EDITOR, The Tribune.

THE story in The Tribune on 4th November 2024 of the arrest in Freeport of Attorney David Cash on Saturday 2nd November and his being charged with disorderly conduct raises, to my mind, some interesting but disturbing constitutional and legal issues.

1) Is there now a police-imposed limit on the number of lawyers that can visit or represent a defendant while in custody?: While Article 20(2)(d) of the Bahamas Constitution speaks to a criminal defendant being permitted to defend him or her self “by a legal representative of his own choice”, many defendants nowadays are and have been represented by more than one lawyer. In any event, the Constitution makes clear that it is the defendant’s choice as to who is his lawyer (or lawyers), not that of any police officer.

2) Who or what is the defendant’s “lawyer of record” at the arrest and/or charging stage of a criminal investigation?: There is no mention in the Criminal Procedure Code or any other statute of a so-called “lawyer of record” so the question arises as to where this title or designation comes from and how is it obtained or applied while a defendant is still in custody? The fact that one attorney visits and speaks to a defendant while in custody does not, so far as I am aware, make that attorney the “lawyer of record” to the exclusion of any other attorney as the defendant is free to have as many attorneys of his or her choice as he or she wants to represent them. It may well be that the defendant’s family chooses a lawyer but, after speaking to that lawyer, the defendant decides he or she wants someone else. Under this mistaken rationale, the first lawyer is the “lawyer of record” according to the police and the defendant cannot see or speak another lawyer of his or her choosing. The “lawyer of record” business does not arise until the defendant is formally charged in court and one or more attorneys put their name on the court’s record as representing that person. Even so, that action is not etched in stone as lawyers may drop out of a case or the defendant may hire other lawyers in replacement. If there were any doubts about Mr Cash’s statement that he had come to Freeport to see his client, in my opinion the prudent police officer would have gone to the defendant and enquired from her whether Mr Cash was in fact her attorney in addition to or in replacement of the “lawyer of record”.

3) Has the Commissioner of Police authorised the police in Freeport or Grand Bahama or anywhere else in The Bahamas to have different processes and procedures from those that apply In New Providence?: As far as I am aware, the Royal Bahamas Police Force is one organisation operating under one set of laws, rules, regulations, policies and procedures and they supposedly carry out their duties under those documents the same way In Freeport as they do in Nassau. Mr Cash’s account of what happened in the newspaper report creates the impression that the police in Freeport operate differently from their colleagues in Nassau. If that is so, then the police need to clarify for lawyers and for the public whether this is in fact the case and whether lawyers and the public can expect different treatment in Freeport or any where else from what they receive in Nassau. In situations such as this, I am reminded of the Latin quotation “Quis custodiet ispos custodes?”, which literally means “Who will watch the watchmen themselves?”

The Bahamas Bar Association needs to weigh-in on this matter with the Commissioner of Police and the Attorney-General and get clarification or a position paper so that there are no repeats of this type of incident when more than a second or other attorney endeavors to visit a person while in custody at the request of the person or their family.

VINCENT WALLACE WHITFIELD

Nassau,

November 5, 2024.