On solid ground

AG says advice sought before Evidence Act changes proposed

Controversial changes to the Evidence Act have been passed, but the Government has been warned to brace for Constitutional challenges.

The warning was issued by Opposition Senator Wilfred Abrahams, a former president of the Bar Association, who was the most strident voice on the issue which dominated the morning session of the Senate today.

Senator Wilfred Abrahams
Opposition Senator Wilfred Abrahams

“It’s a fundamental shift and it’s going to result in a lawsuit, a constitutional motion,” Abrahams told Barbados TODAY after the bill was debated in committee stage, and later passed.

“A travesty of justice has been done and it’s going to trample on the rights of people.”

As Abrahams strongly opposed the bill, he faced stiff challenges from Government senators Maxine McClean, who is the Leader of Government Business in the Senate, and Dr Esther Byer.

Senator McClean said she had sought expert advice on the matter.

Senator Maxine McClean
Senator Maxine McClean

“We can accept that the right to silence, which is an old right protected by the Constitution of Barbados which we all know to be the supreme law of the land, will be protected,” she argued.

“There has always been provision made to inform people . . . giving evidence of his or her right to remain silent and, indeed, the implications of remaining silent. This amendment, from my reading and from the explanations given to me, does not in any way change that provision.”

The two argued that the proposed legislation was fashioned after a piece of 1994 legislation in the United Kingdom.

And like the UK, the female senators contended, Barbados would pass the necessary regulations to ensure that the rights of accused people were protected.

“I am satisfied that that CPC’s (Chief Parliamentary Council) office, the police and all those persons involved have been very thorough in drafting this and in making provisions for this, so as to ensure that the rights of individuals are protected at every step along the way,” Dr Byer said.

But Abrahams was not comforted, stating that regulations were absent from some Acts that have long since passed.

“The public does not fully understand the implications of it. Why are they rushing it through?” he questioned.

“This turns the application of the right to silence on its head.”

After the vote was taken, a member of the Senate called for a divide.

In the end, 10 voted in favour, three were against the amendments, while two – Senators Tony Marshall and Alwyn Adams – abstained.

Government Senator Verla De Peiza, an attorney-at-law, who had raised concerns about the suggested change, was absent from the sitting.

In a separate interview with Barbados TODAY, Attorney General Adriel Brathwaite, also dismissed the argument that the changes would violate the constitutional rights of accused persons, and insisted that Government was on solid ground.

“If you read how the Bill is drafted, when a police is interviewing a suspect the first thing he has to tell him is his right to silence . . . The whole question though, is whether or not during the course of the interview there are matters that might arise that within his knowledge he should have disclosed to the police and did not and subsequently wants to use the information. Under these circumstances the court may or may not draw certain inferences,” he said.

“There is lots of case law on the matter. We did not just come up out of the blue and say ‘well this is what we want to do’. We looked at the case law, we looked at our own law, we looked at our Constitution to ensure that the provision does not in anyway abrogate the Constitution and certainly does not abrogate the individual’s right to silence.”


3 Responses to On solid ground

  1. Katrina P Lewis
    Katrina P Lewis January 17, 2015 at 1:55 am

    Thia has to be for their friends

  2. Tony Webster January 17, 2015 at 6:03 am

    There is no doubt that the Evidence Act requires much change. We are still in the Sherlock Holmes age where forensic science, and digital imagery and records, are concerned. Adrian Clarke (may he play peacefully at his heavenly piano), and I both came to that conclusion years ago, when he was Secretary to C.B.B. Struggling to store mountians of bank records, we both saw a “micro-fische” records solution, but the Evidence Act compelled us to just build more archive-vaults! I then (1980 or so) had asked him, to please speak to his legal Friends In High Places, and to bring the Act into the 20th century for the good of all.

    However, “an accused cannot live by evidence alone” (sorry), and there are crucial aspects of the application of The Law, and of jurisprudence in its highest and most exalted form. One of such cornerstones of court proceedings has always been to relegate circumstantial evidence to the lowest evidential rung, and for very good reason. Any presumption of guilt by silence- in any form- requires similar and resolute treatment. Any thin-edge-of-the-wedge contortions of this in the new Act will receive a sharp rebuke, either from our local courts, or from our C.C.J. friends.

    We could easily have returned this bill for further consideration, but I sense some wearinesss in Hallowed Halls. Perhaps the bug-bear is even more mundane: that fighting simultaneous and spreading fires… extracts a lot of effort, energy, and time…and these are now in “very limited supply”? Five will get you ten: a good Act, but with a nasty, ragged edge…which will be remedied, one way, or another.

  3. Olutoye Walrond January 17, 2015 at 8:00 am

    How could you write this story without citing at least the contentious section of the bill?


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