Know Your Rights

In many Caribbean territories there are legal mechanisms for investigating allegations of serious police misconduct. Unfortunately these mechanisms do not always yield results for the average citizen. 
 
It is therefore important to educate our communities about the right of each individual to seek redress for police abuse from the courts.
I was arrested

1. WHAT IS AN ARREST?

An arrest occurs whenever you are prevented from leaving a particular place or you are forced to go to a particular place. The police officer does not have to say “you are under arrest” for you to be arrested. If he physically holds you thereby controlling your movement that is an arrest. If he uses words which you understand to mean that you have no choice but to obey, such as “go to the police station”, that is an arrest.

A good way to determine whether you are in fact under arrest is to ask the police officer “can I please leave”. If you are told that you cannot, you are under arrest.

2. CAN I BE ARRESTED?

This generally depends on three things: 1. Whether there is a warrant for your arrest, 2. The type of offence that the police suspect that you committed, and 3. Whether you committed the offence in the presence of a police officer.

Warrant

If there is a warrant for your arrest you can be lawfully arrested.

Type of offence

Criminal offences fall into two categories: Summary offences, which are less serious and can only be heard before a District Magistrate and 2. Indictable offences, which are more serious and can be heard before a Judge and Jury.

If you commit a summary or indictable offence in the presence of a police officer, he has the power to arrest you.

If you commit a summary offence but not in the presence of a police officer, you cannot be arrested unless he first obtains a warrant.

Some common summary offences are: obscene language, resisting arrest, minor assaults.

Examples of indictable offences include: possession of drugs, trafficking of drugs, robbery, sexual offences.

3. HOW LONG CAN THE POLICE DETAIN ME BEFORE I AM CHARGED?

There is no stipulated period. The police may only detain a person on enquiries for a period of time that is reasonable in all the circumstances. In other words, they may only detain you if that detention is necessary in order to fulfil some legal process, such as conducting an identification parade or interview.

The police have a duty to justify your detention on a minute by minute basis.

4. AM I ENTITLED TO BAIL?

All citizens have a constitutional right to bail. Bail can however be refused in certain circumstances, depending on the type of offence you are charged with.

Murder

You cannot obtain bail for murder.

Summary offences

If you cannot be brought before a court within 24 hours, the police must consider granting you bail at the police station (referred to as “police bail”). Police bail must be granted unless the offence is of a serious nature.

Indictable offences

You may be granted bail at the police station by a Justice of the Peace. The police are not entitled to interfere with the discretion of the Justice of the Peace to grant bail. If the police refuse to contact a Justice of the Peace for you, your family will need to contact one on your behalf and ask them to attend the police station.

5. WHAT IF I AM UNLAWFULLY ARRESTED, DETAINED FOR LONGER THAN NECESSARY OR REFUSED BAIL WITHOUT CAUSE?

You may have a claim against the State for unlawful detention or a constitutional claim for deprivation of your rights.

6. WHAT SHOULD I DO NOW?

There are avenues of obtaining information such as making a Freedom of Information Act request. The form is available here.

The more information you have regarding the police officers you interact with and the circumstances of your detention (such as the place of detention, times etc), the easier it will be for you to prove your case. You should try to make a note of the necessary details as soon as possible.

I was charged

1. I HAVE BEEN FALSELY CHARGED, WHAT CAN I DO?

There have been many cases of fabrication of charges by the police, but unfortunately you need to wait until the charges are dismissed by the criminal court before you can bring a civil claim (called a malicious prosecution claim) in order to obtain compensation.

In the meantime, it is important to preserve any evidence you may have that proves your innocence. Any camera footage, telephone records or other documentary evidence which proves that the charges are false will be crucial in both your criminal and civil trials.

You should also consider making a complaint to the Police Complaints Authority.

2.  MY CHARGES HAVE BEEN DISMISSED, CAN I BRING A CIVIL ACTION?

In order to succeed in an action for malicious prosecution you will need to prove two things – 1. That the police did not have enough evidence to charge you, and 2. That the police had a malicious motive (in other words, there was some improper motive for the charge).

An action for malicious prosecution is relatively straightforward once you are able to prove fabrication of evidence by the police, such as the planting of contraband, invention of a confession or obvious lies on oath. It becomes more difficult where you are unable to pinpoint some specific action by the police which shows a deliberate intention to mislead the court.

Mistakes or ignorance of the law on the part of the police will not be sufficient.

3.  WHAT CONSEQUENCES WILL THE POLICE OFFICER FACE?

Malicious prosecution claims are civil proceedings so there is no possibility of the judge imposing a jail sentence. There is a possibility that the judge may recommend that the judgment be sent to the Commissioner of Police which may result in disciplinary proceedings against the officer.

4. WHAT SHOULD I DO NOW?

There are avenues of obtaining information such as making a Freedom of Information Act request. The form is available here.

The more information you have regarding the police officers you interact with and the circumstances of your criminal charge (such as the nature of the charges, dates, times etc), the easier it will be for you to prove your case. You should try to make a note of the necessary details as soon as possible.

I was beaten by police

1.  ARE MY INJURIES SERIOUS ENOUGH?

Any touching of a person without lawful justification is a battery which you can obtain compensation for in court. For example, if a police officer touches your arm in order to direct your movement, but he has no grounds to arrest you that would constitute a battery.

2.  I HAVE INJURIES, WHAT SHOULD I DO?

You should immediately visit a hospital or private doctor for an examination of your injuries. You can also take photographs of any visible injuries.

4. WHAT CONSEQUENCES WILL THE POLICE OFFICER FACE?

In a civil battery claim there is no possibility of the judge imposing a jail sentence. There is a possibility that the judge may recommend that the judgment be sent to the Commissioner of Police which may result in disciplinary proceedings against the officer.

5. WHAT SHOULD I DO NOW?

There are avenues of obtaining information such as making a Freedom of Information Act request. The form is available here.

The more information you have regarding the police officers you interact with and the circumstances of the battery (such as the name/regimental number of the officer who beat you, dates and times etc), the easier it will be for you to prove your case. You should try to make a note of the necessary details as soon as possible.