Tuesday, 26 June 2012

Personal Liberty

What does my right to personal freedom mean?

The Constitution says that we cannot be deprived of our personal liberty but I know I can go to prison if I commit a crime so under what circumstances can I be deprived of my freedom?

The Constitution says that, as an adult (children and young people will be covered in a later article) and a resident of St Helena, you can only be deprived of you freedom if:

1.      There is a legal reason to hold you:

a.      You have been sentenced by a recognised court having been convicted of an offence;

b.      A court order is issued because you have not done what the court instructed (for example, repaying a debt, paying a fine or because you were summoned to court and did not attend);

c.       You have been held in contempt of court;

d.      The police have reasonable suspicion of your having committed or of being about to commit a criminal offence;

e.      You are unfit to plead to a criminal charge for example you are under the influence of alcohol or drugs.

2.      You are being held for your safety or to ensure the safety of others. This too will be covered in a later article.

So what are my rights if I am detained?

Whether or not you have committed a crime or any of the above you still have rights.

First of all you must be told promptly and in a language that you understand, the reason for your arrest or detention, and this must be confirmed in writing.

You have the right to have a legal representative to help you, and this must be provided as soon as possible after you ask for one.  If you can’t afford to pay for one you can have a Lay Advocate or the Public Solicitor. Either way if you have asked for representation you can be held until that representative arrives, but you cannot be questioned, unless you agree to it.

You have the right to remain silent; you do not have to answer any questions or volunteer any information.  Your legal representative will advise you whether it is in your best interest to answer a question.

You must be reminded of these rights as soon as you arrive at any ‘place of custody’ (prison, police station, etc.) On St Helena this is usually done in a room in the prison set aside for this purpose.  

The officer explaining your rights must ask you who wish to be informed that you have been arrested and where you are being held, and must ensure that they are informed immediately. The only exception to this is where the police reasonably believe that informing someone of your arrest may obstruct their investigations (e.g. telling someone who may also be involved in the alleged crime).

Note the word “reasonably” above.  Throughout this part of the Constitution you will find the term ‘reasonable’ so it’s worth asking: “who decides what is reasonable?” The test that is applied is to ask: “What would most ordinary sensible people on St. Helena consider reasonable?” If you do not believe you have been treated reasonably you have the right to make a complaint and it may even be a basis for your defence in court.

If the police decide to charge you with an offence you may go to trial, so next week I plan to discuss your right to a fair trial.

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