Legal defenders legislation needed

THE EDITOR: According to newspaper reports of January 29, 2004 Mr Dhanraj Singh appeared in the San Fernando Magistrates’ Court on January 28 2004 to answer several criminal charges for fraud which had been laid against him. The reports also indicated that the matter had been adjourned for reasons put forward by the Attorney-at-law for the State. Before the adjournment however the defendant informed the Court as follows:-

1. He was ready to proceed on today 28.01.04.
2. He was representing himself.
3. He wanted copies of all statements of all witnesses as well as names and addresses of all witnesses due to testify on behalf of the prosecution.
The magistrate was blunt.
1. You are not entitled to have the matters heard today. There are several other matters listed in which men are on murder charges and are in prison without bail and are also anxious to have their matters completed. You are out on bail.
2. You are not entitled to the statements only to three that contains matters in your defence.
Without determining whether the learned magistrate was wrong or right in his advice to the defendant but surely he ought to have told the defendant:-

“Although you have indicated your intention to represent yourself in these matters I must inform you that these matters involve complex principles of Law and procedure and you should carefully and seriously consider being represented by Counsel and if possible by Senior Counsel. Alternatively if you are unable to afford Counsel you may yourself obtain the assistance of the Legal Aid and Advisory Authority who will provide you with an Attorney-at-Law free of charge.” Such a warning is vital at this stage because clearly and without knowing it what the defendant was in fact asking for was “full disclosure of all the facts to be used against him” and not the evidence by which such facts will be proved. And this brings me to another apparent lapse in government policies involving the Law.

When two months ago the Government appointed a Board to the Legal Aid and Advisory Authority after that organisation had been without a Board of Directors for some three months, the Government ought to have used that hiatus to establish a “Legal (or Public) Defenders De-partment” independent of the Government and headed by a Senior Counsel with suitable subordinate staff, office and with an appropriate budget. The head of the department will also be empowered to employ practising attorneys on an ad hoc case by case basis just as the DPP is also empowered to do. This department should report to Parliament.

The Legislation must go further and import into law a certain position of the Judges Rules example A suspect in a serious criminal matter cannot be questioned in the absence of an attorney-at-law, and he may only waive his right to Counsel in the presence of Counsel not in the presence only of a police officer as is the case now, and statements must be taken in the presence of a lawyer (or his representative) and must be tape-recorded at the expense of the suspect. Such legislation would reduce or indeed eliminate the frequent allegations by accused persons that the police “beat me to make me sign the statement” or that the statement was presented and not read to the accused who was told to “sign and you will go home” etc. Perhaps they will get it right with the assistance of the UNC.

ATTA K O KUJIFI
Attorney-at-Law