“Fighting crime does not mean defying the rule of law”

Qs & As

The Conduct of Police Interrogations

* ‘What is happening with the investigation into the murder of S. Kistnen? Are the police complying with the directives of the DPP?

By Lex

Last week we looked at the important question of the personal safety and well-being of persons taken into custody by the Police in Mauritius. This week we extend our examination of the matter into the legal and constitutional area, particularly concerning the admissibility of evidence obtained from confessions during trial of the case at court. Has the matter reached our Parliament, and with what results, if so?

* The comment has been made that ‘the very shocking use of the Taser by the police on naked suspects only goes to show that people in authority anywhere in the world, including the police, should be held accountable for their actions albeit without affecting their ability to operate in a reasonable manner’. Is it possible to do both in the fight against crime?

The duty of the police is to combat crimes anywhere in the world. They do so in a context of the rule of law. That means that they have to comply with all existing laws which establish and demarcate their own powers as well as those relating to the rights of suspects. In Mauritius, for instance, the duties of the police are embodied in the Police Act and the Standing Orders issued by the Commissioner of Police. Just like any other citizen, the police should be able to exercise their powers and also be held accountable if they act in defiance of the law.

* What does the law, as it stands today, provide as regards the duties and obligations of the police once a suspect has been arrested and brought in custody?

Once a suspect is arrested, he must be informed of the reason of his arrest. He must be informed that he has the right to consult a legal adviser and all facilities must be provided to him to contact his lawyer and his relatives or persons close to him. Are these rules being adhered to in all cases? Recent allegations would suggest that this is clearly not the case in many instances. Unfortunately, some police officers would seem to have systematically breached all those provisions with the sole aim of terrorizing suspects into confessing to offences which they might or might not have committed.

* We understand that any person held in custody must be brought before a magistrate as soon as the preliminary investigation has been completed. What does the law provide in terms of the duration of the preliminary investigation?

The moment a person is arrested, he must be brought before a court of law as soon as it is reasonably possible. Any delay in taking him to court must be explained and justified. The police investigation can still proceed after the suspect has been taken to court.

* It would seem that it’s often the less well-off – for whom justice is often too costly- who get treated in an inhuman and degrading manner, even tortured, during the early investigation stage. That’s when ‘confessions’ are usually extracted from suspects. Doesn’t the law provide for legal assistance to a suspect as soon as he is arrested?

The Constitution states clearly that the moment a suspect is arrested, the police must inform him of his right to legal assistance. But in practice it would seem that this is rarely done. The police can always argue that the suspect was informed of this right, but that he declined the assistance of a lawyer. Unfortunately courts of law seem more often than not to accept that explanation to the detriment of the suspect’s rights.

* We are not aware if statistics are available about the number of crimes solved through confessions or to what extent if any they have been subjected to any form of data analysis or other scientific manipulation to extract evidence of some sort or other, etc. That might be very instructive about the local policing standards and efficiency!

We unfortunately do not have those statistics. The police would usually resort to confessions as these constitute the best evidence that they can obtain to prove that the offence was committed. This practice will continue with impunity until and unless the law relating to confessions is reformed.

* One would expect that only confessions made voluntarily would pass the test of admissibility. Is this what is prescribed in our statute books?

A confession is admissible if it was made voluntarily. What is meant by voluntary? The case law has over the years clearly established that voluntary means that the confession was given by a suspect of his own free will after he was warned on his right to silence. Further the confession should not have been extracted by the means of threats or bodily violence or by any promise made to the suspect.

* It appears that Section 25 of the Indian Evidence Act clearly establishes the inadmissibility of confessions made to a police officer. It says that ‘confession made to a police officer cannot be proved against the accused’. What do judicial decisions in Mauritius inform us about the admissibility of confessions?

In Mauritius a confession can be challenged in court by the accused party on the ground that it was not obtained voluntarily. In a court of law, it is the word of the police against the word of the accused. The police can always produce police witnesses to corroborate their version that the confession was voluntary. How would an accused get out of this tight corner the more so if he has been denied of legal assistance by the police?

It we look at the cases decided on confessions over the years, it is very rare that a confession has been rejected. The police derive comfort and satisfaction from the fact that a court of law would almost never reject a confession – unless it has been proved to have been done under duress.

* Would it serve the purpose of justice – and the protection of human rights – if the law were to be amended to provide for the admissibility of confessions only made in the presence of a magistrate, or would this hamper the efficiency of police investigations of crimes in the future?

Certainly. The law can be amended to make a confession inadmissible if it was extracted in the absence of a lawyer or magistrate.

* The other side of the coin is that those who are in contact with the ground realities talk about deep undercurrents of crime associated with drug trafficking traversing Mauritian society and argue that we need to strike the right balance between the demands of effective police powers for fighting crime and respect for human rights. That may not easy to achieve in practice, is it?

Fighting crime does not mean defying the rule of law. It may be difficult for the police to obtain evidence of a serious crime like for example drug trafficking. But that does not mean that the rights of any citizen can be jettisoned in the fight against crime. If that were to be always so, then we would be living in a dictatorship with the police having a free hand in all that they do. Do we want to live in such a society?

* Successive governments have been unable to date to make up their minds about a proper Police and criminal Evidence law. Would such a legislation help, or are the existing legal provisions adequate for fighting crime – without the need for the police to indulge in any form of abuse?

According to information available, the Police and criminal Evidence Bill has been ready since many years, but no government has taken the initiative to have it debated in Parliament and adopted. Why that is so remains a mystery. The Bill apparently contains a number of provisions regarding confessions and the manner in which suspects should treated. Do the police feel that the new provisions would hamper their work? The best move the government can make is to have the Bill debated in parliament and get views across the board. At least a positive step would have been taken to improve police-community relations.

* Former Commissioners of Police Mario Nobin and Khemraj Servansingh will apparently be questioned this week about the action, if any, they took after the now famous USB pendrive had allegedly been handed over to them by Rama Valayden in 2019. We are not aware at this stage if they would be willing to submit themselves to an interrogation conducted by the CCID or to another panel of investigators…

Mr Rama Valayden has stated that he never handed over the pendrive to former Commissioner of Police Servansingh. Anyway, whatever the situation may be, do you expect a CP to go and investigate a complaint? The CP is assisted by other departments and a host of deputies. Whose responsibility is it to investigate if not that of the Central CID headed by Mr Jangi who is the Deputy Commissioner on contract and in charge of crime investigations. Why is everybody focusing on former Police Commissioners Nobin and Servansingh and sparing the Central CID? After all regional CID units fall under the Central CID.

* Labour Party leader Navin Ramgoolam has expressed his disagreement with the proposal made by other Opposition leaders for the setting up of a commission of inquiry to look into the issue of police brutality. He is instead in favour instead of a judicial inquiry. Could he be right?

We should have neither a commission of inquiry nor a judicial inquiry. It would be a waste of time, money and resources. The law is such that the evidence, however incriminating it may be, cannot be used in a court of law. The whole investigation would have to be started anew by the police. Look at what has happened in the case relating to the murder of Soopramanien Kistnen. There has been a judicial inquiry and the Director of Public Prosecutions referred the matter back to the police for investigation. What is happening with the investigation? Are the police complying with the directives of the Director of Public Prosecutions? Let the matter be investigated by the Police Complaints Commission.


 

Mauritius Times ePaper Friday 10 June 2022

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