EDITORIAL
It is entirely possible that a confession by an individual to having committed a serious crime might have been induced by the pangs of his or her conscience. It is equally possible that it might have been induced by coercion of some sort, whether by threats, promises, force or some oppressive conduct or the investigators of the crime might have fabricated it. While a confession of the former type should be, and is readily admissible in evidence against the accused person at his or her trial, the fair minded individual would abhor any idea of those in the latter category being identically treated.
At common law however, the claim that a confession was not voluntary is treated as essentially a matter of fact so that in most cases, the matter will be left to the jury for its determination of the truth. And given the naturally perceived inequality in cogency between the practiced evidence of the police and that of a criminal accused, it should come as no surprise that most juries have found in favour of the validity of the confession.
Barbados has formally attempted to reform the law in this context. Indeed, in its recent decision, the Caribbean Court of Justice [CCJ] referred to one aspect of the genesis of this reform – “At the second reading of the Evidence (Amendment) Bill, 2014 which would mandate sound and video recording of interviews of persons in police custody, concerns were raised by Barbadian parliamentarians over the reliability of unacknowledged and unrecorded verbal admissions given to police whilst in custody and the impact of such unreliability on the constitutional right to a fair trial.”
In that decision, delivered earlier this week, the CCJ was critical of the local courts and their practice of sending the case to the jury once they find the oral statements to be admissible. In the view of Justice Anderson, there must also be some independent corroboration of guilt beyond the oral confession itself. The learned judge stated, “We conclude that under the criminal justice system of Barbados, it is not permissible for a person charged with an offence to be convicted of that offence in circumstances where the only evidence against him is an unsigned and otherwise unacknowledged and uncorroborated confession which the prosecution allege was made to investigating police officers whilst in police custody but which he denies making. Something more is required either in the way of independent verification that the admission was actually and voluntarily made, or in the way of other evidence that independently corroborates or otherwise points to the guilt of the accused.”
In his judgement, Justice Saunders was critical of the implementation deficit that seems to afflict so many of the noble social initiatives undertaken by the local state. It is of interest to note that on the day after the learned judge’s strictures, the Director of Economics at the Caribbean Development Bank, Dr. Justin Ram, was reported as observing in identical vein, “In the Caribbean, we spend too much time on planning and thinking and not enough on implementation.”
As Saunders J. observed, “One of the Act’s principal aims was to improve the evidential integrity of admissions by suspects and the chief method for achieving this was to sound-record police interviews of them. Having enacted what at the time was modern, progressive legislation, a decision was made to suspend the critical sections of the Act that required sound-recording. The ostensible reason was that Barbados lacked the material resources to equip its police stations with the necessary recording devices. Over 20 years later, these sections of the Act remain suspended.”
This decision strikes a blow for the fairer treatment of accused persons in custody in Barbados. It also exhorts the governing administration soon to implement the technology aspired to in the legislation and thereby to enhance public confidence in the workings of our Police Force.