The Caribbean Court of Justice (CCJ) has determined that the charges brought by the Barbados Defence Force (BDF) against a former lieutenant in its ranks did not allow the man to properly defend himself during a court martial proceeding four years ago.
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That’s why it dismissed the BDF’s appeal of a Court of Appeal decision to quash the charges against David Harewood.
The CCJ released its reasons on Thursday.
The BDF court martial had found Harewood guilty of conduct unbecoming of an officer which led to his dismissal.
In dismissing the BDF’s appeal, the CCJ considered whether Section 75 of the Defence Act offended the rule of law and whether the particulars of the charges laid against Harewood were in compliance with due process and fair hearing standards.
President of the CCJ, Justice Adrian Saunders, in his concurring opinion, reinforced that the Constitution of Barbados recognises, even if implicitly, the uniqueness of courts martial and the resulting specialised procedures and rules that exist for the prosecution of service members for transgressions committed in the course of service.
He said the military requires enforcement of the strictest discipline.
“Courts martial are specifically designed to ensure that breaches of military discipline and the unique requirements of military life and service are appropriately addressed, not by civilian magistrates or judges, but by military personnel. By excluding them from the remit of the normal criminal trial courts, the Constitution recognises that courts martial are best equipped to fulfil this role.
“However, courts martial are not exempt from a duty to abide by overarching constitutional values. The appeal could not succeed as the charge, as laid, lacked the specificity, the particulars necessary to allow the accused to properly defend himself. This defect implicated the constitutional right of the accused to the protection of the law.”
Saunders added that when people are charged, they must be told precisely what they are accused of, including the time, place and manner of commission of the alleged offence.
“This clarity ensures that the defendant understands the nature of the charges and is able to prepare an appropriate defence.
“A well-particularised charge also guides the tribunal in the presentation and evaluation of evidence, making it easier for all to focus on relevant facts and determine whether the alleged conduct matches the elements of the charged offence. From that standpoint, the charge laid here was not appropriately framed,” the president stated.
On Thursday, Justice Peter Jamadar, in delivering the reasons of the CCJ’s dismissal, found that the approach of the Court of Appeal to interpreting Section 75 was too strict and restrictive, though the concerns that informed it were well founded.
He said the language of Section 75 did not offend due process, the protection of the law or the rule of law, and met the constitutional standard of foreseeability, allowing members of the BDF to understand the consequences of and appropriately regulate their conduct.
He added, however, that in this case, the particulars of Charge 4 lacked sufficient particularity.
“In a Section 75 charge, the constitutional requirements of due process, the protection of the law and fundamental fairness must be satisfied in the statement of the particulars of the offence, given the broad and general wording of the statutory offence. The BDF was required to expressly allege every element and material detail of a charge with precise particularity,” the judge noted.
Harewood was a commissioned officer of the BDF serving under the authority of the Barbados Coast Guard. In October 2018, an investigation into suspected criminal activity involving drug trafficking, money laundering and gun trafficking within the Coast Guard division of the BDF was commenced and the suspect was interviewed. Arising out of the interview, Harewood was charged and arraigned in May 2019 on four charges under Section 75 of the Defence Act, Cap 159.
At the court martial, Charges 1 and 2 were dismissed as a consequence of a successful no-case submission. However, on June 4, 2019, the court martial panel unanimously ruled that Harewood was guilty in respect of Charges 3 and 4.
The Coast Guard officer appealed to the Court of Appeal comprising then Chief Justice Sir Patterson Cheltenham, and Justices of Appeal Margaret Reifer and Francis Belle.
(BA/PR)