A thousand indignities…

Nelson Mandela believed that he inherited “a proud rebelliousness, a stubborn sense of fairness” from his father.  He shared with millions of black and colored South Africans the anger born of “a thousand slights, a thousand indignities, a thousand unremembered moments…a desire to fight the system that imprisoned [his] people.” Are you aware that today, in Bermuda your son, your brother your friend; provided they’re from a specific neighbourhood, and they went to a certain school and they have on dark clothes are ‘suspects’ under the law? Not in the sense that by reason of the above criteria are always presumed guilty, but with the addition of one important ingredient; a firearms related crime just happened….

 

In 2010 the Firearms Amendment Act was passed in Bermuda. The amendment made it lawful to detain firearms ‘suspects’ for up to 31 days without being charged. This is an injustice against the Bermudian people as it deprives individuals of their liberty in contravention of our Constitution. It is also indirectly discriminatory in that the amendment inevitably makes it more likely that one segment of the community; young black males; is vulnerable to automatic detention based on their proximity to a firearms incident and the geographic location of their homes. This is supported by the fact that gang strongholds are in predominantly black neighborhoods. Consequently activity associated with gang lifestyle typically occurs in these areas. The apartheid system in South Africa was perpetuated by a formal legal system which did not provide substantive justice. It barred Nelson Mandela from his liberty as does; although not directly, the firearms amendment for Bermudians.

 

Originally Parliament wanted the amendment to permit detainees to be interrogated while in the proposed ‘extended’ detention. However, upon recommendation by our former Attorney General; then Bermuda Democratic Alliance MP Mark Pettingill this permission was removed due to its oppressive nature. This would have ultimately caused evidential issues as defence counsel for a detainee who was in ‘extended’ custody might apply to exclude interviews on the grounds that the detainee’s statement is unreliable. Instead, investigating Officers are now be able to apply for a “warrant of detention” during the first 72 hours after a person is arrested and, if successful, will be able to hold the person for 14 days. A second application for a further 14-day period will be allowed^[1] provided that the Bermuda Police Service is able to produce an affidavit with justification for further detention and without any charges. The reasoning for this amendment was to prevent suspects from interfering with or intimidating witnesses who are yet to be interviewed and from destroying evidence. It also is meant to allow the Investigating Officers sufficient time to obtain results from forensic testing.

Mr. Pettingill although seemingly unaffected by the existence of the provision now, at the time called the law oppressive and while his suggestions were appropriate and changes were made to make the law less ‘oppressive’ it is still in my view a problematic piece of legislation. At the time he stated that “There is a clear oppressive measure in here” and that “We are going to hold young men on the basis of allegation without charge. We are going to hold him for 14 days [initially] and say we had reasonable grounds because we understand he had a gun …. We will get gobbled up [by defence lawyers]”.^[2] The learned former AG was absolutely correct on this! It is possible for an investigating officer, witness, or even a shooting victim to be mistaken. Further to this it is not unusual for our young men to be labeled as ‘gang member’ or ‘associates of gangs’ based on the fact that they live on Parsons Road or because they went to Sandys Secondary. On this alone the legislature was ok to take away a man’s liberty. This is unacceptable and unconstitutional. The measure is comparable to anti-terrorism legislation abroad and some may well be of the view that we are being terrorized.  However our crime doesn’t fall into the same category as international terrorism. Its not even close. And our response ought to be proportionate.  This is the type of legislation that caused Apartheid South Africa to enter total chaos. Eventually our men will grow tired of constantly being singled out and labeled as the enemy, as the ‘them’ of our community and our fate will grow even dimmer.

 

According to the Honorable Premier; Michael Dunkley who as then Minister of National Security, since 2010 police have made 12 applications for warrants of detention without charge, all of which were successful. Eight of those cases resulted in convictions.^[3] He added that “The benefit of this section is seen in the ability of the police to interview witnesses who might otherwise be intimidated if a suspect is on bail and conversely, it disrupts the cycle of gang violence by keeping suspects safely out of circulation where someone has been shot or killed,”.  He has since reassured members of Parliament that “the police have exercised restraint and made good use of the provisions to apply for warrants of further detention.” He also stated that “All applications have been successful, having withstood the scrutiny of the Supreme Court”. With all due respect to the Honourable Premier speculative affidavits from police officers about who a young man is friends with are hardly ‘making good use of provisions’.  Any defence lawyer worth their own salt will have opposed an application for warrants of detention on constitutional grounds and also based on lack of evidence. In any other jurisdiction counsel might persuade a judge that further detention is not lawful without any real evidence. Yet the statistics suggest otherwise. Ultimately, the policy of the day and general public perception will influence the reasoning of the judiciary and the above mentioned statistics serve to make the general; unaffected, public feel as though something is being done to protect ‘us’ from ‘them’. But ‘us’ is ‘them’. What will they say when they are on the other side of the charges? When the ‘evidence’ or the lack of it just doesn’t seem to add up? and their son/brother/nephew/friend’s liberty is taken away because he was in the same class as a ‘known gang member’?

Up until now the law has not had any real casualties. However, this does not negate the fact that the practice is contrary to our rights. Rather than restricting a person’s liberty without substantial evidence to justify his/her detention, we should seek to ensure that the right leads are followed and that evidence is capable of meeting the standard for a charge and detention. This means work has to be done to improve/ reform investigative procedures by the police. We should also strive to meet more widely used guidelines for detaining and prosecuting suspects rather than lowering the evidence bar to ensure detention. Brown + dark clothing shooter. This cannot continue to be the test. If we continue with this way of thinking, we run the risk of detaining people who are uninvolved based solely on an allegation. The fate of the remaining four un-convicted men who were subject to the extension is not known, presumably because they are on remand and awaiting trial. Only time will tell what will come of this measure and the message that it sends to the most vulnerable segment of our community; our young men.

 

^[1] Firearms Act 1973

^[2]Strangeways, Sam. Govt. Amends New Firearms Detention Law. 5 June 2010. <http://www.royalgazette.com/article/20100605/NEWS/306059966>

^[3] Johnston-Barnes, Owain. Govt proposes to extend police powers. 2013. 16 December 2013. <http://www.royalgazette.com/article/20131206/NEWS/131209799>.

 

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