Gather evidence before charging someone
By Keino Swamber keino.swamber@trinidadexpress.com
This view was expressed by attorney-at-law and former minister in
the Ministry of National Security, Subhas Panday, in an interview with
the Express on Friday.
"They should have had evidence prior to laying charges against people," Panday said."They (the police) may have had information but information on its own may not be admissible and this cannot be used to arrest anybody because information can include hearsay which cannot be used as evidence."
Panday was asked to outline, from a legal perspective, the elements needed to secure a successful conviction under the Act. He said several pieces of legislation must be used."The most important one is the Interception of Communications Act 2010 which deals with intelligence gathering where, for example, if they decide to target a person, they first have to get permission from the Commissioner of Police, the Head of the Defence Force or the Head of the SSA (Strategic Services Agency).
"They then begin to tape (and) as they are taping they may get information that a person is going to do something. This can be used to go before a judge and an oral application can be made for a warrant to start recording for use as evidence. The evidence is called first-hand evidence and can be taken before a judge to say that the target (the person under surveillance) is a member of a gang."
Panday said because the Anti-Gang Act was proclaimed only on August 15, surveillance gathered before that date could not be used to charge and prosecute individuals. "The State of Emergency was declared on August 21 so, in the space of a week they could not really do any significant recording.
"What they did here is that they went to the Crime and Problem Analysis (CAPA) Unit of the Ministry of National Security and they concentrated on people who have pending matters and they sent the information to the police station to lock up from a side.
Panday reiterated his call for the Anti-Gang Act to be amended to make it compulsory for police officers to consult with the Director of Public Prosecutions (DPP) before laying charges against individuals suspected to being gang members.
"The Attorney General says there is nothing wrong with the legislation. The Attorney General is the legal adviser to the Government and he may know better than I do."
By Keino Swamber keino.swamber@trinidadexpress.com
THE failure of police officers to follow a fundamental principle
of criminal law, which is to gather evidence before charging someone,
played a significant part in several cases taken to court under the
Anti-Gang Act 2011 being discontinued without prosecution.
"They should have had evidence prior to laying charges against people," Panday said."They (the police) may have had information but information on its own may not be admissible and this cannot be used to arrest anybody because information can include hearsay which cannot be used as evidence."
Panday was asked to outline, from a legal perspective, the elements needed to secure a successful conviction under the Act. He said several pieces of legislation must be used."The most important one is the Interception of Communications Act 2010 which deals with intelligence gathering where, for example, if they decide to target a person, they first have to get permission from the Commissioner of Police, the Head of the Defence Force or the Head of the SSA (Strategic Services Agency).
"They then begin to tape (and) as they are taping they may get information that a person is going to do something. This can be used to go before a judge and an oral application can be made for a warrant to start recording for use as evidence. The evidence is called first-hand evidence and can be taken before a judge to say that the target (the person under surveillance) is a member of a gang."
Panday said because the Anti-Gang Act was proclaimed only on August 15, surveillance gathered before that date could not be used to charge and prosecute individuals. "The State of Emergency was declared on August 21 so, in the space of a week they could not really do any significant recording.
"What they did here is that they went to the Crime and Problem Analysis (CAPA) Unit of the Ministry of National Security and they concentrated on people who have pending matters and they sent the information to the police station to lock up from a side.
"You may have observed that only persons who have matters pending
or have convictions were locked up. The real people who are importing
and are really behind the scenes are not being picked up. That is why
they are only picking up these little peewats all over the place."
Panday reiterated his call for the Anti-Gang Act to be amended to make it compulsory for police officers to consult with the Director of Public Prosecutions (DPP) before laying charges against individuals suspected to being gang members.
"This will ensure that another layer of checks and balances is put in place to prevent abuse of people's rights."We would not have found ourselves in an embarrassing position
(had this been done). We could have filtered out all the cases which
had no evidence and those that had evidence we could have gone before
the courts and dealt with them quickly.
"The Attorney General says there is nothing wrong with the legislation. The Attorney General is the legal adviser to the Government and he may know better than I do."
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