The Evidence (Amendment) Bill 2022 is unconstitutional

May 18, 2022 Letters

Dear Editor,

The Evidence (Amendment) Bill 2022, Bill No. 3 of 2022 is a repressive piece of legislation, which the PPP/C Government has laid in Guyana’s Parliament and is not in keeping with our aspirations for a Democratic state.

The Proposed Amendment, Clause 63 A, will rob the Guyanese Citizen of the right to the protection of his or her liberty and to security under the law of a fair hearing before an independent and impartial court guaranteed under Articles 139 and 144 of the Constitution of Guyana.

Section 63 A provides:

63 A (1) In any proceeding a confession made by an accused person may be given in evidence for another person charged in the same proceedings (a co-accused), in so far as it is relevant to any matter in issue in the proceedings and is not excluded by the court in pursuance of this Section.

(2) if, in any proceedings where a co- accused proposes to give in evidence a confession made by an accused person, it is represented to the court that the confession was or may have been obtained:-

(a) by oppression of the person who made it; or

(b) in consequence of anything said or done which was likely, in the circumstances existing at the time, to render unreliable any confession which might be made by him in consequences thereof, the court shall not allow the confession to be given in evidence for the co-accused except in so far as it is proved to the Court on the balance of probabilities that the confession, notwithstanding that it may be true, was not so obtained. This amendment in effect means that where A confesses to the commission of a crime and in his confession he calls the names of B and C who he implicates as being parties who agreed to commit the offence with him but who were not present on the scene with him, when he acted.

The prosecution by virtue of this amendment can give A’s confession in evidence against B and C unless the confession is excluded for oppression or in consequence of anything being said or done making it unreliable. If passed by the Parliament, clause 63 A would abolish the existing law relating to confessions where several persons are charged in the same proceedings. The existing law is that the confession of an accused person is not evidence against a co-accused. That is A’s confession is not evidence against B and C (co-accused).

Moreover, the existing law too is that no confession (oral or written) is admissible in evidence against an accused person unless it is shown to have been made freely and voluntarily. The voluntariness of such a confession is determined by a Judge on a Voir Dire (a trial within a trial) on the standard of beyond reasonable doubt and if admitted the confession statement goes to the Jury which determines, as a matter of fact, its truthfulness or the weight to be attached to it.

All of this protection would be lost to the individual that is guaranteed by the Constitution, especially where clause 63A imposes a lesser standard of proof namely on a balance of probabilities (a civil standard), and a Magistrate or Judge sitting without a Jury, exercises their power on the question of admissibility.

To be continued…

Regards,

Basil Williams SC

Former Attorney General and Minister of Legal Affairs

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