Dear Editor,
It is common knowledge that Dr. Ashni Singh and Mr. Winston Brassington were overseas when the charges of Misconduct in Public Office were filed against them in the Georgetown Magistrate’s Court. The summonses for them to appear in Court on the 8th of May 2018, at 1:30 PM, were only served at their respective addresses in Guyana around mid-day of the 7th of May 2018. These summonses were obviously not served personally upon them. Notwithstanding, they both appeared with their attorneys-at-law at the Court to which they were summoned, promptly at 1:30 PM. The Prosecution did not oppose bail. These persons have impeccable personal records and reputation; they are prominent in society; they have no criminal antecedents; as soon as they were summoned, though not personally and although they were on another continent, they appeared at the place, date and time when summoned. Once the Prosecution did not oppose bail, it means that the Prosecution was satisfied that the men were not flight risks.
The courtroom was packed to capacity. In the gallery were two former Presidents, a number of Members of Parliament of the People’s Progressive Party/Civic (PPP/C), a number of former Ministers of the PPP/C Government and an unusually large contingent from the press. During the proceedings, almost absolute silence permeated the gallery of the court. The accused persons were ushered into the dock and stood there, silently, throughout the proceedings. There was absolutely no ruckus or disorderly conduct at any time during the proceedings, either from the accused persons or anyone else. There was absolutely no evidence that there was any likelihood of such eventuality. The entire proceedings was conducted with an aura of sobriety and in an environment of quietude, which the occasion demanded. It is against that backdrop, that I wrote the following, two weeks ago, about what transpired after the court proceedings.
“What followed next convinced the objective by-stander that extraneous influences were at work. Every day, persons of no known profile pass through the very court system without being handcuffed, and moved from the upper flat to the lower flat of the Magistrate’s Court building without resorting to the infamous chute; nor are they placed in the “holding cell” while arrangements are being made for their bail to be lodged. However, these facilities were not extended to a former Minister of Finance, who served in that capacity and in the National Assembly of Guyana for almost a decade! Singh and Brassington, for absolutely no good reason, were handcuffed and transported through the chute, making them available for the flashing cameras of the large contingent of reporters present. It was simply done to humiliate, degrade and publicly embarrass them.”
Just one week after, I was vindicated. A young lady charged with attempted murder of a Police Officer with the use of an unlawful firearm and who was remanded by the Magistrate, was not handcuffed. This is so despite the fact that she is alleged to have committed a violent crime and was obviously viewed by the court as a flight risk, hence her remanding to prison. Photographs of her being escorted by the Police to the court lock-ups showed that she was not handcuffed. I submit that the decision not to handcuff her was a correct one in law. On the contrary, the decision to handcuff Singh and Brassington was unlawful.
Section 202 of the Criminal Law (Procedure) Act Cap 10:01, Laws of Guyana provides that: “A person arrested, whether with or without warrant, shall not be handcuffed or otherwise bound except in case of necessity, or of reasonable apprehension of violence, or of attempt to escape or to rescue, or by order of the Court or a judge, or of a magistrate.” This provision appears in identical form as Section 76 of the Summary Jurisdiction Act Cap 10:02. In the pre-eminent Practitioners Manual, Blackstone’s Criminal Practice 2018, Section D, para 1.8, under the caption, “Use of handcuffs” it is stated: “Handcuffs should be used only where they are reasonably necessary to prevent an escape or to prevent a violent breach of the peace by a prisoner (Lockley (1864) 4 F & F 155). The same rule applies to the handcuffing of prisoners in court (Cambridge Justices, ex parte Peacock (1992) 156 JP 895; Horden [2009] 2 Cr App R 406). It would seem that, where handcuffs are unjustifiably resorted to, their use will constitute a trespass even though the arrest itself is lawful (Taylor (1895) 59 JP 393; Bibby v Chief Constable of Essex (2000) 164 JP 297).”
In Ramsarran v Attorney General (2001), High Court, Trinidad and Tobago, R, a well-known businessman, who had voluntarily turned himself over to the police, was handcuffed to a rail. Moosai J pointed out that the alleged offences for which R had been charged were summary offences, and s 109 of the Summary Courts Act, Ch 4:20 (Laws of Trinidad and Tobago) provides that a person arrested shall not be handcuffed except in cases of necessity, or of reasonable apprehension of violence, or of attempt to escape, or by order of a court or magistrate. None of these circumstances were present in this case, and the act of handcuffing amounted to oppressive, arbitrary and unconditional conduct warranting an award of exemplary damages.
It is clear that the handcuffing of Singh and Brassington was unlawful and most likely they are entitled to exemplary damages. The lawsuit will follow soon.
Yours faithfully,
Anil Nandlall
