AG challenges High Court ruling that Police have no power to blacklist persons charged with indictable offences

Attorney General Anil Nandlall, SC, has filed an appeal against the ruling of High Court Justice Navindra Singh, that the Guyana Police Force (GPF) has no authority to place persons charged with indictable offences on a blacklist. His contention is that Justice Navindra Singh had erred and misdirected himself in law when he made that ruling.

In a Notice of Appeal lodged at the Court of Appeal of Guyana on Thursday, Nandlall contends, among other things, that the Criminal Law (Procedure) Act restricts persons charged with an indictable offence – and who have been granted bail with surety – from leaving the jurisdiction without the permission of the court.
According to Nandlall, this restriction is contemplated and permitted by Article 148 (3) of the Constitution of Guyana.
He argues that Justice Singh was bound by the principle of stare decisis to follow the precedent of Clarence Hughes vs Attorney General (Civ appeal No. 57 of 1979), which exemplifies his position.
In the Notice of Motion requesting that the appeal be heard expeditiously, the Attorney General has posited that the decision of the trial Judge violates, and is in conflict with, express provisions of the Constitution, established principles of law, and precedent.

And in an Affidavit in Support of that Notice of Motion, the acting Police Commissioner Clifton Hicken has averred that Justice Singh’s ruling has deep and far-reaching ramifications for the rule of law, and in particular the administration of criminal justice in Guyana. Demonstrating that view by way of an example, Hicken explained, “In my position as Commissioner of Police (ag), I have knowledge that hundreds of persons charged with indictable offences and granted bail with sureties can now flee the jurisdiction with impunity, and certainly without the supervisory role of the High Court.”

Background
“Blacklisted” by the Guyana Police Force (GPF) because she has been charged with multiple counts of conspiracy to commit a felony, contrary to Section 34 of the Criminal Law (Offences) Act, Senior Police Superintendent Marcelene Washington, a naturalised citizen of the United States of America, moved to have her name removed from that list, which is compiled by the GPF’s Immigration Department.
According to a constitutional action filed by this senior Police official, after the indictable charges were read to her in the Georgetown Magistrates’ Courts, and she was released on cash bail, she was informed that she was “blacklisted” from travelling beyond the borders of Guyana.
As such, through Attorneys-at-Law Dexter Todd, Dexter Smartt and Jevon Cox, Senior Superintendent Washington challenged the State’s decision to restrict her movement. In her arguments in this regard, she contended, among other things, that she is a citizen of the USA by naturalisation, and it is a condition of her naturalisation that she has to travel there every six months to sustain her citizenship.
In her application filed at the Demerara High Court, she listed the Attorney General, Home Affairs Minister Robeson Benn and Hicken as respondents. Nandlall, the Government’s principal legal advisor, had denied that Senior Superintendent Washington was “blacklisted” from travelling, but rather asserted that the Immigration Department would formulate an “administrative list” of persons charged with indictable offences as a protocol and guidance to that department, and if such persons attempted to travel at the borders, they would be advised to seek permission from the court.
Nandlall had also contended that Article 139 (1) of the Constitution of Guyana restricts this senior Police officer’s right to travel, pursuant to a bail order made by the court.

Ruling
However, Justice Singh rejected this position, and noted that by creating such a list, the GPF/State has determined that the law authorises the Police to limit the movement of such persons solely because they have been charged with indictable offences.
“No such authority is reposed in the Guyana Police Force under any written law in Guyana,” Justice Navindra Singh has declared.
According to Justice Singh, the respondents clearly “misdirected” themselves with respect to their contention that Article 139 (1) restricts this Police official’s right to travel pursuant to a bail order made by the court. Justice Singh pointed out that that constitutional provision does not restrict the movement of an individual who has been granted bail by a court of law.
He explained that bail, as defined by the Black’s Law Dictionary, is to obtain the release of (oneself or another) by providing security for a future appearance in court.
“Should the court granting bail determine that other conditions should be imposed, and impose such conditions – such as restriction of the movement of the bailed persons – only then does that become a condition attached to the bail,” Justice Singh has said in his written ruling.
In fact, Justice Singh has reasoned that the recently passed Bail Act of 2022, particularly Section 11, is most instructive in this case. “Section 11 makes it very clear that conditions, including restricting a bailed person’s ability to travel, may be imposed by the court granting bail. Logically, if such conditions are not imposed, then they do not exist,” he added.
Justice Singh has consequently declared that the Guyana Police Force cannot restrict the movement of any person around or outside of Guyana, unless such restriction is provided for in the laws of Guyana, or are pursuant to an Order of Court. Cost has been awarded to this Police officer in the sum of $150,000.

Charges
Senior Superintendent Marcelene Washington is among serving and retired Police officials who have been charged with defrauding the Guyana Police Force of $10 million. Those charges were filed in 2021.
According to the Special Organised Crime Unit (SOCU), those charged Police officials conspired with each other and with persons unknown to defraud the GPF of more than $10 million, which they were paid to revise the entire GPF’s raft of Standing Orders, but they failed to present the revised document.
SOCU — an arm of the GPF — revealed that the GPF has a raft of Standing Order which comprises 104 such Orders. The entire raft of 104 Standing Orders of the GPF was completely revised by civilian Police Analysts who worked at the GPF Strategic Planning Unit between July 2018 and March 2019, SOCU has said; but former Police Commissioner Leslie James had hired and paid these charged Police officials to do the same revision when it had already been done.
SOCU therefore contends that these past and present officers conspired together and gave themselves a job that clearly should have gone to the Tender Board by law, because of the sum of money involved.
Senior Superintendent Washington, who previously served as the GPF’s Finance Officer, is also facing three charges of allegedly falsifying bills for food provided to Police ranks. She is jointly charged in this respect with Deputy Police Superintendent Frank Jackman-Wilburg, Superintendent Lorraine Saul, and Assistant Superintendent Roxanne Griffith-Adams.
These charges have stemmed from a massive investigation conducted by SOCU into a $300M fraud allegedly committed at the Police Finance Office by several high-ranking officers of the GPF.