Bar not on board with amendments

The Bar Association is not in Government’s corner on amendments to the Evidence Act.

President Tariq Khan told Barbados TODAY that the association is not happy with provisions that take away the accused’s right to remain silent.

He said it was a right that has been enshrined in common law and people had come to expect.

“This bill seeks to, I suppose, bring Barbados in line with other jurisdictions, but in the Barbadian context, I am not comfortable that the right to silence be treated in the manner as proposed in the bill,” Khan said.

At the same time, the Bar president said he was not sure whether a constitutional motion on the matter would be successful if brought against the Government.

“Until it is tested . . . the judiciary would have difficulty, in my view, in seeking to overturn statute, if it indeed becomes statute. After all, that is the role of Parliament, that is the role of the legislature – to agree and to produce statute,” Khan said.

He cautioned that lawyers would face a challenge as they sought to defend their clients.

“Lawyers would have to review the way they advise their clients charged with criminal offences whether it is in their interest to remain silent,“ explained Khan.

2 Responses to Bar not on board with amendments

  1. Rawle Maycock
    Rawle Maycock January 17, 2015 at 1:58 am

    It’s just another way, you can be arrested an add charges against you even if the officer messed up .

  2. Tony Waterman January 17, 2015 at 12:36 pm

    The right to remain silent is a legal right recognized, explicitly or by convention, in many of the world’s legal systems.
    The right covers a number of issues centered on the right of the accused or the defendant to refuse to comment or provide an answer when questioned, either prior to or during legal proceedings in a court of law. This can be the right to avoid self-incrimination or the right to remain silent when questioned. The right usually includes the provision that adverse comments or inferences cannot be made by the judge or jury regarding the refusal by a defendant to answer questions before or during a trial, hearing or any other legal proceeding. This right constitutes only a small part of the defendant’s rights as a whole.

    CANADA:The right to silence is protected under section 7 and section 11(c) of the Canadian Charter of Rights and Freedoms. The accused may not be compelled as a witness against himself in criminal proceedings, and therefore only voluntary statements made to police are admissible as evidence. Prior to an accused being informed of their right to legal counsel, any statements they make to police are considered involuntarily compelled and are inadmissible as evidence. After being informed of the right to counsel, the accused may choose to voluntarily answer questions and those statements would be admissible.

    England and Wales:The right to silence has a long history in England and Wales, first having been codified in the Judges’ Rules in 1912. A defendant in a criminal trial has a choice whether or not to give evidence in the proceedings. Further, there is no general duty to assist the police with their inquiries. There may be no conviction based wholly on silence. Where inferences may be drawn from silence, the court must direct the jury as to the limits to the inferences which may properly be drawn from silence.

    France:In France, the French Code of Criminal Procedure (art. L116) makes it compulsory that when an investigating judge hears a suspect, he must warn him that he has the right to remain silent, to make a statement, or to answer questions. A person against which suspicions lay cannot legally be interrogated by justice as an ordinary witness.

    Germany:According to § 136 Strafprozessordnung (StPO, i.e. Criminal Procedure Code) a suspect, arrested or not, has to be informed before any interrogation about their right to remain silent. It is not allowed to draw any inference from the complete silence of the accused in any stage of the criminal proceedings. However, it is allowed to draw conclusions if the accused remains silent only to certain questions about the crime. Suspects cannot be heard under oath.

    Pakistan:Article 13 of the 1973 Constitution of Pakistan protects a person from self-incrimination.

    India:The constitution of India guarantees every person right against self incrimination under Article 20 (3)”No person accused of any offence shall be compelled to be a witness against himself”. It is well established that the Right to Silence has been granted to the accused by virtue of the pronouncement in the case of Nandini Sathpathy vs P.L.Dani, no one can forcibly extract statements from the accused, who has the right to keep silent, but only in the court of law. It is not clear if the accused can exercise his right to silence during interrogation by public servants. Interrogation nullify the validity and legitimacy of the Right to Silence.[18] But in 2010 The Supreme court made narco-analysis, brain mapping and lie detector test as a violation of Article 20(3).

    The United States of America: Has the Miranda Law, and Fifth Amendment to the United States Constitution

    If the new Amendments to the Barbados Evidence act does not follow the same path as the above mentioned International Jurisdictions, then i believe that a CCJ Challenge would be applicable, to settle the issue once and for all.


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