Ashely Roopchansingh
Student, Hugh Wooding Law School
It is a fundamental principle of law that an arrested person has a right to communicate with an attorney without delay.
This fundamental human right is guaranteed by the Constitution of the Republic of T&T—see section 5(2)(c)(ii). When an accused person is arrested, he is deprived of his liberty. For those offences for which bail cannot be granted, he remains in custody until the determination of his trial. It is for this reason the right to instruct and hold communications with an attorney who will do his best to advance the accused person’s case is indispensable to the criminal justice system, and thus afforded constitutional protection.
However, in many instances, an arrested person is ignorant of his constitutional right to communicate with an attorney without delay upon his arrest. Even where he knows such a right exists, in most cases, an arrested person is too confused by the events of the arrest to remember his constitutional rights.
As such, the court has by judicial decisions expanded on an arrested person’s right to an attorney. In the case of Attorney General v Whiteman [1992] 39 WIR 397, the Privy Council noted that the right to retain and instruct an attorney without delay is of very little value if an arrested person is not informed of this right.
Consequently, on a broad interpretation of the Constitution, the Privy Council held that an arrested person not only has a right to communicate with an attorney without delay, but he also has a right to be adequately and promptly informed by police officials of his right to an attorney.
As a constitutional guarantee therefore, each arrested person has a right to retain without delay an attorney and hold communications with them, as well as a right to be informed of this right. Nonetheless, less economically advantaged people do not ordinarily have the means available to them to retain an attorney of their choice.
As such, to ensure all people have a right to legal representation, the legal profession has developed specific safeguards to guarantee this right. To this end, the Legal Aid and Advisory Authority established by the Legal Aid and Advice Act Chap. 7:07, provides affordable legal advice and assistance to persons of moderate means.
Because an accused person is deprived of his freedom and liberty, legal aid becomes equally indispensable to ensuring that justice is not only done but seen to be done by assigning competent and experienced attorneys promptly to people who indicate they cannot afford to privately retain one.
Where an arrested person is denied legal access and is not informed of his right to legal access, it constitutes a breach of his constitutional rights for which he can commence a constitutional motion in the High Court of T&T for compensation for such breach.
• This column is not legal advice. If you have a legal problem, you should consult a legal adviser.