The Barbados Defence Force v David Anthony Harewood

• Jurisdiction: Caribbean States
• Court: Caribbean Court of Justice
• Judge: Jamadar J
• Judgment Date: 26 July 2024
• Neutral Citation: [2024] CCJ 15 AJ
• Docket Number: CCJ Appeal No BBCR2023/002 BB

Between

The Barbados Defence Force

Appellant

and

David Anthony Harewood

Respondent

and

Regional Security System

Amicus Curiae

[2024] CCJ 15 (AJ) BB

Before:

Mr Justice Saunders, President

Mr Justice Anderson

Mme Justice Rajnauth-Lee

Mr Justice Barrow

Mr Justice Jamadar

CCJ Appeal No BBCR2023/002 BB

Criminal Appeal No 12 of 2021

IN THE CARIBBEAN COURT OF JUSTICE

APPELLATE JURISDICTION

Criminal law — Appeal — Military law — Legal certainty of statutory provision — Particulars of criminal charge — Whether s 75 of the Defence Act is legally certain — Whether particulars of the criminal charge were sufficient — Defence Act, Cap 159.

SUMMARY

This is an appeal against the decision of the Court of Appeal of Barbados (‘CA’) delivered on 27 June 2023, quashing the conviction of the Respondent which was handed down on 4 June 2019 by court-martial.

The Respondent was at all material times a commissioned officer of the Barbados Defence Force (‘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 in furtherance of this the Respondent was interviewed. Arising out of disclosures which were made during his interview, the Respondent was charged and arraigned on 27 May 2019 on four (4) charges under s 75 of the Defence Act, Cap 159 (‘the Act’). At the court-martial, Charges One and Two were dismissed as a consequence of a successful no case submission. However, on 4 June 2019, the court-martial panel unanimously ruled that the Respondent was guilty in respect of Charges Three and Four. The Respondent appealed to the Court of Appeal. On appeal, the dismissal of Charge Three was conceded during the hearing by the BDF, and the Court of Appeal found no legal or evidential bases for Charge Four and quashed the decision of the court-martial. The BDF then appealed to this Court.

In dismissing the appeal, the Court considered whether s 75 of the Act offended the rule of law and whether the particulars of the charges laid against the Respondent were in compliance with due process and fair hearing standards.

Section 75 of the Act provided as follows:

Any person who, being subject to military law under this Act, does, or omits to do, any act or thing that is prejudicial to good order and military discipline is guilty of an offence and liable on conviction by court-martial to 2 years imprisonment or any less punishment provided by this Act.

Jamadar J, in delivering the reasons of the Court, found that the approach of the Court of Appeal to interpreting s 75 was too strict and restrictive, though the concerns that informed it were well founded. Jamadar J considered s 75 against the test in McEwan v Attorney General of Guyana. The judge explained that a law expressed in broad terms does not necessarily mean that its breadth offends the rule of law requirements for clarity and legality. Jamadar J stated that what is essential is that the offence is defined and described with sufficient clarity to enable a person to assess whether their conduct is implicated and can render them liable to be prosecuted.

The purpose of s 75 of the Act was to maintain a disciplined armed force. Similar provisions exist in numerous jurisdictions and have been interpreted and applied without compromising the rights of military officers. Jamadar J noted that the language of s 75 is expressed with sufficient clarity to be capable of objective assessment and self-regulation. International military guidelines contain examples of what may constitute an offence falling under the section. Also, the open-endedness of the offence is academically acknowledged and its utility in a military context is accepted.

Following this reasoning, differing from the Court of Appeal, Jamadar J found that the language of s 75 of the Act did not offend due process, the protection of the law or the rule of law. It meets the constitutional standard of foreseeability, allowing members of the BDF to understand the consequences of and appropriately regulate their conduct.

In the current case, the particulars of Charge Four lacked sufficient particularity. In a s 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.

Saunders P in his concurring Opinion reinforced that the Constitution of Barbados recognizes, even if inferentially, the uniqueness of court-martials and the resulting specialized procedures and rules that exist for the prosecution of service members for derelictions committed in the course of service. 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, court-martials 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. Where a person is 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.

Saunders P further indicated that s 75 of the Act is an essential catch-all provision targeting conduct that undermines the maintenance of strict discipline. Service men and women ought to readily appreciate what conduct would disrupt the efficient operation or morale of the armed forces. The prosecution must satisfy the court-martial that the accused person must have known or had reasonable cause to believe that the impugned conduct was prejudicial to good order when it was engaged in. The court-martial must ultimately decide whether the conduct was objectively prejudicial and whether it was engaged in intentionally or recklessly.

Saunders P emphasised that s 75 is neither vague nor unconstitutional. Provided they are adequately particularised, charges laid under s 75 may be brought and are often conducive to maintaining discipline, unit cohesion and overall operational effectiveness.

The Court upheld the dismissal of the appeal albeit on different grounds and made no order as to costs.

Cases referred to:

A-G of Belize v Zuniga [2014] CCJ 2 (AJ) (BZ) (2014) 84 WIR 101; A-G of Guyana v Thomas [2022] CCJ 15 (AJ) G Y, (2022) 101 WIR 403; Ali v David [2020] CCJ 10 (AJ) GY, (2020) 99 WIR 363; Commissioner of Police v Alleyne [2022] CCJ 2 (AJ) BB, [2022] 2 LRC 590; Dottin's Academy Inc v Norville [2021] CCJ 08 (AJ) BB, BB 2021 CCJ 2 (CARILAW); Harewood v Barbados Defence Force (BB CA, 27 June 2023); Khan v The State [2003] UKPC 79, (2003) 64 WIR 319 (TT); Kolender v Lawson 461 US 352 (1983); Lassalle v A-G (1971) 18 WIR 379 (TT CA); Leung Kwok Hung v HKSAR [2005] 3 HKLRD 164; McEwan v A-G of Guyana [2018] CCJ 30 (AJ) (GY), (2019) 94 WIR 332; Nervais v R [2018] CCJ 19 (AJ) (BB), (2018) 92 WIR 178; Ontario v Canadian Pacific Ltd [1995] 2 SCR 1031; Parker v Levy 417 US 733 (1974); R v Addis (1965) 49 Cr App Rep 95; R v Armstrong [2012] EWCA Crim 83; R v Army Council ex p Ravenscroft [1917] 2 KB 504; R v Brandt 2022 CM 4006; R v Davies [1980] Crim LR 582; R v Dodman (1998) 2 Cr App R 338; R v France (1898) 1 CCC 321; R v Landy [1981] 1 All ER 1172; R v Lunn (1993) 5 CMAR 157; R v Quintner (1934) 25 Cr App Rep 32; R v Secretary of State for War, ex p Martyn [1949] 1 All ER 242; R v Spear [2002] UKHL 31, [2003] 1 AC 734; R v Tyler (1992) 96 Cr App Rep 332; R (Rybarczyk) v Military District Court of Poznan, Poland [2013] EWHC 180 (Admin); Sabapathee v State [1999] 4 LRC 403.

Legislation referred to:

Barbados — Constitution of Barbados 1966, Defence Act, Cap 159; United Kingdom — Army Act 1955.

Other Sources referred to:

Camp P, ‘Section 69 of the Army Act 1955’ (1999) 149 NLJ 1955; Friedland M L, ‘Military Justice and the Somalia Affair’ (1998) 40 Crim LQ 360; Grady K, ‘Disciplinary Offences at the Court Martial’ [2016] Crim LR 714; ‘Justice Through Court Martials’ (UK Legal News Analysis, Lexis Nexis 24 October 2002); McBrien E J D, ‘An Outline of British Military Law’ (1983) 22 Mil L & L War Rev 9; Ministry of Defence, Manual of Military Law Pt 1 (HMSO 1972); Office of the Judge Advocate General, ‘Practice in the Service Courts Collected Memoranda’ (Military Court Service, 1 September 2016) < https://www.judiciary.uk/wp-content/uploads/2020/08/practice-memo-ver-6-Sep16.pdf> accessed date 10 July 2024; Robinson T, Bulkan A, and Saunders A, Fundamentals of Caribbean Constitutional Law (2nd edn, Sweet and Maxwell 2021); Seetahal D S and Ramgoolam R, Commonwealth Caribbean Criminal Practice and Procedure (5th edn, Routledge 2019).

Appearances

Mr Leslie F Haynes KC, Mr Noah M Haynes and Mr Kashawn K Woods for the Appellant

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