Private Notice Question put by Leader of Opposition to Prime Minister on Tuesday 17th July 2012
Closing Speech by Principal State Counsel, Mehdi Manrakhan at Supreme Court Assizes
Michaela McAreavey Harte murder case
National Assembly – 17 July 2012
PRIVATE NOTICE QUESTION
The Honourable Leader of the Opposition
To ask Dr the Honourable Prime Minister, Minister of Defence, Home Affairs and External Communications, Minister for Rodrigues –
Whether, following the verdict in the Michaela McAreavey Harte murder case, he will state if –
(a) a Fact-Finding Commission will be set up;
(b) confessions will henceforth be video or audio-recorded;
(c) the forensic services will be strengthened;
(d) the Jury System will be reviewed;
(e) the Police Force will be re-structured; and
(f) the Government of Ireland and of Northern Ireland have protested against the publication of crime scene photographs in the Mauritius “Sunday Times” of 15 July 2012 and, if so, the actions, if any, taken/to be taken against the persons involved therein?
Mr Speaker, Sir, the whole country was in a state of shock when the news of the death of Mrs Michaela McAreavey Harte, an Irish national aged 28, in her room at Legends Hotel, Grand Gaube, broke out on 10 January 2011.
Indeed, the whole population was outraged, and there was a unanimous wave of sympathy for the victim and her family. As the House is aware, the case was widely publicised nationally and in the UK, and Ireland in particular. I personally expressed my deepest condolences to the bereaved family, and gave the assurance that the authorities in our “Etat de droit” and law abiding country will ensure that those responsible for this despicable act be brought to justice.
During the investigation, five persons were arrested. Two persons were subsequently charged for murder, and the case was lodged before the assizes on 22 May 2012.
Following the verdict in the case on 12 July 2012, my Office issued a communiqué wherein it was stated that Government has taken note of the verdict, and that the Government and the people of Mauritius shared the grief and agony of the Harte and McAreavey families. The communiqué further stated that Government is considering all options concerning further action in the matter with a view to bringing the perpetrators of this heinous crime to justice.
Mr Speaker, Sir, in regard to part (a) of the question, let me say outright that a Fact Finding Committee is perhaps not the best way forward in this case. This is a criminal case in which there has been –
(a) a police investigation;
(b) a preliminary enquiry before a District Magistrate, aimed at determining whether there is a prima facie case for committal/or trial before the Supreme Court;
(c) a fully-fledged case before a Judge sitting with a jury, in which evidence was ushered in by the prosecution, challenged by the defence and assessed by the jury.
There have been wild accusations in the press and elsewhere levelled at the police, and more particularly at the Major Crime Investigation Team. Let me say that I do not find any cause for dismantling a performing unit of the Police Force on the strength of only one case.
Mr Speaker, Sir, we should analyse the verdict of the jury in a dispassionate manner. There are a number of possible reasons for that verdict, although I am not suggesting that there be any investigation into the matter.
With regard to the main point of controversy arising from this trial, that is, the alleged involuntary confessions and the allegations of police brutality level at, on the one hand, MCIT officers and, on the other hand, evidence of three different doctors to the effect that there was no visible traces of violence on the body of the accused, the Presiding Judge rightly left it to the jury to decide either to accept and act on the confessions, or to accept the contention of the defence and reject the alleged confessions. The jury’s verdict, Mr Speaker, Sir, seems to suggest that they chose to reject the confessions.
In a jury trial, it sometimes happens that the balance may tilt one way or the other as it is apparent for the following extracts from the journal, and I wish to quote it, Mr Speaker, Sir. The learned Judge said –
“The Counsel (that is, the Counsel for the defence) was threatened that he would be beaten with a chair, and was also asked to sit down. The accused was then asked to sign it, and he did so in the presence of his Counsel.”
He goes on to say, Mr Speaker, Sir –
“If the police really wanted to fabricate a statement, it would have been easier for them to fabricate the statement immediately after that, and to make the accused sign it there and then, that is, on the 12th. Why would the police run the risk of calling his Counsel, allowing accused to meet with Counsel, saying that he would give his statement on the next day, allowing the accused to meet with his wife, and then fabricating a statement after having threatened to do bodily harm to counsel, and all this at the premises of the Line Barracks on a weekday during working hours?”
He goes on to say –
“If the police wanted to fabricate a statement, they then would have avoided the contradictions and any other things that could shake or weaken the confession. The other side of the coin is that the statement, as it has been recorded, was authored by the accused, and the police simply faithfully wrote down what he said. And the beginning of the statement on the 13th, which is a statement recorded under warning, you will see that the accused was fully warned and that he acknowledged the caution by affixing his name under it.”
I think this speaks for itself, Mr Speaker, Sir.
We should not, therefore, view the outcome of the case in isolation against the favourable outcome in many cases based on MCIT investigations. I am informed, Mr Speaker, Sir, that, during the year 2010, in five cases before the Supreme Court, guilty pleas were entered on behalf of the accused based on confession obtained during the enquiry, and in two cases the jury returned a verdict of guilty. In 2011, in five cases, guilty pleas were entered on behalf of the accused based on confession obtained during the enquiry. And, finally, during the 1st term of the Assizes in the year 2012, in four cases, guilty pleas were entered on behalf of the accused based on confession obtained during the enquiry. In all these cases, the enquiry was conducted by the MCIT, and the trial before the Supreme Court was preceded by a preliminary enquiry before a District Magistrate, and the defence had the opportunity of cross examining the police officers.
Mr Speaker, Sir, I have always stated that I am committed to the respect for the Rule of Law. The Constitution of Mauritius rightly provides for the independence of the Judiciary, of the DPP, and of the Commissioner of Police. It is not for me, therefore, to interfere in any investigation or trial. The role of Government is to ensure that proper laws and procedures are in place for allowing these institutions to function efficiently whilst ensuring that there is a fair balance between the prosecution and the defence.
I shall later be outlining the various measures put in place to improve our criminal justice system. This being said, insofar as this very sad case is concerned, I trust the appropriate authorities, especially the DDP and the Commissioner of Police, initiate such action as may be necessary to ensure that the guilty does not go unpunished.
I understand, Mr Speaker, Sir, that one of the options being considered by the DPP is the institution of a judicial enquiry under section 64 of the District and Intermediate Courts (Criminal Jurisdiction) Act. Any such initiative on their part will receive the unqualified support of Government.
Regarding part (b) of the question, one of the common complaints by a defendant who has made a confession in a criminal case, is that he was coerced to make that confession. It would be unreal to imagine that every police officer, in every case, is too scrupulous to succumb to the temptation to attempt to secure the conviction of a person whom he believes to be guilty, by saying that he has confessed to the crime with which he is charged, when in fact he has not done so.
The consequent dispute resulting from a challenge of a confession in court entails considerable delays, strain on judicial resources in bringing criminal cases to finality. There is an overall constitutional duty to ensure that a trial is heard within a reasonable time.
Mr Speaker, Sir, the House will recall that the Report of the Presidential Commission to examine and report upon the structure and operation of the Judicial System and Legal Profession of Mauritius, set up by me in July 1997, under the chairmanship of Lord Mackay, mentioned that the recording of confessions on audio tape or where possible by video is an extremely effective way of cutting down the need for police oral evidence, and has the effect of considerably shortening the subsequent trial. The Committee recommended that those facilities be provided to the police.
The Judiciary, which was consulted subsequently, expressed no objection for the compulsory electronic recording of police interviews.
Mr Speaker, Sir, in Chapter 4, paragraph 34 of the Government Programme 2012-2015, it was clearly stated that Government will bring necessary amendments to the Criminal Procedure Act and the Courts Act, making the electronic recording of police interviews compulsory.
As regards video-recording, I am informed by the Commissioner of Police that such facility already exists at Line Barracks, and is being used in certain cases.
Prior to the recording of any statement from an accused party, he is informed of the existence of his constitutional rights, as well as of the existence of the above facility in view of the video recording of his statement. The decision to have his statement video recorded entirely rests with him. He may be advised by his Counsel.
As regards the M. H. case, the Counsel for the accused party, A. T., who was assisting his client, and who was fully cooperating with the police, did not express his wish to avail himself of the video-recording facility. In fact, the confession, as I said, was made in front of Counsel, and there was no objection at that time.
In the light of the experience from the above case, I am informed by the Commissioner of Police that, henceforth, in important and high profile cases, the police will impose the video recording of statements.
Mr Speaker, Sir, in regard to part (c) of the Question, the primary role of the Forensic Science Laboratory is to provide forensic services, including DNA tests in criminal and civil cases at the request of the Police or by an order from a Judge.
Emphasis is now being placed on scientific led investigation instead of confession based. In this regard, the Forensic Science Laboratory has a central role to play in our criminal justice system.
The DNA Identification Act was passed by the National Assembly on 21 July 2009 and came into operation on 25 February 2010. With a view to ensuring an effective implementation of the Act, the collaboration of the University of Staffordshire, UK has been enlisted. Training has been provided to all major stakeholders, including the Police Force and the Judiciary in the use of DNA evidence.
It should be pointed out that since September 2011, the Forensic Science Laboratory has been accredited (MS ISO/IEC 17025) for DNA finger printing, alcohol level determination and identification of drugs such as heroin and cannabis.
Mr Speaker, Sir, in October 2010, the services of Mrs Jane McLean, a British national and an expert in forensic affairs was enlisted to head the FSL. On 28 September 2011, Mrs McLean informed that she would not renew her contract as she was offered a job at the Metropolitan Police.
The post of Director of the FSL was advertised by the Public Service Commission on 07 October 2011.
Adequate resources in terms of equipment and staffing are being provided to the Laboratory.
Mr Speaker, Sir, in the Government Programme 2012-2015, we had announced that we shall pursue the upgrading of the Forensic Science Laboratory to enhance the use DNA analysis.
In regard to part (d) of the Question, there has been, for some time, dissatisfaction with jury trials in Mauritius. In fact, many of the cases at first instance of the Supreme Court, e.g drug trafficking cases, are now tried before a judge without a jury.
In the light of the outrage in many quarters, though not reflected in the press, at such a verdict, I am contemplating refereeing the matter of the review of trial by jury to the Law Reform Commission for its recommendations after consultation with all stakeholders, including the legal profession, the Judiciary, members of the public, including Parliamentarians and the Police. Any review of the jury system would be considered in the light of these recommendations.
In regard to part (e) of the Question, let me remind the House that, in October 1998, during my first mandate, my Government undertook reforms to modernise the institutions of the country, including the Police Department. The reform programme entailed a host of changes which includes, inter alia –
• Setting up of the Emergency Response Service to attend to requests and calls for assistance promptly.
• The creation of the Scene of Crime Office to organise the recovery and preservation of vital clues to ensure speedy elucidation of cases.
• The acquisition of a modern Automatic Fingerprint Recognition Computer system.
• The creation of the Complaints Investigation Bureau after the enactment of the Protection of Human Rights Act of 1998 to enquire into complaints against the Police.
In September 1999, I introduced a higher professional education programme for our Police officers by launching the Police degree courses in collaboration with the University of Portsmouth.
Thereupon, the Police had embarked on a modernisation programme not only in term of building assets and infrastructure, but also with regard to a new style of policing based on customer care and adherence to Human Rights.
Being aware of the complex and evolving nature of policing, based on the initial reform programme undertaken during period 1998-1999, I have taken Police reform to a higher scale in 2010 when I launched the 2nd Police reform programme under the ‘National Policing Strategic Framework (NPSF)’. The NPSF portrays a forward-looking organisation, providing a new vision which states: ‘With you, making Mauritius safer’ and a new direction to the Police as they shift from a force to a service aimed at bringing about a fundamental change in policing and management style, thereby ushering in a new work culture and policing philosophy being more caring and responsive towards the community.
Mr Speaker, Sir, we shall continue to modernise our Police Force.
In the Government Programme 2012-2015, we have announced a series of measures to enhance the capability and capacity of the Mauritius Police Force. We will also review the legislative framework under which the Police operate.
In this regard, we are coming forward with the Police and Criminal Evidence Bill which provides for codes of conduct that will regulate the conduct of Police and other investigators and address a number of issues relating to criminal enquiries, including victims’ rights.
In line with the new Government Programme 2012-2015, Government has undertaken to enact a Police and Criminal Evidence Bill. A draft Bill has been made available for public consultations already and comments from stakeholders have been received. A workshop was held on 11 July 2012 by Professors Savage and Uglow, both eminent academics on the Police and Criminal Evidence Act of the UK and Government is expecting to introduce the PACE Bill in the National Assembly shortly.
The Police Complaints Bill has been set down for first reading before the National Assembly in fact today, Mr Speaker, Sir. The Bill is being piloted by me. The explanatory notes of the memorandum of the Bill are as follows:
The main object of the Bill is to provide for the setting up, within the National Human Rights Commission, of a Police Complaints Division to investigate complaints made against members of the Police Force, other than allegations of corruption and money laundering.
Regarding part (f) of the Question, I am not in the presence so far of an official protest from the Government of Ireland or the UK. However, a series of emails from Irish nationals expressing horror and outrage on the publication in our one local newspaper of the pictures of the mortal remains of late Mrs Harte have been received.
I should like to inform the House that the Counsel of Mr John McAreavey and Harte family have, in a letter dated the 16 July, addressed to the Commissioner of Police and copied to me and to the DPP pointed out that the publication in a Sunday newspaper, the Sunday Times, of 15 July of the dead body of Mrs Harte has caused severe prejudices to his client and his family.
Mr Speaker, Sir, my Office issued a communiqué on the matter yesterday and with your permission I would like to read part of that communiqué, and I quote:
“Government has taken cognizance of the outrageous publication in the issue of 15 July 2012 of a Sunday newspaper of the photographs of the dead body of Mrs Harte. This is a clear illustration of one of the most despicable methods of abuse and breach of the right to freedom of expression.
It shows an utter lack of respect for, and a reckless infliction of further hardship on the bereaved families.
This act runs counter to the deep attachment of our country and our citizens to family values and respect of those who have lost their beloved ones.
It is a matter of deep regret that whilst the authorities, within our democratic legal framework, have throughout been taking all possible steps to bring the culprits to justice and maintain the reputation of our country as a hospitable and friendly place, some isolated and unscrupulous individuals in the media, for the sake of an irresponsible sense of sensationalism, are doing everything they can to harm the image of our country and that of its law abiding citizens.
Government has referred the matter to the competent authorities.”
Mr Speaker, Sir, I am informed that the Police has already started an enquiry into the circumstances in which these photographs came in the possession of and were published in the weekly.
I am sure that the whole House and indeed the entire population will express its feeling of disgust and outrage at what constitutes a blatant case of gutter journalism. The House will also appreciate how much prejudice to the image of our country this paper has caused by its irresponsible act.
Mr Speaker, Sir, I will also invite the Director of Public Prosecutions to consider inviting the Courts, in appropriate cases, to order, in the interest of the privacy and the respect for the grief of victims concerned, that photographs containing graphic images of injuries sustained by victims of crime and of the dead body should not be published in the media, whether broadcast, newsprint or electronic.
* Published in print edition on 20 July 2012