A POLICE HEADACHE

Far too often legislation and amendments to existing legislation do
not suppress the mischief they were intended to.

One does not have to be a police officer to know the inherent dangers
in keeping large quantities of marijuana and other forms of illicit
drugs at police stations for unnecessarily long periods of time. Drugs
are known to have gone missing or were not properly accounted for when
certain cases came up for trial.

There is also the risk of police officers and ancillary staff at
police stations contracting respiratory infections from inhaling these
insalubrious substances. I have heard police officers complained of
feeling 'high' or nauseated from prolonged exposure to these substances.

Cognisant of the dangers involved in keeping these substances in
police custody for too long, the powers that be enacted the Evidence
(Amendment) Act, 2001-23.

The object of this Act was to give the police the power to take a
representative sample of drugs or any other substance coming into
their custody for the purposes of a criminal investigation and dispose
of the balance. But the Act has not been working effectively.

Police officers are reportedly having 'gripe' disposing of drugs
because of the stringent prerequisites the legislation imposes. I am
told that despite being made aware, the authorities have been slow to
respond to their difficulties.

For example, section 132C (2) of the Act says that in the presence of
the accused and a Justice of the Peace (JP), a police officer 'shall'
do the following:

(a) take the sample from the bulk of the drug or substance of which it
is a part;

(b) weight the sample and the substance from which the sample was
taken;

(c) secure the sample in a container that is wrapped and sealed;
and

(d) sign and initial the container.

The JP is then required to sign and initial the container. Once these
conditions have been complied with, the police officer who took the
sample must sign and date a certificate which the JP must also
countersign and date.

He is thereafter required to submit the sample and certificate to the
Commissioner of Police.

The Commissioner of Police, having received the sample and the
certificate, then has no choice -- since the legislation is couched in
mandatory terms -- but to submit them to an authorised analyst for
analysis.

Why all of this rigmarole? Can't this mundanity, like many others, be
delegated to a more junior rank? The Commissioner of Police has more
important duties to perform.

Maybe I am wrong but I believe the shortcomings identified in the
legislation may have resulted from insufficient consultation.

Unless there is ongoing consultation between parliamentary counsel and
the bodies, institutions or persons responsible for enforcing
legislation, the legislature will continue to enact legislation that
is unworkable.

Persons assigned the task of drafting legislation that impact on
police procedure must understand police procedure or, if they don't,
must familiarise themselves with the procedure.

A draftsman familiar with police procedure would know that there are
occasions when the police seize drugs and, for a number of reasons,
may not have an accused. There may be one accused who escapes; there
may be several accused, some of whom are held and others who escape.
In such situations are the police to keep the drugs in their
possession until the accused are caught or surrender? That could be
years down the road.

The Evidence (Amendment) Act, 2001-23 does not make the task of the
police officer easier and I want the Attorney General to know this.
All it does is create more headaches for the police. They still cannot
dispose of drugs unless the accused are in police custody.

The Act would have been more efficacious if it gave the police the
power to take a sample in the presence of a JP, whether or not the
accused is present -- JPs are supposed to be disinterested parties. If
there is any scepticism about the use of JPs, Magistrates could be
used to verify samples taken in the absence of the accused.

(Stephen Alleyne is an attorney-at-law and a former member of the
Royal Barbados Police Force)