of the said Memorandum by the Commissioner and the intent and purpose thereof.

The Memorandum addressed Bail Applications in Breach of Curfew Orders and only sought to create a procedure for bail applications lodged with the court and did not in any way or at all refer to or seek to restrict the powers of the Police to grant bail pursuant to section 594 of the Criminal Code.

Neither the Senior Magistrate nor any third party has the authority to direct a police officer to disregard the laws of Saint Lucia or to not exercise powers vested in him or her by such laws. 
 
The power of arrest or detainment of an individual granted to the Police under our laws deprives that individual of fundamental rights and freedoms enshrined in our Constitution.

This power should never be taken lightly and should under no circumstances be abused.

Whilst the Police have a right to detain a person for up to 72 hours, that right is subject to the obligation to ensure that this person is not detained for any period longer than is necessary to investigate, charge and brought before a Magistrate for bail.

This must at all times be undertaken expeditiously and without undue delay. 

Individuals must never under any circumstances be kept in cells in Police Stations, particularly overnight, deprived of their civil liberties without bail considerations unless it is absolutely necessary to do so for the investigation of the matter and or to protect the public.

Section 594 of the Criminal Code empowers the Police to grant bail where an offense is not punishable by imprisonment and even when punishable by imprisonment, is not a serious one and makes it mandatory for the Police to consider the grant of bail in every case. This is to ensure that individuals arrested are not detained and their fundamental rights deprived for any period longer than necessary.

As such, it is extremely important and necessary to the Rule of Law for the powers of the Police under this section to remain unfettered.

Police Officers take an oath to discharge their duties according to law, without fear or favour, affection or ill-will and it would be an affront to the Rule of Law and indeed a constitutional crisis if third parties were allowed to interfere in the exercise of these powers."

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