by Curlan Campbell, NOW Grenada
- Proposed amendments to Criminal Code CAP. 72A will increase penalties for certain sexual offences
- Move by Attorney General’s office described as unconstitutional
- Attorneys state proposed amendments drafted without prior consultation
Six criminal defence attorneys are prepared to legally challenge a move by the Attorney General’s office described as unconstitutional to make amendments to the Criminal Code CAP. 72A, Criminal Procedure Code CAP. 72B and Evidence Act CAP. 92.
Last Friday, 15 November, Attorneys at Law Derick Sylvester, Francis K Paul, Otis Spencer-Diaz, Jerry Edwin, Andre Thomas and Anselm Clouden came together to address their concerns.
Under the proposed amendments of the Criminal Code CAP. 72A, once approved in parliament will see the increase in a penalty upon summary conviction of indecent assault from five to seven years, and the penalty for rape increased from 30 years to life in imprisonment.
This is among several proposed amendments to be made to Criminal Code CAP. 72A and Criminal Procedure Code CAP. 72B and Evidence Act CAP. 92.
The other amendments put forward by the Attorney General’s office include:
- Remove certain restrictions pertaining to the admission of evidence
- Expand the classes of persons permitted to have access to or remain in the room or building in which matters are being heard in sexual cases
- Make special provision for children and other vulnerable witnesses; and
- Increase penalty for certain sexual offences.
These amendments were brought to the attention of the President of the Grenada Bar Association, Lisa Taylor, via a letter dated 12 November 2019. While not opposing all of the amendments being proposed, these attorneys have rejected the move by the attorney general’s office stating that these amendments can and will infringe on the rights of both accused and complaint, therefore hindering their ability to have due process.
One of the first of many glaring issues highlighted by the attorneys was that these proposed amendments were drafted without prior consultation.
“You cannot ask for feedback after you have drafted bills to be sent to the Houses of Parliament. You have a consultation with the bar first and that consultation was not had,” said Sylvester. “Furthermore, the opening statement in Attorney General Darshan Ramdhani’s letter to the bar which stated that these amendments were prompted “in light of recent cases involving young victims of sexual abuse, the need for review and upgrade of certain aspects of the criminal law has been brought into focus” has also suggested that the Attorney General’s office has allowed public outcry to drive amendment that goes contrary to the constitution.”
Sylvester believes the recent judgment in the case of indecent assault of a minor at the Grenville Magistrate’s Court that sparked outrage in the public domain is what has fuelled this latest move. Although agreeing that the judgment meted out was quite lenient, he believes the approach taken will have long-lasting effects. “You do not let the public drive changes in the law that are contrary to the Constitution. If you’re dissatisfied with his singular sentence you can appeal as they have done in the case, I’m sure the one that emanates from Grenville. You do not take away rights from accused persons by virtue of the fact there’s one singular infraction that you are dissatisfied with. I am not saying that the punishment shouldn’t reflect the extent of the crime, I am saying yes, but I am also saying that the process must be fair.”
Sylvester pointed to a particular amendment to the Evidence Act which seeks to remove corroboration that seems to contradict what is outlined in section (8) (e) of Grenada’s Constitution which states that “Every person who is charged with a criminal offence shall be afforded facilities to examine in person or by his legal representative the witnesses called by the prosecution before the court, and to obtain the attendance and carry out the examination of witnesses to testify on his behalf before the court on the same conditions as those applying to witnesses called by the prosecution.”
Based on the proposed amendment drafted under the Evidence Act, corroboration shall not be necessary for evidence given by a child of tender years in civil or criminal proceedings to be corroborated to determine liability, a conviction or any other issue as the case may be in such proceedings.
“There’s a request to amend the law to remove certain witnesses from being cross-examined. That’s 1; 2 to allow medical evidence to be tended to the court without cross-examination. We just have to think if our brothers and sisters are charged would we like those persons to not have a fair trial? To deny them the right to cross-examine a doctor, to deny them the right to cross-examine the complainant. The Attorney General is asking to remove corroboration is simply this in layman terms: [he] is asking to remove section 2 or 3 from the criminal procedure code, corroboration is any evidence that is material in nature that tend to give support and or lend credence to the evidence of a particular complainant. The request is to remove corroboration. So, what [he] is asking to do is to vitiate the rights of an accused person,” said Sylvester.
Edwin lent his support towards the condemnation of the proposed amendments and he has expressed disappointment with the approach by the attorney general’s office and has called for these amendments to be withdrawn immediately. “You cannot take a piece of paper give it to the parliament and say, you know, the public wants this. Let’s give it to them. There are not enough rooms in Richmond Hill that could hold the young men who may fall victim to this unfortunate proposed piece of legislation. We are open to our discussion. He should withdraw this; don’t fight with the bar. Don’t fight with the Grenadian public. Don’t try to take away the rights of the Grenadians. Let’s sit down and do this the right way.”
Paul said based on these amendments, anyone charged with sexual offence will have their cloak of presumed innocence stripped away. He believes that there are more pressing matters with regards to prison reform that are not being addressed. “There are so many things, issues, burning issues that need to be focused upon by the attorney general as my learned colleague. Sylvester said look at the conditions in the prison. You have what you call the main remand block which supposed to house about 10 [people]; it’s housing more than 30 and that’s a fact and when you go there you see guys sleeping on cardboard. They have no mattress after 4 o’clock. You know what the bathroom is? It’s a bucket.”
Sylvester provided insight into what led to the light judgement meted out to Treverson Roberts who was convicted of indecent assault against a minor. According to the judgment which was since appealed, Roberts was sentenced to pay a fine of $1,500 to the State of Grenada and $600 to the family of the child as compensation for medical expenses.
Sylvester said based on scanty evidence presented by the prosecution department, the magistrate had no other option but to impose the judgment. He said this now lends to the need for lawyers to be prosecuting matters in the magistrate court rather than the usual prosecution officer attached to the RGPF. “When you give a judicial officer [a] scanty bit of evidence in relation to an offence, she’s only going to sentence based on what you would have given to her. I have always championed for this that we should have lawyers prosecuting. I have said so on many a time. Lawyers should be prosecuting. I’m not saying the police don’t try and do a good job, but the same police officer who is going to arrest you, is the same police department that is now prosecuting you.”
He continued, “I’m saying we need to have lawyers in the magistrate court.”
Efforts to reach Attorney General Darshan Ramdhani proved futile.