Chief Justice (ag) Roxane George last Friday awarded attorney Tamieka Clarke $700,000 in damages over her brief arrest by agents of the Special Organised Crime Unit (SOCU) on October 28 last year while advising her client and she has since received an apology.
The acting Chief Jus-tice, whose judgment was entered on Monday, also ordered Superintendent of Police Krishnadat Ramana, on whose orders Clarke was arrested and SOCU within seven days of her order to issue “an unequivocal apology” to the lawyer. They were also ordered that the apology was to declare their understanding of the right of an attorney-at-law to advise their clients to remain silent, and to engage with their clients in private, albeit they may remain in the sight of investigators.
A third order, according to the judgment shared by Clarke’s attorney Nigel Hughes, instructed the Guyana Police Force to within seven days of her order to issue a commitment to include in its training curriculum for all officers and ranks training on articles 39 (2) and 139 of the Constitution of Guyana, the Human Rights Conventions enshrined in the Constitution.
The lawyer is also to receive an additional sum of $250,000 to be paid on or before December 31st, 2023.
Should SOCU and the force fail to comply with orders two and three will result in Clarke being paid an additional sum of $300,000. They will also be held in contempt of court and could be liable for imprisonment.
In a letter dated yesterday and signed by Ramana, who was named the Police Commander for East Coast after the incident, and Assistant Commissioner of Police Fazil Karimbaksh, who heads SOCU, an “unequivocal apology for the unfortunate incident” was issued to Clarke.
“Upon a mature reflection and upon legal advice received, we recognize that there was a violation of both Counsel’s right to advise her client to remain silent and to engage with her client in private, though in the sight of investigators, and the consequential right of the client to receive and benefit from such advice.
“This error in judgment is wholly regrettable,” the two officers said in the letter.
On June 12th Justice George had found that attorney Clarke’s fundamental right to personal liberty was breached by the
She had cited Article 139 of the Constitution which deals with the protection of the right to personal liberty.
Justice George also ruled that the detention and seizure of Clarke’s cellular phone by officers of SOCU without her permission and without lawful excuse was wrong.
Based on the orders prayed for by Clarke, the CJ held that an attorney at law admitted to practice in Guyana is entitled to advise a client to remain silent when questioned by any lawful enforcement agency.
The judge had further ruled that an attorney at law admitted to practice at the Bar in Guyana is entitled to consult with his/her client in private without the contents of the consultation being recoded in any way including by means of audio-visual recording by any law enforcement agency in the Guyana or elsewhere.
As a practising attorney at law admitted to practice in Guyana, the CJ had said that Clarke is entitled to advise any person who has sought her counsel to exercise the right to remain silent when questioned by a member of any law enforcement agency in Guyana.
Clarke had testified before the court that she had been practising law for over seven years and had been retained by Leon Lespoir on October 25 and accompanied him to SOCU in relation to an ongoing investigation relating to him.
She said while there they met with Constable 23975 Shaquille Duke and was joined by Superinten-dent Ramana who indicated to her that he required Lespoir to provide a statement concerning the ongoing investigation and enquired about her client’s availability to provide the said statement. She said that they agreed to return on October 27, as requested, but also informed him that her client will be exercising his constitutional right to remain silent.
“Superintendent Ramana asked me if I was aware of what ‘obstruction’ meant, and he indicated to me that Mr Lespoir was compellable to provide a statement. Superintendent Ramana further indicated to me that if I prevented Mr Lespoir from providing a statement, he would arrest me, and that ‘Counsel may need Counsel’ on the said date,” her affidavit submitted.
On October 27, Clarke along with her firm’s senior partner Shaun Allicock accompanied her client to SOCU where they were informed by Sergeant 17955 Winston Singh that Superintendent Ramana was busy and were advised to return the following day. The same team returned on October 28, where a number of events played out.
“At the said location, I was informed by Mr Lespoir and verily believe that the police had provided him with a written statement and requested for him to sign it. I repeated my advice to Mr Lespoir about his right to remain silent and I informed Constable 23975, Shaquille Duke, that Mr Lespoir declined to sign the statement.
“I entered a room and enquired from Sergeant Singh, Constable Duke and Officer Navindra Persaud whether Mr Lespoir was under arrest. I indicated to them that Mr Lespoir was desirous of leaving the premises of SOCU and returning to work. Superintendent Ramana entered the room that I was in and he instructed Officer Navindra Persaud to arrest me,” she submitted.
Middle of the room
Clarke had further stated that she was instructed to follow Persaud into a room in the upper flat of SOCU’s Headquarters. She was placed to sit on a chair in the middle of the room after which Ramana entered to tell her that she was under arrest for obstruction and left. While in the room, she was in communication with Allicock via her cellphone after which it was forcibly taken away by Persaud.
At that time, she attempted to leave the room but was prevented from doing so by the two male officers who executed her arrest.
“A female rank that I had met at the gate when I entered the compound, Lance Corporal Alder, entered the room and sat in front of the desk by the door. I was wearing a Samsung Smart Watch that allows me to make and receive calls. I observed on my watch that I was receiving a call from my Attorney-at-Law, Mr C. A. Nigel Hughes, and I answered the call. I informed Mr Hughes that I had been arrested by SOCU and that I was upstairs. Officer Alder demanded that I hand over my watch and she attempted to take my watch from me,” the affidavit had stated.
Clarke had said that she attempted to exit the room again but was blocked by Sergeant Singh. She also requested the presence of her lawyers but no mind was paid to her.
Subsequently, attorneys Allicock, Everton Singh-Lammy and Jacy Archibald entered the room and Singh-Lammy requested Clarke’s phone from the officers who ignored him. Shortly after, Hughes attempted to enter but was prevented.
Singh-Lammy later left the room so Hughes could have access to his client.
“Mr Hughes entered the room and enquired from the Officers in the room about the charge and the particulars. Constable Duke indicated that he had to go and get instructions from his superiors. A few officers left the room and returned. One of the officers indicated that I was arrested for attempting to pervert the course of justice. Mr Hughes enquired from the rank what the particulars were, and the rank stated Mr Hughes would have to call his superior, Mr Karimbaksh, for that. Mr Hughes attempted to call Mr Karimbaksh on his cellular phone but was told that Mr Karimbaksh was busy at the time. Constable Persaud then entered the room and placed my phone on my lap. After a few minutes, I was told that I was free to go by one of the Officers,” Clarke said.
She had also said that the entire ordeal lasted just about an hour. Additionally, the lawyer said that she was intimidated by the presence of all male officers who were present in the room when she was arrested.
The move to arrest Clarke had sparked widespread condemnation from the local Bar Association and Regional and International Bar Associations as well.
Clarke was represented by Hughes, Ronald Daniels and Shawn Shewram.
The Director of Public Prosecutions (DPP) had recommended that no criminal charge be brought against SOCU officers over their detention of Clarke and private criminal charges against them were also thrown out.
