Our laws need to be updated

Jul 10, 2023 Letters

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Dear Editor,

Kaieteur News – Human beings are the most intelligent of all living creatures – yet are also capable of the most depravity as we injure others to satisfy our own whims and pleasures, especially when we wield any influence over them, and kill for those same reasons as well as because of greed, without any necessity to eat food. Because those are truths known to all, we tend to shrug off many serious incidents – rape and murder even – with a sigh of resignation accompanied by expressions like “silt happens” and “c’est la vie”.

It is only when something of grand proportions occurs – like the bombing of the World Trade Centre and the Mahdia Fire – or when the alleged perpetrator is a famous person, like Donald Trump or Nigel Dharamlall that certain categories of criminal behaviour are taken seriously. One category of behaviour that often touches the edge of criminal conduct, and almost routinely amounts to social harassment, is the conduct of some male ‘bosses’ in Guyana. Female employees know who those men are, usually at the very outset, but the attitude is nothing new and is directly correlated to power dynamics – and significant because of high unemployment.

With Guyana transitioning economically, the unemployment factor will diminish in significance as women seize the opportunities rapidly becoming available to all. Still, embedded attitudes of dishonesty and short-sightedness of endeavour, like the attitude that produces the exploitation of young females, will need to be actively addressed by public messaging and by the law where possible. Our economic transition needs to be accompanied by a legislative transition that does not omit addressing how accused persons, child witnesses and complainants of sexual violence are processed by investigating authorities.

Some lessons to be extracted from the Dharamlall matter are:

The law needs to be updated and the systems currently in place need to be co-ordinated.

What an accused tells or refuses to tell police soon after arrest should be important especially a child or young person, especially when a sexual complainant, needs to feel believed.

No young person likes to feel imprisoned by the system – especially having done no wrong.

The law as it stands in relation to a case such as this does not allow the DPP to proceed without the Complainant appearing as a witness for the State. The only other witness of the events alleged is the accused himself, and the DPP has effectively determined that given this fact, the prospect of a successful prosecution before a jury properly directed is zero to remote.

Meanwhile, rightfully indignant commentators point to the Sexual Offences Act which says that corroboration is unnecessary in a case such as this – whilst failing to appreciate that corroboration relates to the evidence given by a Complainant – and thus corroboration is indeed unnecessary here because there is no evidence to be corroborated where there is no Complainant to give any evidence. This could have been very different.

An accused in Guyana is arrested as a suspect and, in relevant cases, interviewed by police on video which confirms his identity and records any confession he might make – sometimes following an unrecorded interrogation. Where the suspect is a person of some standing who attends the police station with his lawyer, there would be no confession on that video that might be admitted into evidence. The accused would be invited to give a Statement under caution that would be taken in longhand by a police officer, who would ask a few standard questions and write down the account, if any is given, of the accused. This too could have been different.

The law ought to be updated and the agencies currently charged with or having an interest in Dharamlall-type matters need to co-ordinate and not duplicate or present clashes of their efforts. The UK has a system of guidance published in 2002 called Achieving Best Evidence (ABE) that sets out what is good practice for video-recorded interviews with child witnesses. Such recordings, usually made on just one occasion, are intended to be played in court as Prosecution evidence, and are conducted by police officers specially trained in dealing with traumatized young persons – the objective being to elicit from the interviewee a full and free account of their version of the experience complained of. During such an interview, the child or young person will be accompanied by an ‘appropriate adult’ known to them – e.g. a parent, older sibling or friend of good character, or a social worker or probation officer – as well as their own lawyer! No confusion with a multiplicity of interested agencies making press noises and multiple sessions of questioning of the Complainant who can remain in protective custody for several days.

Another update to our law that could assist in a Dharamlall-type matter and would have general application to all accused persons would be to make the video-recorded interview(s) of every accused an event intended to do more than confirm identification and possibly a confession. The accused right to remain silent would have to be adjusted by an amendment of the Caution, to which will need to be added a warning that should the matter being investigated go on to trial, an adverse inference might be drawn against the interviewee who fails to mention in interview something which he later relies on in court. Investigating officers will be obliged to investigate properly so that they have appropriate questions to ask – knowing that the interview would be edited by joint agreement of Prosecution and Defence to produce what effectively would be the Defendant’s Statement. Police could conduct multiple interviews as evidence emerges from investigations, with the accused on bail, before charging when the evidence is sufficient to do so.

It is small wonder that the 16 year-old in the Dharamlall complaint decided not to continue to pursue the matter – for irrespective of any other factors that were likely relevant to her decision, she had undoubtedly become disillusioned with the process and could only see her trauma being exacerbated over time by the attention of the media – and especially the notoriously unfettered commentators on social media! Things could have been very different if our procedures governing criminal investigations generally, and investigations concerning complaints by children in particular, about sexual interference of any kind, were approached rather differently.

 

Yours truly

 

Ronald Bostwick

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