Thursday, December 17, 2015

Police (Amendment) Bill, 2015

[1]     The Hon Attorney-General of Anguilla has in recent months moved the passage of the Anguilla Police (Amendment) Bill in the House of Assembly of Anguilla, and proposes that it be passed into law without amendment.  He urges that this Bill is intended to give the police the power to, on arrest, take measurements, photographs, fingerprint impressions and non-intimate samples.  The second and third readings of the Bill are slated to occur in the near future.
[2]     The principal concern of the Anguilla Bar Association, which I share, is with section 2 of the Bill which proposes to amend section 26A of the Police Act by deleting subsection (1) and substituting the following:
(1)     It shall be lawful for a Gazetted Police Officer or for any police officer of or below the rank of Inspector who is authorized by the Commissioner of Police to take and record for the purposes of evidence, such non-intimate sample from any person where he suspects that that person, from the nature or character of the offence with which he has been arrested, has been previously convicted or has been engaged in crime and such non-intimate sample is required in the interest of justice or for the purpose of investigating or prosecuting the offence for which he has been arrested.
[3]     Section 26A(4) of the Police Act provides:
(4)     For the purposes of this section “non-intimate sample” means –
(a)          a sample of hair other than a pubic hair;
(b)          a sample taken from a nail or from under a nail;
(c)          a swab taken from the mouth;
(d)          a swab taken from any part of a person’s body other than a body orifice;
(e)          saliva;
(f)            a footprint or a similar impression of any part of a person’s body other than a part of his hand.
[4]     All laws passed by the House of Assembly are subject to the Constitution of Anguilla, 1982.  If a proposed law contravenes any provision of the Constitution, except in a very few cases to do with the subordinate position of Anguilla as a British Overseas Territory and in relation to the UK Parliament, such a law will be liable to be declared unconstitutional if challenged in a court of law.
[5]     In addition to the obligations and standards imposed by the Constitution, there are certain fundamental rights enjoyed by all persons in Anguilla.  The first relevant section of the Constitution is section 1.  This provides:
Fundamental rights and freedoms of the individual
1. Whereas every person in Anguilla is entitled to the fundamental rights and freedoms of the individual, that is to say, the right, whatever his race, place of origin, political opinions, colour, creed or sex, but subject to respect for the rights and freedoms of others and for the public interest, to each and all of the following, namely—
(a) life, liberty, security of the person, the enjoyment of property and the protection of the law; . . .

[6]     In the view of the Bar Association, and in my view, any police action taken without consent which intrudes upon an individual’s body in more than a minimal fashion violates the accused’s right to security of the person.  The Bill infringes this constitutional right to security of the person, and it does so in a manner that is not consistent with the Constitution or the principles of fundamental justice.  By requiring the giving of these samples (some of which are intimate, notwithstanding the characterisation given in the Bill) in the circumstances outlined, amounts to the ultimate invasion of the accused’s privacy, and breaches the sanctity of the body which is essential to the maintenance of human dignity.  This cannot be acceptable in a democratic society.  Accordingly, the Bill infringes section 1 of the Constitution.
[7]     Section 3 of the Constitution provides
Protection of right to personal liberty
3. (1) No person shall be deprived of his personal liberty save as may be authorised by law in any of the following cases, that is to say—
(a) in consequence of his unfitness to plead to a criminal charge;
(b) in execution of the sentence or order of a court, whether established for Anguilla or some other country, in respect of a criminal offence of which he has been convicted; . . .
(f) upon reasonable suspicion of his having committed or of being about to commit a criminal offence under the law of Anguilla; . . .
[8]     Section 3 provides that no person shall be deprived of his personal liberty save as may be authorised by law in nine circumstances, including, where he is reasonably suspected of having committed or being about to commit an offence.  Every person has a right not to be confined or taken anywhere by any government official, including a police officer, against his or her wishes unless in one of the nine circumstances outlined in the Constitution.  Yet, the proposed Bill would permit a police officer to detain an individual and force him or her to give up saliva and fingerprints on mere suspicion.  Mere suspicion is not one of the nine circumstances outlined in the section.  Thus, the requirement of mere suspicion falls below the higher threshold of “reasonable suspicion” set out in the Constitution.  The proposed Bill therefore infringes section 3 of the Constitution.
[9]     Section 8 of the Constitution provides a fundamental right to protection from arbitrary search or entry:
Protection from arbitrary search or entry
8. (1) Except with his own consent, no person shall be subjected to the search of his person or his property or the entry by others on his premises.
(2) Nothing contained in or done under the authority of any law shall be held to be inconsistent with or in contravention of this section to the extent that the law in question makes provision— . . .
(c) that is reasonably required for the purpose of preventing or detecting crime; . . .
and except so far as that provision or, as the case may be, anything done under the authority thereof is shown not to be reasonably justifiable in a democratic society.
[10]   The proposed Bill would permit a police officer to search the person and remove evidence from him.  However, section 8 provides that, except with his own consent, no person shall be subjected to the search of his person or property or the entry of others on his premises.  The only permissible exceptions are where there is a law that is reasonably required in the interests of defence, public safety, public order, public morality, public health, public revenue, town and country planning, or the development of property to promote the public good; or a law permitting search or entry that is reasonably required for the purpose of preventing or detecting crime, or protecting the rights and freedoms of other persons.  Additionally, any law authorising the search of the person without a warrant must be shown to be reasonably justifiable in a democratic society.  In the view of the Bar Association, which view I share, the Bill would fail when considered against the “legitimate aim” and “proportionality” tests, and as such would be struck down by a court as unconstitutional.
[11]   Section 9 of the Constitution contains the familiar provisions to secure the protection of law to all persons in Anguilla:
Provisions to secure protection of law
9. (1) Whenever any person is charged with a criminal offence he shall, unless the charge is withdrawn, be afforded a fair hearing within a reasonable time by an independent and impartial court established by law. . . .
(5) Every person who is charged with a criminal offence shall be presumed to be innocent until he is proved or has pleaded guilty: . . .
(10) No person who is tried for a criminal offence shall be compelled to give evidence at the trial. . . .
[12]   Section 9(5) guarantees that every person charged with an offence is presumed to be innocent until the contrary is proven.  This is the “presumption of innocence” right.  Additionally, section 9(10) confers on all persons the right not to be forced to give evidence against himself or herself.  This is the “right against self-incrimination”.  The proposed Bill undermines both the presumption of innocence and the right against self-incrimination.  By taking samples from the individual even before he or she is charged with any offence that person now has the task of proving his innocence, especially in circumstances where his samples will be forced to speak against him or her.  The burden of proof will have been shifted to the accused contrary to the guarantee under the Constitution.  In the view of the Bar Association, which view I share, the Bill infringes sub-sections 9(5) and 9(10) of the Constitution.
[13]   Research in the various other Overseas Territories reveals that only the Cayman Islands have passed legislation which deals with the taking of non-intimate samples without consent.  But, there is a marked difference between their position and what is being proposed for Anguilla.  In the Cayman Islands law, the police officer who authorises the taking of the sample without consent must have:
(i)      reasonable grounds for suspecting the involvement of the person from whom the sample is to be taken; and
(ii)      reasonable grounds for believing that the sample will tend to confirm or disprove his or her involvement.
It is therefore clear that the Cayman Islands legislation does not authorise taking of samples on mere suspicion.
[14]   In conclusion, I make the following three observations, which are personal to myself and do not reflect the position of the Bar Association.
[15]   First, the rules for the taking, holding, preserving, and presenting items of physical evidence in court are quite strict and stringent.  The police must be able to prove that the physical evidence has been preserved and protected by a rigorous “chain of custody” that makes it highly improbable that the evidence has been interfered with, contaminated, or planted.  Over the past decades, countless serious criminal prosecutions to my knowledge have been lost or compromised because of the failure of the police to follow the basic rules for the uncontaminated preservation of items of physical evidence.  The Royal Anguilla Police Force has a dismal record of failure to produce in court physical evidence, in relation to a criminal case that is being prosecuted, in a manner that is admissible in law.  If the police cannot succeed in producing in court easily preserved physical items such as samples of drugs and firearms due to their failure to follow the rules relating to the chain of custody, how likely is it that they will succeed in being able to produce in court the more sensitive evidence of DNA samples?
[16]   Second, due to institutional weaknesses in the investigation techniques of the police, most convictions are obtained by the use of admissions or confessions made by legally unrepresented defendants.  This Bill will extend the dubious process of obtaining incriminating evidence against an accused person from the accused person himself, instead of through the proper and professional investigation of an offence, and the collecting of evidence sufficient to prove the guilt of the defendant beyond reasonable doubt.  This proposed Act will do nothing to reverse the decline in police investigation and prosecution techniques, but will rather encourage and re-inforce the perception that the best source of evidence is the defendant himself.  In that direction lie too many opportunities for abuse and misuse of power.
[17]   Third, in my opinion, the most likely outcome of the new and draconian powers proposed by this Bill will not be to secure evidence that will lead to convictions in deserving cases, but the powers will instead be used to stop and detain young persons on the side of the street and to humiliate and degrade them as a substitute to properly charging and prosecuting them.  It is this social concern, more than any constitutional or technical legal point, that drives my opposition to this Bill.
Edited 18 December to remove long portions of statutes that are not strictly relevant