OpEd: The Presumption of Innocence and the Principle of Natural Justice

By Paul Slowe CCH, DSM, Assistant Commissioner (Ret’d)

Following the murder of Quindon Bacchus by a member of the Guyana Police Force on June 10, 2022, the public was informed that the Police Complaints Authority would be investigating the incident. I pointed out then that the Police Complaints Authority Act, Chapter 17:02 provides for the Police Complaints Authority to “supervise”, and not by itself investigate an incident of that nature.

The Police Complaints Authority subsequently submitted a report to the Director of Public Prosecutions with recommendations for three members of the Guyana Police Force to be charge with the following criminal offence:

1. Lance Corporal Kristoff DeNobrega, murder contrary to common law.
2. Lance Corporal Thurston Simon:-

(a)   Conspiracy to commit a felony, to wit, murder contrary to section 102 (a) of the Criminal Law Offences Act, Chapter 8:01; and

(b)  Conspiracy to obstruct the course of justice contrary to section 320 of the Criminal Law Offences Act Chapter 8:01.

3. Sergeant Dameion McClennon :-

(a)   Perverting the course of justice contrary to section 329 of the Criminal Law Offences Act Chapter 8:01; and

(b)  Unlawful possession of two rounds of ammunition contrary to section 16 (2) (a) of the Firearm Act Chapter16:05 as amended by the Firearm and Ammunition Act No 17 of 2007.

It must be noted that the Director of Public Prosecutions did not advice the police to institute some of the charges recommended by the Police Complaints Authority.

Additionally, the Director of Public Prosecutions recommended that Lance Corporal Simon should be charged with a disciplinary breach.

Having had the opportunity to examine the report prepared by the Police Complaints Authority I must say that I am disappointed with the sparseness of the recommendations.

My disappointment stems from the fact that the report clearly identified several other ranks who committed criminal offences and disciplinary breaches, yet no recommendation was made for them to be charged with the identified offences and breaches.

The three ranks who were charged appeared in court on July 5, 2022 and were all refused bail and remanded to prison.

The standard procedure in cases where ranks of the Guyana Police Force are charged with a criminal offence is for them to be interdicted from duty with effect from the date they appeared in court, pending the outcome of the criminal charge.

There are currently several ranks of the Force who are interdicted pending the outcome of various criminal charges, including a gazetted officer who was committed to stand trial in the High Court for allegedly engaging in sexual activity with a 13-year-old child and a sergeant who was recently charged with larceny by public officer; just to give two examples.

I was therefore shocked to learn that shortly after the appearance in court of the three ranks charged in the Quindon Bacchus case they were all summarily dismissed from the Guyana Police Force with effect from July 5, 2022, the same day they first appeared in court to answer the charges.

I was taught the legal principle of the “presumption of innocence”:

The principle says that “every person accused of any crime is considered innocent until proven guilty. Under the presumption of innocence, the legal burden of proof is thus on the prosecution, which must present compelling evidence to the trier of the facts”.

I was also taught the principle of Natural Justice, which says that: “natural justice is a technical terminology for the rule against bias and the right to a fair hearing. While the term natural justice is often retained as a general concept, it has largely been replaced and extended by the general duty to act fairly”.

Section 34 (1) of the Police Act, Chapter 16:01, states “the commissioner may at any time discharge any subordinate officer or constable from the force on the grounds that, having regards to the conditions of the force, the usefulness of the subordinate officer or constable thereto and any other relevant circumstance, such discharge is desirable in the public interest”.

In the past the administration of the Guyana Police Force and the Police Service Commission made use of section 34 (1) to summarily dismiss ranks.

This practice was challenged on numerous occasions and the courts have repeatedly held that section 34 (1) cannot be used to dismiss ranks without applying the principle of natural justice. In other words, the ranks must be given an opportunity to be heard.

I recall that when I was the Chairman of the Police Service Commission I had a conversation with the Solicitor General in relation to the same subject. I was informed that the Attorney General’s Chamber was at its wits end to deal with cases where ranks of the Guyana Police Force were dismissed without the principle of natural justice being applied and had moved to the court to seek redress. I was further informed that in all of those cases the Attorney General’s Chamber had to concede and pay out large sums as damages to the affected ranks.

It is to be noted that the dismissal of Lance Corporal Simon also flies in the face of the recommendation from the Director of Public Prosecution that he should be charged with a disciplinary breach.

It is evident that the dismissal of the three ranks violated the sacrosanct principles of the presumption of innocence and natural justice, and is therefore unlawful.

I am reminded that some persons in society speak eloquently about the rule of law. I would like to take this opportunity to state that “the rule of law is a principle under which all persons, institutions, and entities are accountable to laws that are: Publicly promulgated. Equally enforced. Independently adjudicated. And consistent with international human rights principles”.

The dismissal notices referenced above are unlawful and should be immediately withdrawn; failure to do so must result in swift legal challenge.

We must be reminded that in any country governed by the rule of law citizens should not stand idly by and allow the misguided, misinformed and incompetent to violate the rights of anyone, including persons who are charged with criminal offences.