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!

 

Is Anguilla a Kakistocracy?

 

 

My friend Ali taught me this new word.  Anguilla, he exclaimed, is a kakistocracy.  I nodded my head sagely, and waited until I was in private to Google it to find out what it meant.  I learned the word has been around for about 500 years.  It means government by the worst or least competent, the opposite of aristocracy, or government by the supposed best.  I was so delighted by what I found that I was determined to find an opportunity to use it.

Some weeks ago, I was in an informal meeting at the Ministry of Finance conference room with a visiting UN team out of Barbados that was in Anguilla to sign an agreement with the Premier about support the UN will provide us in a wide range of areas.  The visiting team wanted to alert us to the existence of this Agreement in case it could be of any use to our organisations.  The GOA however seems to believe that this Agreement is so confidential that it is best it be hidden away from us.  There has been no mention of it in any press release.  No Anguillian member of the public has been favoured with a sight of this Agreement that was so important that a three-man UN team travelled up from Barbados to sign it.  I was present at the meeting as a part of a group of “civic society” associations that the visitors thought should be aware of this new Agreement.  Apparently, by this Agreement we in Anguilla agreed with this UN organisation that we were going to live up to all sorts of standards that we are required to achieve if we can participate.  Since no one has told us about it, I am not certain how we are going to do it.

I could hardly understand a word of what the French leader of the UN team was saying to us.  He spoke “Franglais” in a rapid-fire monotone at the very lowest pitch, guaranteed to leave his listeners no wiser at the end of his talk than they had been at the beginning.  I gathered that we were expected to live up to all sorts of standards that we had not been doing before.  Unfortunately, the UN could not help us in civil society with any funding to achieve these goals, since we were a British Overseas Territory, and the UK was solely responsible for ensuring we lived up to our international expectations.  But the UN might be able to include us in a regional workshop if government requested it and if funds were available.

I tried to explain to the gentleman and his team that there was another problem besides funding.  There is no Agreement that we sign that our government does not immediately break once it is no longer convenient (that is, no funds are forthcoming) or that we do not ignore (for example, if we are expected to incur an expense.)  I gave an example of us making a law that was unworkable.  A few years ago, I explained, our government took the decision to ban the import and sale of single-use plastics.  We were admonished to take our own shopping bags to the supermarket, since the familiar free plastic ones would now be banned.

Within weeks of the announcement, posters and billboards heralding this ban were put up on walls and along public roads all over the island.  Some of them were quite elaborate, and you wondered where our government in those penniless days was able to find the funds to engage in this massive marketing exercise.  Then, you saw the small print at the foot of the banners and billboards, which read “Environmental agency of Barbados”, and you realised they had just borrowed the artwork from Barbados, and there was nothing original about the presentation.

For a few months, supermarkets stopped handing out free plastic shopping bags.  Cardboard straws and food containers were offered to customers.  Plastic shopping bags labelled “biodegradable” made a short-lived appearance, but they have mostly all disappeared now, replaced by either the old harmful ones or by newly designed ones labelled “recyclable”.  A recyclable bag is not always biodegradable, though a bag may be both biodegradable and recyclable.  There has been no attempt to enforce the ban.  The ban has simply gone into hibernation, as so many other commendable efforts do.

I had never heard of us in Anguilla passing a “single-use plastics ban” law or Regulation.  I knew that our governments frequently but erroneously believe that because something has been discussed and agreed in Executive Council, that makes it the law.  Of course, nothing could be further from the truth.

If government wants to make it illegal for shopkeepers and restaurants to import and hand out to customers free plastic shopping bags and Styrofoam containers, they would have to pass a law to put this ban into effect.  The police cannot prosecute a shopkeeper for illegally supplying free plastic shopping bags unless there is an enforceable law.  I had previously searched the law but could not find anything.  So, I told the visiting UN delegation that this was an example of us in Anguilla making up a non-existent rule that was completely unenforceable.

Up piped one of our local participants, “Nonsense, Don, the Minister signed the required Regulation under the Customs Act.”  That caught me by surprise, and I had nothing further to say.  I was not going to argue in public with a non-lawyer (and a friend of mine) that there was no power under the Customs Act to prohibit the importation of any otherwise legal goods into Anguilla.  So, I merely apologised to the persons present that I was obviously out of touch with current Anguilla laws.

I came back home to my laptop computer, and I searched the laws of Anguilla.  Sure enough, there was nothing in the Customs Act that prohibited the import of single-use plastics.  So, I took a chance and wrote a Permanent Secretary inquiring whether there was any law that brought this alleged prohibition into effect.  She very kindly and efficiently wrote back explaining that the Minister had signed a Regulation under the Public Health Act in 2019.  She even sent me a copy of it.

What she sent me was a Regulation titled the Single-Use Plastics (Prohibition) Regulations 2019.  This Instrument prohibits the distribution and sale of single-use plastics in Anguilla after 30 June 2020.  It was signed by the Hon Evan McNiel Rogers, Minister of Health.  It says that he made it with the approval of Executive Council under Section 8 of the Public Health Act.  I read it with interest, and with rising concern.  It is not included on the Government website of the statutes of Anguilla.  Was it ever published?  Or was it kept secret?

It is basic principle of administrative law that it is the House of Assembly that generally makes law for Anguilla, not Ministers.  Sometimes, the administrative details of a statute are not convenient to put into a law that is going to be debated in the Assembly.  Then, it is quite common throughout the Commonwealth for parliament to pass a skeleton Act and in it to delegate to another person, eg, a Minister or the Governor, the power to make Regulations to give effect to the law.  That makes the Regulation as good as a statute passed by parliament.

But there is one essential rule.  The Minister can only sign into law a Regulation that gives effect to the intent of the statute.  The Minister is then “fleshing out” or adding necessary detail to the law.  He is doing what parliament was supposed to do but did not do because it was too complicated or a mere administrative detail that the Assembly delegated to him to fill out.  He cannot sign into law a Regulation that has nothing to do with the substantive law, the Act.  That would be illegal and unenforceable.

I checked and re-checked the Public Health Act.  Did the Assembly in that Act give the Minister power to make any Regulation prohibiting the import of any goods?  Section 8 gives the Minister the power to make almost 100 different types of Regulations.  They range from Regulations preventing disease to Regulations respecting the performance of post-mortem examinations.  But they clearly do not include a power to prohibit the importation of anything, including single-use plastics.

There is a good reason for this omission.  Since long before Anguilla became a separate colony of Great Britain under the Anguilla Act of 1981, there has been a law in Anguilla inherited from the old Associated State of St Kitts, Nevis, and Anguilla that empowered the Executive Council to prohibit the importation of any goods into the colony.  That law is the External Trade Act.  It is a very old Act, dating back to the Colony of the Leeward Islands in the 1800s.  It was first enacted as I recall by the Legislature of the Leeward Islands.  It is still a valid law of Anguilla, listed on the government website under the statutes of Anguilla.

Section 2 of this Act states quite simply that the Governor may by an Order published in the Gazette prohibit the import of any class of goods.  So, if the Anguilla government wanted to prohibit the import of single-use plastics, they had to do it under the External Trade Act, not under the Public Health Act.  They had to do it by an Instrument signed by the Governor, not one signed by the Minister.  They had to do it by an Order, not by a Regulation.  They had to ensure the Order was published in the Gazette.  I concluded that any first-year CAPE (A-Level) law student in Anguilla can explain why this Instrument is illegal and unenforceable.

I wrote to the Permanent Sectary pointing out that we all in Anguilla wanted the abolition of single use plastics, but we need it to be done by a law that is enforceable.  We do not want a law that is so obviously defective that any shopkeeper charged with an offence would be able to get the charges dismissed by a first-year law student, not even needing a qualified lawyer.  That would result in the Attorney General and the government being left with egg all over their faces, not to mention the legal costs.

When a month passed, not hearing anything back from the Permanent Secretary, I wrote a polite note to the Attorney-General encouraging him to have one of his parliamentary draughtspersons look at the issue.  I pointed out that it would be a simple matter to have the Governor sign the same Order under the External Trade Act while quietly withdrawing the defective Regulation previously made under the Public Health Act.

More than a month has now passed, and I have not heard back from the Attorney-General.  Of course, I have no right to expect to receive correspondence from the government’s legal counsel.  The A-G only responds to Ministers and government departments, not private citizens.  I would have been satisfied to see the correct Order signed by the Governor published in the Gazette.  That would show that government was responding efficiently and diligently to an urgent and necessary matter of good government.

The bottom line is that shopkeepers are not bound by any existing valid law to stop importing and distributing permanent, non-degrading shopping bags.  The restaurants that still supply Styrofoam cups and take-away food containers need have no fear.  They are free to continue all the old, bad practices, confident in the knowledge that no one can do them anything!  It may be bad for the environment, but it is not illegal.  If any customs officer confiscates any of their plastic bags or other utensils, they can claim compensation for an illegal act done to them.  Any customs officer or other government officer interfering with the conduct of legitimate trade leaves government open to claims for damages and compensation.

Considering the importance of the correction suggested and the insignificance of the work necessary, is it asking too much to make the correction?  The correction would make an unworkable law effective. It would avoid the risk of egg on everyone’s face when an attempt is made to enforce it.  It is such a simple legislative drafting job that a trainee draughtsperson could do it.  Or is Ali right and inefficiency and lack of diligence prevail in our public administration?