Poor police prosecution has resulted in the collapse of several cases in the Magistrates’ Courts; a disturbing reflection of inadequate training in the rules of evidence, poor investigation practices and corruption, a member of the justice system said.
The source who asked that his name not be mentioned told Stabroek News in a recent interview that there is poor and ineffective police prosecuting in the lower court. However, Crime Chief Seelall Persaud said in defence that one had to remember that the police prosecutors are not trained lawyers.
The justice system member explained that all matters are called in Georgetown in the Chief Magistrate’s Court and from there they are assigned to other magistrates. That court, it was pointed out, also deals with the issue of bail and assignment for trial in the lower court.
It was explained that many of the police prosecutors, who have to eventually handle trials (and in some cases preliminary inquiries) are not trained to be prosecutors. He said that these police prosecutors need to understand the rules of evidence in the different situations; admissible and inadmissible evidence; the need for re-examination and eliciting from witnesses what is necessary to prove the elements of the offence.
“Indeed many prosecutors don’t even know what are the elements of the offence they are prosecuting for example,” the source said explaining that for instance when dealing with break and enter and larceny, one has to prove breakage which would have facilitated the entry and by entering, the defendant stole articles so as to deprive the owner permanently of them and convert it to their own use and benefit. “A lot of prosecutors don’t know they have to prove these three things,” it was stressed.
The justice system member told Stabroek News that every offence created under the law has elements which a prosecutor has to prove beyond a reasonable doubt. “At all times if there are doubts the benefit goes to the defendant. There is the old maxim that it is better to free ten guilty men than to commit one innocent man,” the source stressed.
Noting that one can utilize the resources available in an optical manner, the source said this is not being done to the extent that these police prosecutors have failed to fulfil this basic function. The judicial function, it was noted is undermined because a case cannot be proven without witnesses.
“Our judicial system is based on evidential facts and when there is no evidence there is nothing to deliberate on. It has been observed that vital testimony needed to prove a case is never presented in court because of the shortcomings too in the prosecution’s case,” this newspaper was told.
The Guyana Power and Light stolen transformer and the Polar beer cases were cited as perfect examples of cases that collapsed owing to the shortcomings of the prosecutors.
“Judicial time is wasted by frivolous prosecutions and that is a reflection of the investigation,” the source said before stressing that “some prosecutors are handed a basket to fetch water.” Sometimes there is nothing to go with to get a conviction because the investigating rank had failed to do enough work to complete a proper file, the source said.
Factors
According to the source, there are several factors that have contributed significantly to the current state/quality of police prosecution and they need to be addressed urgently.
In Georgetown the Prosecutors’ Office, housed at the Brickdam Police Station, is responsible for notifying ranks and witness to attend court, but has failed miserably in its mandate. The source said that often when matters are called, the prosecution informs the court that a request was made to that office which is headed by a superintendent of police, for ranks as well as civilian witnesses to be summoned. The justice system member said that many times the prosecutors report that this has not been done even though requests were made several times. “The reason for this I believe is that there is no organisational structure that facilitates the smooth processing of these requests. I suspect this is because it is poorly staffed and managed,” the source said.
It was noted too that there is little or no investigative work done by ranks in that many charges are instituted based on a complainant’s report at the station. The source opined that this has to do with the quality of training the ranks would have received. “Training without constant monitoring and periods of evaluation will go to naught. Basic things they don’t know to do.”
There is also a high level of corruption in the force, the source said, adding that one of the reasons for poor investigation is that ranks take “pay off from criminal offenders and so they do not investigate or lay charges.” The victim is the one who suffers while the offender would have no fear of the law and would continue to commit offences.
The source said too that police ranks who go to court to give evidence are often unprepared or deliberately give evidence that is contrary to their written statements. “By the time they get to give evidence someone gets to them offering money. Lawyers pick up on this and discredit the witness.”
The justice system member told this newspaper that some police witnesses are unaware of basic things like the procedure in taking and tendering of a caution statement, the procedure in taking reports and making entries in the crime book, the occurrence book and the station diary and in recording oral confessions.
“It cannot be denied that one of the … reasons for poor prosecution is the element of corruption where it appears to the court on some occasions that the prosecution gives excuses for not bringing key witnesses to court.”
Recommendations
The source said that the current situation demands that the court prosecutors’ office be monitored more vigilantly. Those in charge should avail themselves to meet magistrates periodically to get feedback on how the proceedings are going.
“They need to visit the court and sit in randomly and watch what goes on so as to deal with the complaints and frustrations expressed by magistrates repeatedly in courts.”
The justice system member said that very often magistrates would bring issues to the attention of the prosecution with the hope that they are raised with the court superintendent and divisional commanders but “there is no guarantee that this is done”.
They need to review the training models for police prosecutors and evaluate whether the trainers themselves are competent, the source said, adding that one of the biggest obstacles in the prosecution of criminal offences is when ranks fail to appear in court when there is proof they were notified that they had to do so.
“When the court uses its cohesive power and issues arrest warrants even though these ranks are attached to station, they are not arrested which re-enforces the perception that policemen will not enforce orders against policemen. Therein you have a major problem.”
Not a lawyer
A lawyer told this newspaper, that in his mind the police prosecutors are doing the best they could in the circumstances. He noted though that they need more training because “one has to remember that they are not legally trained. They just do a police prosecutor’s course which I think needs to be upgraded.”
The lawyer, who did not want his name published, said police prosecutors don’t get to focus on their work because when they leave court they have take up other policing duties, they are not just assigned to court duties.
He opined that prosecutors should not be given basic police duties to do but should rather be allowed to concentrate on their court duties.
He said that a case being passed down to several prosecutors before its conclusion is a reason for weak prosecuting. He pointed out though that this situation is still no excuse for the way cases are sometimes handled, stressing that at the end of the day, they ought to be prosecuted properly.
Meanwhile, Persaud said cases are investigated and then sent to the Director of Public Prosecutions before charges are laid. He said that if the witnesses don’t go to court there are systems in place to summon them but sometimes they choose to stay away.
“The court can issue warrants and the court has not been doing this. That is what we hear and that is the reality,” he said.
Persaud later stressed that police are not trained lawyers and “I cannot say to what extent the state can afford to deal with that”. He added that similar issues exist in both developed and developing country, to a larger extent, the latter.
