“A man dies when he refuses to stand up for that which is right. A man dies when he refuses to stand up for justice. A man dies when he refuses to take a stand for that which is true.” — Dr. Martin Luther King Jr
For too long I have remained silent in deference of 'respect'. When the Indian gentleman in Dominica filed a writ of Habeas Corpus, the Honorable court had two options:
1) If the court found that the man had been held illegally, FREE HIM IMMEDIATELY AND UNCONDITIONALLY.
2) If he had been held legally, then deny the writ.
At the time of the application, the gentleman had not been charged with any offence and so should have been released immediately! When the Court refused to release him that day, I would have forced the court to give a decision rather than cowardly adjourn the matter.
It is to my understanding that it was suggested (stand corrected on the facts here), that he be brought to the Magistrate Court and be charged for illegal entry. That was nothing but to give the other side a way to nullify the application, because Habeas Corpus is not to punish the offender, but to seek the release of the applicant from illegal detention. Secondly, where the gentleman states that he was abducted from one jurisdiction and brought to another jurisdiction forcibly, the court should not entertain an illegal entry complaint as it would amount to be an abuse of the court's process.
In R v Larsonneur (1933) 24 Cr App R 74, The defendant, a French woman, was deported against her will, from Ireland to England, by the Irish authorities. Upon her arrival she was immediately charged with the offense of 'being' an illegal alien. Her conviction was upheld despite the fact that she had not voluntarily come to England. With these facts one could argue that illegal entry is a case of strict liability and so the gentleman could be properly tried and convicted in the courts of Dominica.
Distinguish Larsonneur of 1933 from Regina v Horseferry Road Magistrates’ Court, ex Parte Bennett (No 1): HL 24 Jun 1993, where the defendant had been brought to the UK in a manner which was in breach of extradition law. He had, in effect, been kidnapped by the authorities (rings familiar?). It was held that the High Court may look at how an accused person was brought within the jurisdiction when examining a question about that person’s detention.
It is axiomatic ‘that a person charged with having committed a criminal offence should receive a fair trial and that, if he cannot be tried fairly for that offence, he should not be tried for it at all.’ Proceedings may be stayed in the exercise of the judge’s discretion not only where a fair trial is impossible but, also where it would be contrary to the public interest in the integrity of the criminal justice system that a trial should take place. It was proper to order a stay of a prosecution. To cite Lord Lowry: "the court, in order to protect its own process from being degraded and misused, must have the power to stay proceedings which have come before it and have only been made possible by acts which offend the court’s conscience as being contrary to the rule of law". Those acts by providing a morally unacceptable foundation for the exercise of jurisdiction over the suspect taint the proposed trial and, if tolerated, will mean that the court’s process has been abused.
So ladies and gentlemen, here I have given my opinion on this matter. Please note that I have supported my arguments with case law.
Clement F. Joseph, LLM; LLB (Hons); LEC; BSc
Attorney-at-Law
"So I come to you from the weary battlefield of time, armed with the disappointments of yesterday, the sufferings of today and the dreams of Tomorrow. In the struggle I may die, but let's not forsake another tomorrow. (Anon). "
Attorney-at-Law
"So I come to you from the weary battlefield of time, armed with the disappointments of yesterday, the sufferings of today and the dreams of Tomorrow. In the struggle I may die, but let's not forsake another tomorrow. (Anon). "
