ATTORNEY Fareed Ali, who is representing the interests of two men detained in connection with the Malabar double murder, yesterday said the police may have too much power when it comes to deciding how long a person remains in custody without charge, while a matter is being investigated.
Saying police are overstepping their boundaries in terms of how they deal with civilians in their custody, Ali complained that this clients, held for the murders of Videsh Subar, 13, and his care giver Hafeeza Rose Mohammed, who were both found with their throats slit, have not been given their basic rights such as food and baths.
“They have been in custody since last Wednesday. When police keep people in custody for seven to 15 days, they should be getting permission from the courts on a daily basis to keep them in custody,” Ali said. He added the law states a suspect can remain in custody for, “a reasonable period.” The thing is, it is left to the discretion of the police to determine this ‘reasonable time’.
Once a lawyer has a problem over the length of time his client in custody, the only recourse he has is to file a writ of Habeas Corpus in the High Court, as was done last week which led to suspects being ordered released by a judge when they were held but not charged for the kidnapping of Puff n’ Stuff bakery owner Gregory Laing.
“A ‘reasonable time’ in this country has not been defined. Some people are in custody for two weeks and because they have no lawyer or the lawyer has filed no writ, the police remain unaccountable to anyone for what they are doing,” Ali said, reiterating that even while in custody, a suspect remains a citizen with certain rights.
Asked if his clients are fearful for their lives, Ali replied, “They always have a fear for their lives and they are not being given access to basic needs such regular food, baths and light. They are basically in a room within a room...so they don’t know if it is night or day.” He said his clients have not been charged for anything, but remain in custody.
“TT is in dire need of legislation governing how persons brought into police custody ought to be treated by police and the procedural steps to be followed in interrogating them. The only document that speaks to the manner in which police may handle arrested persons are the Police Standing Orders.
“The latter is a defunct set of guidance couched together in a module that makes reference to arrested persons having the right to access to an attorney, but not making it an offence by the police to deny arrested persons immediate access to the same legal representation,” Ali said.
Under law, a suspect can be held by police for up to 48 hours without being charged. However, once it is established that the police have reasonable cause based on evidence, the police could be granted a longer time in which to continue their investigation before they charge a suspect or release them.
“The Privy Council, our highest Court of Appeal, recognises the British legislation -- Police and Criminal Evidence Act which has been in existence since 1984, in the United Kingdom. The latter speaks to persons having the right to legal representation and the consequences for denying immediate access to an attorney,” Ali said.
Ali said the underlying issue was accountability by the police and justification for the course of action they undertake when treating with suspects.
“There is a mindset that TT is a lawless society. There may be truth in this comment at first glance, but the responsibility to make TT law abiding is not that of the Police Service as a body. A law abiding society obeys the law because it recognises the need to behave in a manner that does not violate its fellow citizens, not that it will obey the law borne out of fear for the consequences of not obeying,” Ali said. “The argument that the Police Complaints Authority and Police Professional Standards Bureau are there to manage the posture police adopt in treating with our citizenry, is a weak one,” Ali insisted.
Attorney Israel Khan, SC, agreed that there ought to be checks and balances in how police conduct themselves especially as the State could be left open to civil lawsuits. However, he cautioned that all complains and allegations made by detained persons first must be investigated thoroughly before conclusions and follow up actions could take place. “If they are deprived of meals and baths, later on they can sue the State. But these are allegations that first have to be proved. Everyday when police arrest someone, that person complains about the food, about not being able to see their attorney, about police brutality....they always complain, but that has to be investigated,” Khan said.
Khan said Ali could make a complaint to the Police Complaints Authority and then bring an action for civil wrong committed against his clients, because all people are presumed to be innocent until proven otherwise by the courts.
Ali said he knows the nation “wants blood” for the Malabar murders, but the fact remains that the heinousness of the crime should never determine how police treat with suspects.
“Through the years my complaints about police ill treatment of my clients while being investigated were met with unsympathetic responses from our national community. The successful prosecution of the alleged criminals in this country at the High Court is abysmal. The reasoning behind the failure of the DPP’s office to successfully prosecute is directly linked to police procedural approaches to investigation and their mismanagement by ill treating persons in custody,” Ali said.
“I agree criminals are deserving of punishment but, ‘all are innocent until proven guilty’, must be a rule that stands in a society that respects law and order. The hypocrisy of TT is citizens crave lawful police action when they are personally affected. There is no respect for the presumption of innocence and the rule of law. Until that is addressed, incidents like the Malabar murders will prevail with unabated intensity,” Ali said.
Extension: police don’t care what he says