JO - The perils of gathering clean evidence

From my archive of press clippings:

Jamaica Observer

The perils of gathering clean evidence

Mark Wignall

Thursday, March 11, 2010

COLLEAGUE columnist Ken Chaplin's excellent Tuesday column, "Dudus, US Govt, interception of information", in explaining that Prime Minister Golding was acting on solid ground in refusing the extradition based on evidence gathered through a breach of Dudus's constitutional right -- his phone was tapped without the required judicial authorisation -- wrote, "The law... requires that for intercepted communication to be admissible in any criminal proceedings, it must have been obtained, disclosed and used in accordance with the provisions of the Act. Golding said that this was not done."

Read the whole column here.

Snippet(s):

"
To me, one part of the problem that has cropped up with the understanding of the extradition treaty is, which parts of it are, prior to granting an extradition request, legally determinable in Jamaica and by what process? On the other side, which conditions of the treaty is it that empowers the Americans the right to render us speechless, that is, we must just sign and give up the person without further ado?

I have never been one of those who believe that the prime minister should never have involved himself in the delicate matter of the Dudus extradition request. Hell, whether the prime minister wanted to or not, he was involved."

"Of the 26 extradition requests received since he became prime minister, he has had no occasion (except for Dudus) to go full frontal in supporting any other person's "constitutional right". So the very fact that he has come out in such strong support of Dudus, it ought to mean that he has taken legal advice from the highest levels before committing himself and is convinced that his legs are sturdy.

If, based on the treaty, it was determined that the American outfit which obtained evidence did so by the illegal wiretaps of phones, must we surmise that all the Americans say they have on Dudus is a file of telephone transcripts and the actual recordings? We would be naïve to believe that."

&

"We must bear in mind that the Americans are not under any romantic illusions about what sectors of our society are corrupt. From their own experiences, they have long recognised that at the end of the day a president like, say, the late Richard Nixon and Bill Clinton (with Monica Lewinsky), and most other people are all humans under the skin and especially under the covers. Far from being perfect, what America has that is the envy of the purists among us is the workable synergy which springs from the lateral and horizontal push-pull of checks and balances, with each level having probing tentacles on the other.

I am certain that the Americans must have known of the breach, so the question to be asked is why did not the investigating entity abide by the conditions of the Act and apply to a judge in Chambers for authorisation for a wiretap or a series of wiretaps? It is my belief that they acted outside of the specific provision because there is not a single layer of the local system which they trust. Not a policeman, not a judge."

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