A high court judge has provided guidelines for police on detaining suspects under the Anti-Gang Act of 2018.
Justice Lisa Ramsumair-Hinds, in a written ruling on Friday, gave the guide as she refused to lift a detention order she granted for a policeman held on suspicion of gang-related activities.
The guide was for the police “who may wish to more confidently” make use of the opportunity under section 17 (4) of the act where they realise that 72 hours is an insufficient period of detention to adequately advance their investigation, secure evidence and seek the advice of the DPP in order to properly lay charges, the judge said.
She has advised, prior to seeking an order for continuing detention, that the police tell the suspect that under the act, they can lawfully be detained for up to 72 hours and that the police can make an application to a judge for a longer period of detention, not exceeding a maximum of 14 days from when the suspect was arrested.
“As far as possible, the investigating police officer should seek to conduct at least one interview with the detainee and any such interview should be recorded.
“This will allow the detainee to appreciate more fulsomely from the questions which are asked, the grounds for his arrest and detention.
She also advised that in the case of all detentions under the act, within the first 48 hours of arrest and detention, the police should be acutely sensitive to the need to conduct their investigation diligently and expeditiously.
She said when seeking an order, the police should only ask for a period of detention that is sufficient to conduct a diligent and expeditious investigation.
“The practice of routinely seeking the maximum possible period under section 17(4) without assessing the attendant justification is discouraged. It is maximum and not a target,” she said.
She also advised the police to immediately provide a suspect with a copy of any order for further detention, and details of the need for it to avoid technical objections.
“It may also be useful for the order to recite the relevant particulars concerning the precise times when the application was filed and the order granted.
“Police officers are encouraged to provide such disclosure that would not prejudice the ongoing investigation,” she said, referring to station diary extracts, a copy of interview notes, any utterance made by the suspect after arrest that has been documented to assist lawyers to determine if there are any grounds to seek to have the order discharged.
Ramsumair-Hinds had been asked by to discharge her orders for the two policemen held on February 22.
Police made an application on February 24 to have the men detained for a further 11 days, as they needed more time to investigate.
Ramsumair-Hinds considered the application without a hearing and in her order said there were reasonable grounds to believe the further detention was justified and the police investigation was being done diligently and expeditiously.
The police were given until March 8 at 11.40 am, to keep the men in their custody.
The two policemen were detained by the Organised Crime and Intelligence Unit (OCIU) at the Arouca police station after they returned from court. Their lockers were reportedly searched, their cell phones seized and their homes searched. Four lawyers are also being investigated by police.
On Tuesday, Justice Malcolm Holdip also ordered the further detention of a third person, a civilian, for a further 11 days. The detention order began on Wednesday, and will expire on March 10 at 7.30 am.
In her decision, Ramsumair-Hinds dismissed all the policemen’s grounds, saying in the particular application, the police presented “cogent pieces of evidence unearthed during extensive investigations” and needed to continue their probe to corroborate certain details.
She also said the Act envisaged some level of secrecy on the part of the police because of attendant risks to the public interest if sensitive information is prematurely revealed which may harm the police investigations.
The legislation was proclaimed by President Paula-Mae Weekes in May, of last year, and at the time the Ministry of the Attorney General and Legal Affairs said: “This act is one of several legislative measures that have been undertaken to buttress the criminal justice system and assist law enforcement in its fight against crime.”
The act was passed in the Parliament on May 4, 2018, and assented by the President on May 15.
The legislation was a source of contention between Government and the Opposition and had been defeated last December when the Opposition refused to back it because it did not approve of the four-year sunset clause.
After agreeing to a 30-month sunset clause, the Opposition supported the bill, which needed a three-fifths majority to pass. It was passed in the House of Representatives in March and one month later in the Senate.
Ramsumair-Hinds recognised that it was not the legislation’s “first ride to the rodeo,” as she pointed out, “the first time around, it was rather rough.”
“In its new dispensation, there have been considerable amendments all provisioned by the aggressive debates through the progression of the Bill to an Act of Parliament.
“It is instructive to bear Parliament’s intention in mind particularly when handling new legislation, especially where its predecessor was fraught with criticism.”
She pointed out that the courts were still engaged in litigation from attempts by police to use the previous legislation in 2011, but said where there was unquestionable grounds to suspect someone, “the court ought to be slow to second-guess the police."
"The simple fact is that a decade or more ago, the detention of men for 13 days without charge, would have been considered surprising, even shocking, the world has changed and Parliament has deemed it appropriate, in certain circumstances, for persons to be detained without charge for that sort of period," she observed.
“No doubt this legislation and its several implications cause trepidation in some quarters, and at the very least some unease about arbitrariness on the part of police officers.”
From October 2018 to last month, seven people were arrested and charged.