Grenada’s Attorney General, Guyana-born Darshan Ramdhani has dismissed claims by members of the Grenada Bar Association (GBA) that some of the proposed changes to the Criminal Code are unconstitutional.
Under the proposed amendments, the penalty for indecent assault on summary conviction will be increased from five to seven years, and the penalty for rape increased from 30 years to life imprisonment.
Other amendments being advanced by the Attorney General’s Chambers include the removal of certain restrictions pertaining to the admission of evidence and to expand the classes of persons permitted to have access to or remain in the court room or building in which matters are being heard in sexual cases.
The amendments were sent to the President of the Grenada Bar Association (GBA), Lisa Taylor, via a letter dated November 12 but have been met with a sharp rebuke from lawyers involved primarily in criminal matters before the courts.
Several lawyers hold the view that some of the proposed changes by AG Ramdhani can and will infringe on the rights of both accused persons and complainants, thereby hindering their ability to have due process before the law.
“You cannot ask for feedback after you have drafted bills to be sent to the Houses of Parliament. You have a consultation with the bar first and that consultation was not had,” said Attorney-at- Law Derrick Sylvester.
However, Ramdhani, who took the reaction from the lawyers “as a compliment” defended the position being taken by the Attorney General’s Chambers to effect the changes to the Criminal Code.
“We are in the consultation process with the Bar…”, the AG told THE NEW TODAY in an interview on Tuesday.
“I would have thought that all (the lawyers) would have recognised that this is a consultation process and these were recommendations made … and we said this is what we are suggesting, please tell us your views, give us your feedback, this is what we are doing…”, he added.
“I am taking that as a compliment that some members of the Bar are saying that the AG’s office is working vigorously to put things down on paper and drafting, because often times, it takes a while before a draft is formulated and so, we had these – a number of agencies come together on a governmental level together with civil society … and the draft was formulated.
“This is what democratic societies do – you indentify issues (and) concerns – recognise if there are problems and then you raise the discussion and from the discussions you come up with policies and this is where we are.
“We are formulating policies to deal with the level of sexual offences we have in Grenada and so the proposal that is being made in relation to the increase for the rape penalty is that it should move from 30 years to life imprisonment.
“Whether that (amendment) will be passed in Parliament is a matter that will depend on these consultations… but society and the policymakers and some right-thinking members of society seem to be thinking that we need to increase certain penalties.
“I would have thought that my professional colleagues would have been heartened by the fact that they can see clarity in our thinking and I hope they too can in response offer comments which are clear for us to understand what they are saying.
According to Ramdhani, it will be up to the various stakeholders, as well as the Ministers of Social Development and Legal Affairs, along with the Office of the Attorney General that would look at all of the responses from the consultation and make the final decision on what to take to Parliament.
The Attorney General acknowledged that the increase in sexual offence matters against young victims and the public outcry are behind the proposed amendments.
However, he noted that “there are a number of territories in the region, such as St. Lucia and St. Vincent, where the offence of rape in particular is punishable by life imprisonment.
He said: “Grenada is not going on a path which is unheard of in the region and I believe some of the bigger countries in the region may also have life imprisonment for rape”.
Ramdhani also responded to some of the statements made by lawyers that increasing penalty is not the solution to stopping crimes.
“I am not saying that penalties are the only way that the offence is going to stop but punishment is now the way to deter other offenders from committing a crime. Punishment has been recognised as a deterrent,” he said.
AG Ramdhani also acknowledged the importance of education on the way forward in tackling serious crimes including rape.
“If you look at the news items in the last several months you would realise that society is effectively saying (that) the penalties (are) not sufficient. Now, whether (it is) sufficient will be a matter for Parliament to decide”, he said.
The AG affirmed that there is nothing unconstitutional about any of the changes being proposed as being advanced by the local lawyers.
“I would like to hear someone tell me where it is. We are not removing the rights of any individual, everyone is still innocent until proven guilty, they will have a right to confront the accused in court and they would have the right to cross examine,” he remarked.
The defence attorneys are also taking issue with a particular amendment to the Evidence Act, which seeks to remove corroboration that seems to contradict what is outlined in section (8) (e) of the Grenada Constitution, which states that “Every person who is charged with a criminal offence shall be afforded facilities to examine in person or by his legal representative the witnesses called by the Prosecution before the court, and to obtain the attendance and carry out the examination of witnesses to testify on his behalf before the court on the same conditions as those applying to witnesses called by the Prosecution.”
The proposed bill circulated by AG Ramdhani “seeks to amend the Evidence Act Cap. 92 to allow expert reports to be admissible in criminal proceedings as evidence of the matters stated …. to allow child witnesses to give evidence without corroboration in both civil and criminal proceedings, and to make special provision for vulnerable witnesses”.
Ramdhani is seeking to introduce a new section to the act, which reads as follows: “…the Court may, with the written or oral agreement on each party – (a) admit into evidence a document, without the maker of the document being called to give evidence as a witness in relation to it, and (b) treat a fact as having been proved, without evidence being led to prove the fact”.
According to Attorney Sylvester, removing corroboration is like “asking to violate the rights of an accused person”.
Attorney Francis Paul charged that based on these amendments, anyone charged with sexual offence will have their cloak of presumed innocence stripped away.
At present the law says that if you have the unsworn evidence of a child there must be corroboration before an offender can be convicted of a sexual offence, which means that the Prosecution is tasked to find independent evidence to prove that a sexual act took place and the accused did it.
Ramdhani pointed out that “usually in cases of sexual crimes it is the perpetrator and the victim (alone in the court room) and experience has made us all realise that you can have a five year-old child who can be sexually assaulted…and if you can look at a child and say to yourself this child is credible, I believe this child…you have a case but the law at present says that evidence alone is not enough to convict, you have to get something more and we feel that at this stage and this is why we are consulting on this, we feel why should such evidence not be sufficient?”
The former acting high court judge added that they are right now engaged in consultation on that important amendment “and if we have sufficient support for it then Parliament would address it.”
Ramdhani has confirmed that if corroboration is successfully removed from the law books it would mean “if the only evidence against an offender is the unsworn evidence of a child then the offender will have to be sentenced.”
According to the Attorney General, “the proposed recommendations (to the Criminal Code) have been reviewed significantly (with) many of them coming out of the Office of the Director of Public Prosecution (DPP).
“I understand that the DPP consulted primarily on them and he has looked at legislation existing in a number of other Caribbean territories…”.
Ramdhani also pointed out that the Ministry of Social Development also played an integral role in what is happening “so this was not the primary work of the Attorney General’s Chambers”.