CoP's arrest was legal but immoral

ISRAEL B RAJAH-KHAN SC

IT APPEARS from information in the public domain that investigators probing Commissioner of Police Erla Harewood-Christopher on the allegation of misbehaviour in public office in late 2023 were in contact with the Director of Public Prosecutions and were requesting legal advice and guidance.

And so as the current imbroglio unfolds, the country is anxious to hear whether the DPP had advised the investigators to arrest the CoP under Rule III of the Judges Rules or if the investigators did this on their own volition, and then went to the DPP for advice as to whether they should charge the CoP.

It is my considered view that the investigators should have invited the CoP to a Rule III interrogation. It was wicked and scandalous to arrest the CoP in the situation she found herself. It seems it was intended to humiliate and embarrass her and bring her to her knees.

And you know what, the police are entitled under the law to do this wicked act. And if that could be done to the supreme head of the police, it could be done to a sitting prime minister or attorney general or minister of national security. Yes, no one is above the law.

Be that as it may, when the investigators went to the DPP for advice on whether they should institute criminal charge, he directed/ordered them to release the CoP and seek further specific evidence: and thus our commissioner was released from custody pending further investigation.

What the public wants to know is if the CoP was not authorised under the Firearms Act to issue the import permit to gun dealer Luke Hadeed, to sell same to the SSA, why did the Ministry of National Security pay him for the guns?

What the public wants to know is if the CoP committed the criminal offence of misbehaviour in public office, whether it was committed as a result of a genuine mistake or misunderstanding (Rule 7:21, Code for Prosecutors).

And what I and many others want to know is whether the CoP was duped by a high government official to sign off on the import permit for the rifles, which were being purchased for the SSA, and hence if it is true the Ministry of National Security paid Hadeed for the guns, why is the Minister of National Security not also a suspect is this sordid mess?

PSC suspension order

The Police Service Commission (PSC) is empowered to send the CoP on administrative leave pending the outcome of the investigation. It would have been highly irresponsible and thus a dereliction of its duty if it did not suspend her and thus allowed her to exercise enormous power over her own investigation by her subordinate investigators.

It is quite clear under the law that if there is any reason a CoP is unable to properly and legally perform her/his duty, the PSC is legally entitled to direct/order that they take administrative leave with full pay.

And if the commissioner is being investigated and she has been so informed under Rule III of the Judges Rules that the investigators are in possession of evidence which could result in her being charged and she is under arrest for interrogation, this is a good, reasonable, proper and sensible ground to send her on administrative leave.

Power of the DPP

There is an established Code for Prosecutors which has been in existence since March 26, 2012. It was published by the Joint Partnership Project Justice Programme funded by the government of Canada. And DPP Roger Gaspard played a significant role in drafting and putting this code into effect for TT’s prosecutors.

And Gaspard must adhere to his own Code for Prosecutors and lead his department by example, specifically in relation to the probe of the CoP.

Key aspects of code

I hereby inform the TT citizenry of relevant aspects of the Code for Prosecutors, so that the public will be able to appreciate and understand the DPP’s role. Thus the following:

* A prosecution must only be brought for a good cause. No one should ever be prosecuted simply because he or she may have committed an offence (Rule 3.1).

* The decision whether to prosecute is among the most important decisions the prosecutor has to make. Great care must be taken in each case to ensure that the right decision is made.

* A wrong decision to prosecute, as well as a wrong decision not to prosecute, may have the potential to undermine public confidence in the criminal justice system. There is little margin for error (Rule 3.2).

Impartiality of DPP’s Office

The DPP must be fair, independent and objective: a decision of whether to prosecute must not be influenced by:

I. The personal feelings of the prosecutor concerning the offence or the suspect.

II. The race, religion, sex, national origin or political association, activities or beliefs of the suspect or any other person involved.

III. Possible political advantage or disadvantage to the government or any political party, group or individual (Rule 4.1).

The learned DPP, in his written introduction of the Code for Prosecutions, stated, and it is very instructive in the instant matter:

“The decision of whether or not to prosecute an individual is a most important one…Great care must be taken by those who decide these issues, always remembering that the wrong decisions may destroy lives and undermine confidence in the criminal justice system.

"A decision to prosecute should only be taken after the evidence and surrounding circumstances have been fully considered…prosecution decisions are often controversial and the prosecutors must have the strength of character to resist criticism from whatever quarter. No matter how stringent or painful.

"The judgement of the prosecutor on a case must never be overdone by political, media or public pressure. The profession of the prosecutor is an honourable one and is not for the faint-hearted.”

In the public interest

not to prosecute CoP?

Code 7.1 for prosecutors states prosecutors should only decide whether to prosecute after the investigation has been completed and after all the available evidence has been reviewed…

Prosecutors must be satisfied that a realistic prospect of conviction exists (Rule 7.4). And if the offence was committed as a result of a genuine mistake or misunderstanding, a prosecution is less likely to be required (Rule 7.2).

In all the circumstances of this case, it was not necessary to arrest the CoP, keep her under arrest at police stations for two days. Someone wanted to embarrass her, humiliate her, if not completely destroy her. Nevertheless, it was a legal arrest, but I loudly say it was immoral having regard to the circumstances of this case.

And I am of the firm opinion that the PSC, having regard to the entire circumstance surrounding her arrest, was entitled to send her on administrative leave and trigger the process of putting an acting commissioner in place pending the outcome of this criminal investigation.

The entire country thus anxiously awaits the DPP’s advice to investigators on whether to charge or not charge our CoP.

Israel B Rajah-Khan SC is president of the Criminal Bar Association