Obeah and the Attorney-General

 

 

CORRECTION

It has come to my attention that I was wrong in law in an earlier version of the essay below to state that the A-G has the power to direct the Commissioner of Police to withdraw the charge against the Minister.

I was unaware of the 16 April 2014 advice of the Privy Council in the case of the Commissioner of Police v Steadroy Benjamin [2014] UKPC 8.  In that case the PC asked the question, “Does the Director of Public Prosecutions have a general power to prevent the police from instituting criminal proceedings?”  They held that the DPP has no power to instruct the police who to prosecute, nor who not to prosecute.  There is nothing in any Act nor in the Constitution giving this power to the DPP.  The Constitution gives him the power once a complaint has been filed in the court, to take over the case and then to discontinue it, as was done by the Anguilla A-G in the Minister’s case.  The procedure followed by the A-G in the Minister’s case was therefore unimpeachable.

I was in error when I stated in the earlier, erroneous version of this essay that “As legal adviser to the police and lead prosecutor in Anguilla, the A-G already has control of all police prosecutions.  The normal way for an A-G to discontinue a police case is for him to instruct the Commissioner of Police to withdraw the charges.”  As the PC was at pains to explain, the A-G can advise the police to withdraw a case, but he cannot instruct them to do so.  Normally, the police would be expected to act in accordance with the advice of the A-G, but they are not obliged to do so. 

The A-G of Anguilla was therefore quite correct in law when he took over the police prosecution and formally discontinued it in the case I reference below.

I apologise to all persons whom I accidentally misled.  My research should have been more thorough.

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The connection between Obeah and the Attorney-General (A-G) of Anguilla is a long and tortuous one.  It is an epic story of misbehaviour and character flaws among Ministers of Government in Anguilla, and the intervention of the justice system.  I shall tell you the story.  I’ll try to keep it short.

If I thought there was the slightest chance of either Magistrate’s Court or High Court criminal, appeal, judicial review, or civil proceedings continuing in court in this matter, I would hold my peace.  It is unseemly for an ex-judge to express publicly an opinion on any proceedings that are or might come before any court.  But, since I am convinced that there is little chance of any further proceedings being brought in this matter, I feel free to express my personal views.

The now notorious events of 23 May 2023, when a Minister of Government struck a citizen with a chair, all the while uttering the foulest and most indecent threatening language that can be imagined, resulted in the police carrying out a criminal investigation.  Besides the evidence of the witnesses, mainly the Minister’s colleagues, there are two videos.  The entire event was caught silently by a surveillance camera. There was also video film captured from the mobile device of a Minister containing the language of the impugned Minister.  Commencing on the day of the incident, the latter video was widely circulated throughout Anguilla and the region.  I venture to say that no adult in Anguilla with a smart phone has not seen the video.  We have all seen and heard substantially all the video evidence there is.

Subsequently, after an unexplained delay of some three months, the police finally laid charges against both the Minister and the victim.  The victim was hurriedly arrested at his home on the day of the incident for an alleged breach of the peace and released from custody the same day.  By contrast, the Minister was never arrested or questioned, so far as we know.  It would be fair to say that the delay was unusual given the nature of the offences and the available evidence.  Even the specifics of the now discontinued charges against both parties have never been publicly disclosed.

The constitutional power of the A-G to take over and discontinue any prosecution is undoubted.  It is an ancient power inherited from the British Government that has found its way in all our Commonwealth Caribbean Constitutions.  It is generally exercised “in the public interest” where the A-G judges that the evidence is insufficient to secure a conviction and where he believes continued prosecution would be an abuse of the legal process and a waste of the Magistrate’s time.

The Minister engaged in behaviour caught on film that in the case of any private citizen would have resulted in likely more serious charges immediately being brought and vigorously prosecuted.  Even if she and her friends claim that she was acting in self-defence, the video tape evidence is clear.  Whatever happened before the filming began, the evidence on the tape shows that her conduct was at best retaliatory, at worst an unprovoked assault.

Members of the public are understandably upset at the Minister appearing to get off scot-free from filmed conduct that in any other case would have resulted in immediate criminal proceedings.  The airwaves from Klass FM 92.9 are filled almost daily with commentators condemning the police force, the Premier, his Government, the A-G, and the Governor, for sweeping under the carpet allegedly criminal conduct by a Minister.

Other commentators are now calling on the victim to bring an application before the High Court asking for judicial review of the A-G’s decision.  The problem is that that remedy is an exceptional one; it is only available in very limited circumstances.

We all remember when a few years ago in another island a police officer accused the Prime Minister whose house she was guarding of having sexually assaulted her.  The victim brought her own criminal complaint in the Magistrate’s Court.  The Director of Public Prosecutions, who in that country performs the duties that in Anguilla are performed by the A-G, immediately “took over” and discontinued the case.  That was a private criminal prosecution.  The police could not discontinue it, as they had no control over it.  The victim subsequently applied to the High Court for judicial review of the DPP’s action.  The High Court dismissed the application.  The police officer then appealed to the Court of Appeal.  That Court of Appeal held that the judge was right.

The decision of the A-G to take over and discontinue a private criminal prosecution is not normally subject to judicial review.  Save, for example, in a case of bad faith, such as where a bribe was paid, or where there is proof that the A-G acted under the influence of any other person, the decision of the A-G is not reviewable by a court in Anguilla.

In this Anguillian case, the only realistic recourse the victim now has is to file a civil claim in either the Magistrate’s Court or the High Court for damages for civil assault.  He is unlikely to do either.  If he files the case in the Magistrate’s Court, a small claims court, the damages he can be awarded for the injury he received would be minimal.  He would probably feel publicly humiliated by what he would view as a contemptuous judgment in his favour.  The High Court would not serve him any better.  The High Court deals with damages cases where the amount claimed is more than EC$20,000.00, the amount in the Magistrate’s Court.

The only alternative to court action available to the victim is political action.  Those in opposition to the Government have taken up his cause as a free, government-supplied, opportunity to flog the present Administration.  The Government’s main remedy is to ignore the chatter and hope the problem will go away, as these things usually do.  Occasionally, when confronted by a journalist at a press conference for failing to act, the Premier gives unconvincing excuses and explanations, such as waiting for the police investigation to be completed.  This whole epic is Anguillian popular theatre at its best.  We all love it so and encourage it for our entertainment.

Friends of the citizen in question have now launched an on-line petition calling on the A-G to go back on his decision, and to reinstitute the original criminal proceedings.  Can anyone seriously contemplate the A-G of any country going back on a decision of this nature and pleading, “I beg your pardon.  I made a mistake.  It was wrong of me to discontinue the case.  I am going to revive it as you request.”  Merely to set out what the petition asks the A-G to do reveals how preposterous and unlikely it is.  Yet even though I know it is futile, I have signed the petition.  This is to demonstrate my general dissatisfaction at how the authorities have mishandled the conduct of the Minister.

I have heard it hinted on the public media that the A-G acted improperly in this matter.  The suggestion is that either the Governor or the Premier leaned on him to persuade him to save the government by discontinuing the case against the Minister.  The suggestion is that he gave in to the pressure.  In my view, it is pure mischief to suggest such a thing.  Anyone with any knowledge of the character of the A-G in question knows that this is rubbish.  The constitutional power to take over and discontinue any court proceedings is an ancient constitutional device.  The British invented it years ago as an instrument for the protection of those at the top of the UK’s political life.  We have merely automatically inherited this power.  It is found in all our Constitutions.

The latest development in the saga of the cursing, chair-swinging Minister is a voice note from her father.  It has been in wide circulation in Anguilla in the past week.  It appears to be addressed to the proprietor of Klass FM, the most popular privately owned radio station in Anguilla.  The proprietor of this station regularly hosts citizens who are concerned about an issue.  He permits them to air their views and to solicit public support.  This radio station is virtually the only medium through which Anguillians can call for public support for whatever their project is.  In recent weeks the epic story of the Minister has consumed airtime daily.

The voice note in question from the Minister’s father is in the form and style of a Biblical curse.  Although I have long ago emancipated my mind from religious slavery, I found the contents of this voice note an epic of impropriety.  It is particularly disturbing coming from a well-known Anguillian Christian preacher and one-time pastor.  He knows his Old Testament, and revels in its Bronze Age violence and brutality.  These were his words, apparently addressed to the radio station proprietor and some of his recent guests:

In as much as you have taken the light in troubling the country with evil, and saying hurtful and dangerous things endangering the lives of private and public officers, this day I have found it compelling to invoke the judgment of God on you, two women, and four men, with whom you have conspired to do this evil.  May the judgment of God be upon you and your generations for evermore.

The pastor’s tone of voice throughout his invocation of the judgment of God was solemn and sonorous, redolent of a twisted religiosity.  Does anyone know of a single incident where either Christ or one of his disciples invoked a curse upon any opponent?  Does the New Testament recognise the right of a Minister of Religion to curse anyone “unto his generations for evermore”?  Is this even Christian?  It could not be.  In truth, this “Christian pastor” calling down a curse as he did echoed more like the incantations of an Obeah man or a Voodoo priest who is paid to put evil curses on his client’s enemies.  What next from a Christian pastor!

 

A Police Report

 

On Tuesday May 23rd, 2023, there took place in the Anguilla House of Assembly a debate on a Motion to establish a Select Committee to address and understand the rise of violence in our community.  Ministers of Government making their contribution to the debate unanimously regretted the recent increase in violence in our community and urged the taking of action to deal with the issue.  The Opposition members of the House joined in voting with the Government.  A Select Committee was unanimously established.  Everyone left the Meeting feeling very satisfied at a job well done.

Later that same day, four or five of the members of Government retired to one of our premier local restaurants to enjoy a well-earned lunch and refreshments.  Two of them were women.

Towards the end of their lunch break, a large male citizen approached the Ministers in an aggressive manner and began to upbraid one of the male Ministers over some incident that had occurred earlier between the two of them.  At some point after his approach, someone began filming the incident with their cell phone.  The entire video of the incident was subsequently circulated on the internet.  I doubt that there is an adult in Anguilla who has not seen this video.  It makes for riveting and unforgettable viewing.

In the video, the two lady Ministers repeatedly implore the citizen to leave the restaurant and not to interfere with them.  The citizen appears to start to leave, only to turn around and approach them again, all the time yelling at them at the top of his voice.  In his haranguing of the Ministers, the citizen appears to have touched or tapped one of the males.  He did not utter any threats to the women or to the males.  So, he does not appear to strike any of them.  But his conduct appears to me to have been provocative and abusive.

In the video, one of the female Ministers, after some minutes of this offensive behaviour by the citizen, begins to scream at him some of the foulest language imaginable.  There is no apparent logical reason for her reaction.  She appears to have completely lost her temper.  She picks up a heavy, wooden restaurant chair and approaches the citizen, yelling obscenities and threats to his life, ultimately striking him with the chair.  She can be heard repeatedly yelling at the citizen that she is going to kill him.

The other female Minister joins in shouting at the citizen, adding her reproaches, and imploring him to leave.  One of the male Ministers, the one earlier tapped by the citizen, sits calmly typing at his phone, with his back to the altercation.  He turns around once or twice to add his words of reproach to the citizen, but he does not threateningly approach him, nor does he touch him.  Another male member of Government appears briefly towards the end of the video ushering the citizen out of the restaurant.  After some more verbal confrontation, the citizen leaves.  He does not complain that he has been injured nor does he show any visible sign of injury as he leaves.

A few hours later, a photograph of the citizen was widely circulated on the internet showing him with his arm in a sling and a heavily bandaged finger.  He seems to be indicating that one of his fingers was broken, presumably by the chair striking him.

Someone important appears to have made a complaint against the citizen to the police because, allegedly, the citizen was immediately apprehended and taken to the Police Station for questioning.  According to the citizen, he was subsequently released from custody, without charges being brought against him.  There is no evidence that the female politician who struck him was either arrested, or taken to the Police Station, or even invited to make a police statement.  From all reports she was certainly not charged with any offence.

I do not believe it is an exaggeration to say that the community was shocked and horrified at the violent act and language shown by the female Minister.  We awaited the expected immediate and firm disciplinary action of the Premier.  Surely, on seeing the video he would immediately ask the Minister to resign her portfolios for conduct unbecoming.  If the Minister had any honour, she would not, in my opinion, await this action by the Premier.  She would immediately publish an apology to the citizen, to the Premier and to all of Anguilla for letting us down so badly.  She would then do the honourable thing and offer her resignation to the Premier.  She did nothing of the sort.  Nor did the Premier announce any disciplinary action against his Minister.  They both merely regretted what had happened.

Several days later, after various radio pundits complained publicly and repeatedly about the lack of any action, and dozens of mocking memes were widely circulated on the internet, the Premier acted.  He explained on radio that he understood the police were investigating the incident.  He stated that he must await their Report before deciding on the appropriate action to take.  The community was left stunned. 

The Premier has repeatedly stated since then, when asked by members of the public what action he is going to take, that he is obliged to await the results of the police investigation.  In my opinion, that is not an appropriate reaction by a head of Government to such violently unacceptable behaviour by one of his Ministers.  The dissatisfaction spreading through the community is palpable.  It is a political disaster for the Premier and his administration.

Why is the Premier’s reaction to his Minister’s violent behaviour so unacceptable?

First, under our system of law, the Premier is wrong to state that he is awaiting the outcome of any police investigation.  The police are not supposed to share their Report, or the details of their investigation, with any member of the public, especially a politician who is deciding what political action is appropriate for him to take.  This is so whether the politician in question is the head of Government or not.

Neither the Premier nor any other politician is the Minister for the Police.  The Governor and the courts are the only persons the Commissioner of Police is answerable to.  A Governor might expect the police to report their findings on an incident to her, but it is not automatic.  The informal National Security Council (of which the Premier is a member) established recently by the previous Governor might reasonably expect a Report to be shared with them, but not the details of the police investigation.

The Police Commissioner takes an oath to perform his duties independently of the Government and not to take sides.  His loyalty is to the law and the court system, not the Government.  The citizens expect him to be vigorously independent of all political affiliations.  He has not always been so, as we have seen from the actions of previous Police Commissioners.  But, whenever he allows his office to be used to promote the agenda of a government, or any other objective besides law enforcement, we rightly view it as a form of corruption.

When there is evidence that a crime has been committed, the police carry out their investigation with a view to helping the prosecution decide how to proceed.  They do not share that Report with anyone else but the Attorney General, the non-political head of our prosecutorial office.  It has been said that the police are there to collect information on criminal offences from the public, not to share that information with the public.

The Premier is quite wrong to expect that the Commissioner of Police will share the result of any police investigation with him to enable him to take any political action.  The fact that the Commissioner may do so in this or any other case is irrelevant.   In my opinion, the Commissioner would be acting quite improperly were he to do so.

The various offences that may have been committed here include both felonies, as they used to be called, and misdemeanours.  Some of the offences that may have been committed by the Minister in this case, such as assault occasioning actual bodily harm, may be charged either indictably or summarily.  That is, they may be brought before a judge and jury, or they may be brought before a Magistrate.  In Anguilla, most criminal offences (generally, save only for murder, manslaughter, burglary, and rape) are hybrid offences.  That means that the prosecution must decide which court is the more appropriate to being the charge in.  They could choose one or the other.

One of the reasons why, in our West Indian system, it is quite wrong for the police to share the result of their investigations with any member of the public, is the fear of influencing members of the public who may be summoned to sit on the Jury which will try any indictable offence with which an accused person is charged.

In the case of a professional Magistrate by contrast, no such fear arises.  He can be assumed to know how to ignore any evidence he hears outside the court room, and to decide the case solely based on the evidence adduced before him in his courtroom.

In the Anguillian context, it is nearly inconceivable that a Minister of Government committing an assault, such as appears may have occurred here, would be charged with an indictable offence.  The injury was relatively minor and may be said to have been provoked by the victim himself.  It is almost certain that, if the prosecution were to decide to bring a case here, they would bring it in the Magistrate’s Court.  But that is not the point.  The police cannot pre-judge the prosecutorial discretion of the Attorney General’s office and decide that there is no harm in risking making their investigations public since the case will be tried by a professional Magistrate.  Any possible charges for the offences of using obscene and threatening language in a public place are entirely triable in a Magistrate’s Court.

We don’t know who the Commissioner of Police will share the outcome of his investigation with.  He may do the right thing and refuse to share it with the Premier or anyone other than the A-G.  But he may weaken and give in to the Premier’s demand that he see it. 

What I can say from my experience is that in any other Caribbean Country, the police, sharing their Report on an investigation with a member of the public, would be called out by any judge in charge of a subsequent trial of the offence in question.  The Judge would accuse the Commissioner of attempting to corrupt or prejudice the trial.  The judge might even declare a mistrial and dismiss the charges on the basis that no reasonable jury could be expected to forget the details of the police Report previously shared with them, so that any trial would be compromised.  The Commissioner of Police would be summoned before the Court and would be severely reprimanded by the Judge.  The Judge could warn him that any repetition of such conduct would be followed by his recommending that the police officer in question by charged with an offence of obstructing the course of justice.  Or he could decide to impose a fine on the spot.

There is a second reason why, in our Caribbean system, the police would be wrong to share the results of their investigations with any member of the public, including a Premier.  We are very small communities where everyone knows everyone else.  Yet, we expect members of the public to share information with the police who are investigating a report of a crime.  A member of the public, who is known to have reported their knowledge of facts surrounding an offence, is at risk not only of injury.  He is at risk of losing his friends and his reputation in the community.  It is essential that no one, including a Premier, knows what the police have found out from him about any alleged offence.

It is already difficult for the Anguillian police to get witnesses to give information.  It is already a joke in the community that some police officers are so incompetent as to approach a suspect seeking an explanation for some incident with the words, “So and so told me that you did such and such.  What do you have to say?”  Public confidence in the police force is immediately and fatally lost.  No member of the public would be so stupid to report any crime they have seen to the police again.  Such an approach is so unprofessional as to be almost criminal.  The police officer needs firing.  It is essential, for the police to secure the confidence of the public, that they never disclose to any unauthorised person what they know about the commission of a crime.  Not only is this a sacred rule of police work, but it is also an obvious safeguard to guarantee the safety of members of the community who may be cooperating with the them.

Even if the Premier were to be given a copy of any police investigation into the incident, he could protest that he must await the outcome of any prosecution.  It may take years for any prosecution to be brought.  At the end of any trial, the Minister might be acquitted on the basis that the wrong charge was brought, or some other technical reason.  What does a police investigation or a criminal trial have to do with the leader of Government demanding the highest standards of conduct of his Ministers?  The answer is, there is no connection whatsoever.

How does the trial of a criminal complaint relate to conduct which is unbecoming and unacceptable?  The Premier is not being asked to act because the Minister committed a criminal offence, but because her conduct was unacceptable and unbecoming.  If he were allowed to use the excuse of the lack of a conviction, he could delay acting until his administration’s term runs out in 2025.  That cannot be right.  He promised us a new type of government if elected.  We thought he meant it.  That is why we elected him and the members of his party.  We are entitled to be disappointed in him and in them.

The present ARP administration holds power by the slimmest of margins, a 6 to 5 majority in the House of Assembly.  All six members of the governing party hold executive office in the Government of Anguilla.  There are no back benchers whom the Premier can call on to fill any vacancy in his administration.  The loss of even one member of his administration to the Opposition benches would mean that the Government would no longer have a majority and might not be able to pass any legislation.  Consequently, the Government would eventually fall.  It is in the Premier’s interest to keep all members of his administration happy.

It is seems to me that the Premier’s reluctance to call out and discipline his lady Minister most probably is not based on any imagined principle of the need to await the police Report.  It is based more likely on his preference to hold on to power and not to risk the Governor dissolving the House prematurely.  We may describe that as the worst kind of political expedience, and quite dishonourable conduct in a Premier.