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Breaking News:

Must we handcuff all defendants?


Published: Jul 27, 2017

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Dear Editor,

 

Since when did the pursuit of justice start with the public humiliation of an accused person? For too long we have sat on the sidelines and watched as defendants in criminal cases are brought before magistrates and judges handcuffed, shackled at the feet and escorted by the burliest officers on the police force.

This was not always the case. But as with everything else, its prevalence now has much to do with the presence of TV cameras outside the courthouse door and, more significantly, the over-use of the procedure by elected prosecutors in the United States intent on showing voters that they were being tough on crime.

This all came to a head in the 1980s, as then U.S. Attorney for New York, Rudy Giuliani, wanted to show that he was cracking down on white collar criminals by parading Wall Street bankers through a public place to name and shame them.

Nevermind the fact that some of these defendants later learned they had no case to answer, or were exonerated by the justice system. Giuliani got a reputation as a tough-on-crime politician and he rode that pony as far as he could, even trying to become president of the U.S.

The so-called “perp walk” for perpetrator walk (we refer to it here as the “Bank Lane shuffle”) is, in my humble opinion, a violation of the defendant’s fundamental right to dignity.

Luckily, in our system, all defendants are presumed innocent until proven guilty and when we look at renditions of Lady Justice she is always portrayed blind-folded, as justice must be.

We should be able to trust the commissioner of police —or the senior officer in charge — to have some discretion when deciding who should or should not be escorted into the courthouse in handcuffs, leg shackles, or other forms of restraint.

Years ago, the judiciary in the United Kingdom issued guidelines for the custodial management of so-called undertrials — an undertrial being any person who must appear in a court because they have been accused of a crime.

If the presumption of innocence for undertrials is to prevail, then he or she must be unfettered as they make their way to court, unless there are reasonable grounds to put them under restraint.

The old people used to say, you should never let a judge use your name to wash out his mouth. In local parlance, try your best to never have to be taken to court. But if circumstances demand your appearance in front of a judge, especially if you went to the police of your own volition, then at the very least the state ought to allow you the dignity of swinging your arms on your way to court.

In some circumstances, the police will have reasonable cause to suspect the risk of escape, the use of violence, unruly behavior, or even that the defendant may physically harm himself if left unrestrained. In such cases it should be in order for the police to use handcuffs.

In most cases, having two burly and buffed police officers at your side and other armed officers bringing up the rear is all you need to strike the fear of God in those minded to flee.

Courts in England have ruled that unjustifiably placing handcuffs on defendants can constitute a civil trespass, even though the arrest itself is lawful. Our constitution seems to warn against this in Article 17 (1): “No person shall be subjected to torture or to inhuman or degrading treatment or punishment.”

Recently, we had two high-profile matters brought before the courts involving former law-makers who are now being alleged to be law-breakers. The courts will try the facts and will rule on their guilt or innocence. But, going into that courthouse, they should be presumed to be innocent.

The accusations of a political witch-hunt are wide off the mark, but, if proven true, then the courts will no doubt come down hard on those responsible.

Kenred Dorsett and Frank Smith were humiliated, in my humble opinion, by being handcuffed when they walked to court. But it is well to remember that 80-year-old Fred Ramsay, who was of a different political persuasion than the current accused, was also handcuffed and shackled. No doubt, in these and other cases, the police were simply following the normal procedure.

Let’s change the procedure.

 

– The Graduate

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