Dear Editor,
The father of a teenager – one of a family resident in Sophia – called to seek advice as to the legality of his son being accosted by ‘Black Clothes’ police, on Wednesday, May 9, 2012, for being in possession of a cell phone, and requiring the young man to produce a receipt therefor, or otherwise have it confiscated. Fortunately, as he lived just across the road from the ‘hold-up,’ the young man was able to go home and retrieve the receipt, and so satisfy the demand of these ‘lawmen.’
Because of costly previous recent incidents of harassment which this law-abiding Rasta father and family had experienced, and had been related to the undersigned, the former pleaded with me to find out what was the relevant law which required, as emphasised by the ‘Black Clothes’ personnel, the user of a cell phone always to carry the related receipt on his/her person.
When one considers the numbers of cell phone users who could be vulnerable to this type of imposition, it would be a most welcome public service if your institution could enquire of the relevant authorities of the validity of this requirement and publish the advice received for general information.
Yours faithfully,
E B John
Editor’s note
We sent a copy of this letter to Mr Timothy Jonas, President of the Guyana Bar Association for any comment he might wish to make, and received the following response:
“While Mr John’s letter speaks to a specific incident, it raises a wider question of the functions of the police, the powers which are given to them to carry out those functions, and the delicate balance which is required in the proper exercise of those powers.
“Police function
“First, an effective police force is a necessary tool for the state to protect its citizens against crime and the breakdown of the rule of law. A criminal is willing by violence or stealth to break the law and harm our citizens for his own selfish means. That willingness to break the law gives him an advantage over law-abiding citizens, who have little defence apart from the protection and service of an efficient police force.
“Second, since few crimes are committed in the view of a police officer, the police must be empowered to investigate crimes, and to bring suspected offenders to the court for trial. In order to investigate crimes, the police must be able to seize property used in crime, to search the house, car and person of those involved in crime, and to arrest those persons to take before the court for trial. Without those powers, the police force would be useless.
“Police abuse
“Of course, when a heavy handed police force without just cause begins to use its power to search/arrest innocent people or search their homes and cars, or (worse) with corrupt motives to intimidate/harass innocent people by the threat of search and arrest, one begins to ask whether dealing with the police is not more trouble than dealing with the thieves. The police need to tread a delicate balance between enforcing the law, and respecting private rights, recognizing at all times their primary function of protecting and serving the public.
“The magic formula – reasonable cause to suspect
“The magic formula which Parliament has conjured to guide this balance is the ‘reasonable cause to suspect‘ test. The Police Act gives the policeman power to arrest ‘any person whom he has good cause to suspect‘ of an offence. The Act permits a policeman to search your vehicle if he has ‘reason to suspect‘ criminality in the use of the vehicle. The power to search your house (without a court order) is similarly restricted. The Narcotics Act permits such a search only where the member of the police force has reasonable cause to believe narcotics activity is going on there, and reasonably believes that the delay in getting a court order will allow the culprits to escape.
“Whether ‘reasonable cause to suspect‘ exists in a particular situation depends on the circumstances. It may be reasonable, for example, to detain a young man running away from the scene of a crime. If Mr John’s young friend was trying to conceal the phone from the police, who had received a report of a recently stolen cell phone, that might give rise to reasonable suspicion. However, a citizen carrying a cell phone openly should not without more be subject to search or arrest.
“An important point is that, if the police officer is challenged in court, the onus will be on him to prove the surrounding circumstances which gave rise to his reasonable suspicion. If he cannot do so satisfactorily, his action will be deemed unlawful, and he will be liable to compensate the arrested person, as well as possible disciplinary action within the Force.
“Advice to the Public
“At the end of the day, every Guyanese knows the reality of a police confrontation. The best course of action if you feel that the officer’s conduct is unreasonable is to ask ‘Am I free to go or am I under arrest?‘ There is no middle ground. The answer must be either that you are not free to go, or that you are free to go. If the officer wishes to search your house or car and does not have a court order, inform the officer beforehand that he does not have your consent or permission to search, and demand his name and number so that further action can be taken. Do not help, but do not resist. If the officer still proceeds with his arrest or search, the unfortunate fact is that there is little that the citizen can do against an armed and trained policeman until he can locate his lawyer.
“The unpleasant truth
“The general consensus is that wrongdoing by police officers in Guyana is not a matter of fiction; there are simply too many stories of abuse for them all to be fairy tales. Further, it appears that the police act with impunity; it is a rare occurrence that a policeman is taken to court for misconduct, or is disciplined within the Force for excessive use of force against a citizen.
We as citizens need to recognize that this absence of accountability is entirely our own fault. In the vast majority of cases, a citizen who feels aggrieved after a wrongful arrest, or after a wrongful search of his house or car, will not take further action. He will not complain to the authorities or otherwise seek redress. It is much easier, after his ordeal is over and the police have gone away, to simply slip back under the radar into anonymity, rather than endure the inconvenience and face the risk (real or imagined) of possible retaliation by an angry police officer by prosecuting a complaint. It does not occur to the citizen (or he does not care) that the policeman is empowered by this display of apathy to continue his conduct of abuse against other innocent citizens.
“If citizens will not come forward to complain and seek redress where a policeman infringes their rights, then the policeman can act with impunity. Mr John may wish to inquire whether his friend lodged a complaint or took any further action to protest his mistreatment. If he did not, then he is part of the problem. George Bernard Shaw observed, ‘Democracy is a device that insures we shall be governed no better than we deserve.‘ If our response to police abuse is to hide quietly under the rock, we must accept that our society has the Police Force that it deserves.“
