Dear Editor,
I refer to page 6 of the Kaieteur News of November 6, under the caption ‘The world is watching police investigation – APNU.’
The part of the article in relation to “investigation” is reported to have been stated by Mr Joseph Harmon, attorney-at-law and General Secretary of APNU.
I hold no brief for the Attorney General. I am not a member of any political party and even through the language used by the Attorney General leaves much to be desired, as a practising attorney-at-law I think it is my duty to the public to give my opinion on what is and what is not a ‘threat’ for the purposes of the law.
At common law in England which was received in British Guiana (now Guyana) there is no offence of threatening language or threatening behaviour. The use of a threat in England amounts to the offence of ‘assault’ if certain elements are present.
For an assault to be committed in England there must be some act done or words spoken by the person accused. There cannot be an assault by omission in England.
To constitute an assault in England a threat must be issued by the accused to the victim and the victim must apprehend immediate and unlawful personal violence.
It follows, on the assumption that a threat was issued by the Attorney General (an assumption which cannot be validly made) it amounts to a threat that someone may do harm some time in the future and therefore cannot amount to an assault at common law (Stevens v Myers (1830) 4 C and p 349). Further, the Attorney General did not say he would do any harm.
Since an assault is any act or words by which a person intentionally causes another to apprehend immediate and unlawful personal violence it cannot be committed on a person if that act or the words are not done or communicated to that other person directly.
Guyana’s criminal law does not recognize the offence of ‘battery.’ In England ‘battery’ is an offence. Instead under Guyana law in two principal criminal statutes, Chapter 8:01 and 8:02, the offence of assault is only committed where there is physical contact, however slight, by the assailant upon the victim.
In Guyana the equivalent to the English assault is threatening language or threatening behaviour by virtue of Section 141 (a) of the Summary Jurisdiction (Offences) Act, Chapter 8:02. Threatening behaviour does not arise in Mr Nandlall’s case.
It is obvious that for the offence of threatening language to be committed under sub section (a) there must be proof which would satisfy the ingredients of the offence of assault in England. In other words the threat must be communicated to the person threatened directly and in his presence and not through a third person, in this case the reporter. It is clear that no threat was issued to Mr Glenn Lall directly.
Additionally, as far as threatening language is concerned, the sub-section creates two distinct offences: firstly threatening language with intent to provoke someone to commit a breach of the peace and secondly threatening language whereby a breach of the peace may be occasioned.
My opinion is there cannot be a ‘provoking’ unless the threat is issued to another in a face-to-face situation, neither can a breach of the peace be occasioned unless the threat is similarly issued. A threat to A through B does not amount to an offence.
In the circumstances, there could be no allegation that an offence was committed by the Attorney General that the police should investigate nor can the Attorney General be questioned by the police since no offence is alleged to have been committed by him.
It is noteworthy that a person ‘invited’ by the police to accompany them to a station is under no obligation to do so.
The police can take a person to the station only by arresting him. For an arrest to be made, certain conditions, which do not exist in the instant situation, must be present. Otherwise, the arrest would be illegal.
No amount of partisan political aversion can render what is not criminally unlawful a crime, or, more particularly, an ominous warning of a criminal threat.
Those who are interested are referred to R v Zwicker (1938) 1 D.L.R. 461, Bryan v Robinson (1960) 1 W.L.R 506 and Kendall v Khan (1979) 26 W.L.R 433.
Yours faithfully,
Murseline Bacchus
