Dear Editor,
All this hullabaloo about the Dharamlall case! In reality, it is only the public profile of the accused that has made this a story. Politicians in the Southern Hemisphere have no tradition of resigning in the face of allegations of impropriety and Guyanese are no exception. The tradition is no longer strictly adhered to in Northern Hemisphere Democracies today either! An accused person faces allegations in respect of which he is presumed to be innocent, as a matter of law, until or unless subsequently proven to be guilty by a court. The court of public opinion is not a court of relevant jurisdiction in this regard.
The court of public opinion has become dreadfully significant in today’s social media-dominated world. Everyone has an opinion – mostly emotional – then there are the politically driven pundits in the context of anything Guyanese. A lawyer would understand the concept of innocent until…and that every accused person has a right to be represented by a lawyer. I saw a video of a vocal gathering of women protesting outside Nigel Hughes’ Chambers, pleading with him to withdraw his representation of the accused. Mr Hughes went outside to meet the gathering and explained his position as a lawyer instructed, reassuring them that he is still the lawyer they can call upon at any time whilst emphasizing that the system must work. I would have done likewise.
The system can do with two easy tweaks that could prove very useful. The system is outdated. It was devised before the advent of video recording facilities, mobile phones and social media. There is no reason why an accused person should be video interviewed almost cursorily by police with no apparent trial-focused purpose, then be invited to give a Statement under Caution, laboriously written in longhand by a police officer. The interview should be conducted by officers who are alert to its contents being subsequently edited by mutual consent of both DPP and Defence for likely presentation before the court, as the charged Defendant’s Statement. The Defence might in some cases want some bad lines of police questioning be not edited out. The accused who exercises his inalienable right to remain silent, may have to contend with the court drawing an adverse inference should he say in court what he could well have stated in interview.
The other tweak would be to make it mandatory that neither the police nor any NGO may interview a child under the age of 18 (incidentally the age of consent in Guyana is 16) without an ‘Appropriate Adult’ being present throughout. The law would prescribe who can be considered an appropriate adult in certain special circumstances, like allegations of sexual assault and domestic violence, however for most other cases an appropriate adult might be someone over the age of say 21 who is known to the child and is of good character, or a serving probation officer. In my opinion, such a system tried and proven in the United Kingdom, would be infinitely better than the cumbersome ‘Safeguarding Policy’ proposed by the Guyana Human Rights Association (GHRA).
What has happened in this case was mass confusion. With social media having responsibility to nobody, the posters went wild! Various interest groups then began jockeying to have their say with a view to dictating the agenda, proclaiming the best interests of the child whilst by their very actions only adding to the trauma that caused her to lodge the complaint in the first place. One interested party on social media appeared to express concern that maybe a confrontation had not been held! The GHRA, having listed several factors that inhibit rape complainants, including fear of publicity, impact on marriage prospects and fear of cross-examination, concluded that these factors have the cumulative effect of trauma in victims primarily – yet astonishingly insists that public interest considerations point heavily in support of the need for a trial.
What has emerged out of the confusion is a seeming consensus of concerned pundits that the young complainant, already fed-up and traumatized after 2 weeks effectively in custody (quite unlike the fate of the accused who was duly granted bail) ought to be traumatized even more by being forced to await and attend a criminal trial about her sexual activity, as star witness for the State. I take the opposite view. The young lady’s decision not to continue with her complaint must be respected. She would prefer to erase from her memory, rather than indelibly imprint, the facts she complained of. We will not know exactly why her about turn – and there could be multiple possible reasons – but I think it is safe to surmise that what she needs now is quiet counselling for her personal healing, and not the awful prospect of again being in the full glare of both the national press and social media in the runup to a noisy trial several months away.
Making the first interview of every Defendant an event of evidential relevance, and the introduction of an easy-to-administer ‘Appropriate Adult’ system, will go a long way towards addressing some of the important practical issues that have surfaced in this case. Whatever the system, it must be allowed to work.
Yours truly
Ronald Bostwick
