Locking up for protocol breaches questioned

Some of Barbados’ most prominent criminal lawyers are questioning recent developments in the Magistrates’ courts that have landed locals and CARICOM nationals on remand after pleading guilty to breaching the country’s Covid-19 Directive.

Over the last week, a number of Barbadians including a father and son, a Guyanese businessman and two Guyanese shop owners were hauled off to Her Majesty’s Prison (HMP) Dodds pending sentencing. According to authorities, the rationale for the decision is to emphasize the “significance” of their offences, which range from hosting a ‘lime’ to operating a non-essential business.

The imprisonments have all occurred under EMERGENCY MANAGEMENT (COVID-19) (CURFEW) (NO. 4) DIRECTIVE, 2021, which imposes a fine of $50,000 or one-year imprisonment, or both, to anyone who fails to comply with the terms and conditions of the ongoing curfew.

Former president of the Barbados Bar Association Andrew Pilgrim Q.C. however argued that it is inappropriate to incarcerate persons “through the back door” in connection with summary offences. Summary offences refer to crimes which do not require the deliberations of a jury before a judgment is made.  In most jurisdictions, such offences include traffic cases and minor drug offences.

“In my view, it is an abuse of power for you to remand people in custody whilst thinking about what to do with them in summary matters,” Pilgrim told Barbados TODAY.

“Summary matters are by definition supposed to be dealt with quickly. So to adjourn for a month without having to get a pre-sentencing report or any further information on the person, why would they be in prison?

“Is it that this period of imprisonment is not considered punishment or is it that you really want to sentence them for a month and then give them a break after that? If that is what you wanted to do, then sentence them to 28 days and let the Court of Appeal say if that is appropriate or not. I don’t like incarceration by the backdoor,” he concluded.

Some social media commentators and members of the public have spoken on the difference in treatment of matters involving tourists found guilty of breaching the terms and conditions of their quarantine – including one attempting to flee the country while positive for COVID-19.

According to criminal lawyer Michael Lashley Q.C., it is uncommon for first-time offenders to be denied bail in such circumstances.

In fact, he informed Barbados TODAY of his intention to make urgent applications for bail in the Court of Appeal on behalf of three persons including a Guyanese national who are imprisoned in a similar manner.

“The magistrate can exercise his discretion and once we as attorneys believed that he or she exercised their discretion unfavourably, then we go to the Court of Appeal and challenge it and I am prepared to do that,” he said.

Lashley added: “My opinion is that first-time offenders should be treated like first-time offenders and I respectfully do not believe that a prison term is the right way to treat a first-time offender and that is my view.”

Asked if there appears to be a difference in the treatment of locals and tourists in relation to COVID-19 breaches, Andrew Pilgrim replied: “It’s certainly starting to look that way, but that’s just my opinion.”

Fellow attorney Asante Brathwaite, however, was not so conservative with her critique as she argued that first-time offenders ought not to have been denied bail unless the magistrate intended to impose a custodial sentence.

“It might appear that what is good for the goose isn’t good for the gander. The law must be certain so that people can see that there is fairness across the board and there is not an uneven scale being meted out to citizens when compared with visitors,” Brathwaite told Barbados TODAY.

“So for the average citizen to see on one hand that visitors pleaded guilty after breaching their quarantine and probably placed people’s lives at risk, and they were given a fine. There was no resorting to remand. So why is it that we are remanding our own nationals? It seems unfair.

“These persons have no convictions before the court. If they are looking at a fine, they should fine you there and then. Other than that it looks like they are sending people up there just to teach them a lesson,” she added.

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