Antigua and Barbuda

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Legal Resources for Antigua and Barbuda Antigua and Barbuda 1981 Constitution E-Learning Resources eLearning Courses for Criminal Defense lawyers

Background

The islands were a part of the Leeward Islands colony which was defederated in 1956. In 1958 Antigua joined the West Indies Federation, but the federation was then dissolved in 1962. Provision was made for Antigua to assume a status of association with the United Kingdom in the West Indies Act of 1967. Antigua would be fully self-governing in all internal affairs, while the United Kingdom retained responsibility for external affairs and defense. Saint John’s is the capital.

By the 1970s Antigua had developed an independence movement, and in 1978 Antigua reversed its position and announced it wanted independence. In 1981 Antigua and Barbuda achieved independenceiv became a nation, with Vere Bird as the first prime minister.v The state obtained United Nations and Commonwealth membership and joined the Organization of Eastern Caribbean States. Bird’s Antigua Labour Party (ALP) won again in 1984 and 1989 by overwhelming margins, giving the prime minister firm control of the island’s government.

Bird retained office until his retirement in 1994, after which his son, Lester, served as prime minister from 1994 to 2004. He was succeeded by Baldwin Spencer of the United Progressive Party, who also spent a decade in office. In the June 2014 legislative elections, the ALP regained power under Gaston Browne. Browne and the ALP then retained power in early elections held in March 2018.

Antigua and Barbuda is a constitutional monarchy with a parliamentary form of government. The British monarch is the nominal head of state, represented by a governor-general. The current Governor-general since 2014 is Rodney Williams.

Antigua has a population of 101,489 mostly made up of people of West African, British, and Portuguese descent. An increasingly large percentage of the population lives abroad, most notably in the United Kingdom (Antiguan Britons), the United States, and Canada. The language most commonly used is English. A majority of Antiguans are Christians. Anglicanism is the most widely practiced denomination.

The Legal system

Antigua and Barbuda’s jurisdiction is based on English common law.

The Eastern Caribbean Supreme Court was established in 1967 and is responsible for the administration of justice in its member states including Antigua and Barbuda. It comprises the High Court of Justice and the Court of Appeal. Less serious cases are heard in magistrates’ courts. The Court of Appeal is itinerant. The High Court’s jurisdiction includes fundamental rights and freedoms, and constitutional issues.

Legal Aid

The Judicial and Reform Project is a five-year project, funded by the Canadian International Development Agency (CIDA), and designed to support improvements to the administration of law and quality of justice within the member states of the Organization of Eastern Caribbean States (OECS).

The Legal Aid and Advice Centre (LAAC) is a centre which was implemented by a government initiative in collaboration with the OECS-CIDA JLR project.

The LAAC was set up to assist people of low income who cannot afford to pay the full legal cost of a lawyer in private practice. The Service is not free. There is no absolute entitlement to legal aid. Assistance is based on need, circumstances and available resources.

The LAAC can help you if you have a problem in the following areas: Family Matters-domestic violence, Child Support, access to and custody of Children, adoption, divorce and maintenance, juveniles-Children under the age of 18 years, consumer Affairs Matters, Landlord and Tenant, Wills and Inheritance Matters, Affidavits, Power of Attorney, Deeds Poll, notarization of documents, Writing of Letters, Citizenship and Passport forms.

The government pays for the cost of a lawyer in capital cases if a defendant is unable to afford one.

Source of Defendants Rights

National Sources of Defendant’s rights:
The Constitution of Antigua and Barbuda from 1981 is the supreme law that governs the country. The Constitution lays out the legal foundation for the Antigua and Barbuda government as well as the rights and obligations of the general public and other public servants.

International Sources of defendant’s rights:
United Nations and Commonwealth membership of the nation provides international protection of the defendant's rights

Rights of the Accused

Right Against Unlawful Arrests, Searches and Seizures and right against Unlawful Detention: The constitution prohibits arbitrary arrest and detention. Police must bring detainees before a court within 48 hours of arrest or detention or file a motion requesting an extension. The law stipulates that prisoners must be released if these time limits are not met. It is prohibited for a person to be subjected to the search of his person, property, or entry by others on his premises. However, nothing contained in or done under the authority of any law shall be held to be inconsistent with or in contravention of this section to the extent that the law in question makes provision in the interest of public benefit, for the purpose of tax, preventing or detecting crime, protecting the rights or freedoms of other persons and enforcing the judgment or order of court. This must be shown to be reasonably justifiable in a democratic society.

Right Not to be Tortured or Ill-Treated: The Constitution prohibits torture and inhuman or degrading treatment. Slavery and forced labour are prohibited. However, any infliction of punishment done under the authority of the law is not inconsistent with this prohibition.

Right to Medical Care: Healthcare in Antigua and Barbuda is provided by both public and private providers. The government provides free or subsidized healthcare for some criteria of citizens (e.g. elderly, chronic non-communicable diseases, faith organizations) citizens, while private healthcare is available for those who can afford it. Foreign visitors are required to pay for healthcare services received in Antigua and Barbuda. Prisons have prison doctors. Routine treatment is funded by the prison however this does not apply to specialist or non-essential treatment

Right to be Informed of Charges: Defendants have the right to be informed promptly of the charges

Right to Presumption of Innocence: Defendants have the right to a presumption of innocence

Right Against Self-Incrimination: No person who is tried for a criminal offense shall be compelled to give evidence at the trial.

Right to Counsel and Effective Assistance: Right to counsel given. The government provides legal assistance at public expense to persons without the means to retain a private attorney, but only in capital cases.

Right to present a Denfense: Defendants have adequate time and facilities to prepare a defense. They have the right to confront prosecution or plaintiff witnesses and to present their own witnesses and evidence.

Right to Due Process: The constitution provides for the right to a fair and public trial by jury.

Right to Bail: There is a provision for bail. Right to no excessive bail.

Right Against Double Jeopardy: No person who shows that he has been tried by a competent court for a criminal offense and either convicted or acquitted shall again be tried for that offense or for any criminal offense of which he could have been convicted at the trial for the offense, save upon the order of a superior court in the course of appeal or review proceedings relating to the conviction or acquittal. No person shall be tried for a criminal offense if he shows that he has been pardoned for that offense. No person, after trial for any offense, is to be tried for attempting to commit the same offense

Right to a Fair Trial:

• Right to a Trial by Jury, Right to a Speedy Trial and the Right to an Impartial Judge: If any person is charged with a criminal offense, then, unless the charge is withdrawn, he shall be afforded a fair hearing within a reasonable time by an independent and impartial court established by law.

Right to Language Interpretation: They have the right to a free interpreter if they need.

Right to Habeas Corpus

Capital Punishment: The nation has the death penalty in respect of a crime of treason or murder of which he has been convicted
.

Right to Appeal: defendants have the right to appeal decisions of both the High Courtlv and the Court of Appeal, if they comply with the constitution’s requirements. Criminal or civil matters may be appealed. Citizens may also appeal adverse domestic decisions to the Eastern Caribbean Supreme Court.

Rights of Counsel

Right to Provide Representation, Access to the Client, to Information, Confidential Communication with the Client

The Freedom of Information Act 2003, part iv, 27 refers to legal privilege as an exception to access to information, which suggests that there is a right to information.

The defendant is permitted to defend himself before the court in person or by a legal practitioner of his choice and he shall be afforded facilities to examine in person or by his legal representative the witnesses called by the prosecution before the court.

The defendant shall be afforded reasonable facilities to consult a legal representative of his own choice who shall be permitted to make representations to the tribunal appointed for the review of the case of the detained person

Means of Protecting and Enforcing Rights

If any person alleges that any of the provisions of sections 3 to 17 (inclusive) of the Constitution has been, is being, or is likely to be contravened in relation to him (or, in the case of a person who is detained, if any other person alleges such contravention in relation to the detained person), then, without prejudice to any other action with respect to the same matter that is lawfully available, that person (or that other person) may apply to the High Court for redress.

Pre-Trial Procedure

Police procedures

Arrest, Search and Seizure Laws: Stop and Frisk allows the searching of your person and belongings without probable cause when you are out in public. Under a state of emergency, these operations would be implemented more rigorously in regimented communities. There exists the likelihood that during this declared “limited” state of emergency, the police would be permitted to forego the use of search warrants to enter and search your home.
Police are permitted to arrest without a warrant a person suspected of committing a crime. Criminal defendants have the right to a prompt judicial determination of the legality of their detention. The constitution prohibits arbitrary arrest and detention, and the government generally observes these prohibitions.
Any person found committing an offense punishable either upon indictment or upon summary conviction, may be immediately apprehended by any constable, or peace officer, without a warrant, or by the owner of the property on or concerning which the offense is being committed, or by his servant, or any other person authorized by such owner, and shall be forthwith taken before a Magistrate to be dealt with according to law. (s3)
The police must bring detainees before a court within 48 hours of arrest or detention. Criminal detainees were allowed prompt access to counsel and family members. The bail system requires those accused of more serious crimes to appeal to the High Court for bail, taking this responsibility away from the lower court magistrates.
Where a police officer has reasonable grounds for suspecting that there is, or there may be within the next following 72 hours, tainted property upon any land or upon or in any premises the police officer may lay before a magistrate an information on oath setting out those grounds and apply for the issue of a warrant to search the land or premises for tainted property (s25(1)).
Where a person is convicted of a scheduled offense and a police officer has reasonable grounds for suspecting that there is in any premises any document of the type specified in section 42 or police officer has reasonable grounds for suspecting that a person has committed a scheduled offense and there is in any premises any document of the type specified in section 42 then may apply for a search warrant.
If issued, can “seize and retain any document found in the course of the search that in the opinion of the police officer is likely to be of substantial value (whether by itself or together with other documents) to the investigation in respect of which the application is made.” (s47(2)(c))

Court Procedures

Pre-Trial: When the accused is committed for trial, a copy of depositions is to be supplied to the Director of Public Prosecutions. The Director of Public Prosecutions then has the power to remit the cause for further inquiry, to be dealt with summarily, or to remit the case for committal. They also have the power to enter nolle prosequi (a formal notice of abandonment by a plaintiff or prosecutor of all or part of a suit or action). More time may be granted by the Court for the defendant to prepare his defense or plead, however, this is not a right - the defendant is not entitled for his hearing to be delayed. If any person upon any indictment for any indictable offense pleads “not guilty”, they will be deemed to have put themselves upon the country for trial, and the Court may order a jury for the trial. (S19). If the person stands mute, he will be deemed to have answered: “not guilty”.

Trial: The constitution provides that criminal defendants should receive a fair, open, and public trial, and an independent judiciary generally enforces this right. Trials are by jury. Defendants enjoy a presumption of innocence, have timely access to counsel, may confront or question witnesses, and have the right to appeal. In capital cases only, the government provides legal assistance at public expense to persons without the means to retain a private attorney. Courts often reached verdicts quickly, with some cases coming to conclusion in a matter of days.

• Defendant: All persons tried for any indictable offense shall be admitted, after the close of the case for the prosecution, to make full answer and defense thereto by counsel learned in the law. The accused is entitled to a copy of the depositions and is entitled to inspect depositions at trial without a fee.
• Witnesses: Every person who is bound by recognizance to attend at any criminal sessions or sittings of the Court as to a witness, whether for the prosecution or the defense, in any case to be tried at such sessions or sittings, shall be bound to attend the Court, whether or not he has received any subpoena or notice, on the day appointed for the trial of such case, and on subsequent days of such sessions or sittings, until the case has been disposed of, or until he has been discharged by the Court from further attendance.
  If witness:
  • refuses to be sworn as a witness, or
  • having been sworn refuses to answer any question put to him by or with the sanction of the Court, or
  • Refuses or neglects to produce any document which is required by the Court to produce

  Without offering a sufficient excuse for such refusal or neglect, the Court may, if it thinks fit, adjourn or postpone the trial of the case for any period not exceeding eight days, and may in the meantime, by warrant, commit such person to prison.

  If they again, refuse to do what is acquired of them, the Court may, if it thinks fit, again adjourn or postpone the trial of the case, and commit him in like manner, and so again from time to time until such person consents to do what is so required of him.

  Every such person who is guilty of such refusal or neglect shall also be liable, on the summary order of the Court, either in addition to or in lieu of such punishment, to a fine of one thousand dollars, and in default of payment, to imprisonment for two months.

  Non-attendance of witnesses: Every witness who is present when the trial or further trial of a case is adjourned, or who has been duly notified of the time to which such trial or further trial is so adjourned, shall be bound to attend at such time, and in default of so doing, may be dealt with in the same manner as if he had failed to attend before the Court in obedience to a subpoena to attend and give evidence.

Sentencing: Any person, indicted for any offense made capital by any statute, shall be liable to the same punishment, whether he be convicted by verdict or confession, and this, as well in the case of accessories as of principals.
If any person be convicted of a felony not punishable with death, committed after a previous felony conviction, such person shall, on subsequent conviction, be imprisoned for any term not exceeding seven years, with or without hard labour, unless some other punishments be directed by any statute for the particular offense, in which case the offender shall be liable to the punishment thereby awarded, and not to any other.
Every person convicted of a felony, not punishable with death, shall be punished in the manner (if any) prescribed by the statute, or statutes, especially relating to such felony, and every person convicted of any felony, for which no punishment is specially provided, shall be liable to be imprisoned for any term not exceeding seven years.
When imprisonment is to be awarded for any offense, and no definite period is fixed by law, the term of such imprisonment shall always be at the discretion of the Court passing the sentence, and when a fine is to be awarded for any offense, and no amount is fixed, the amount shall be in the discretion of the Court passing the sentence.
The period of imprisonment, in pursuance of any day of passing sentence, shall commence on and from such sentence, but no time, during which the convict may be out on bail, shall be reckoned as part of the term of imprisonment to which he is sentenced.

Death Penalty: Whenever any offender has been convicted, before under any Court of criminal jurisdiction, of an offense for which sentence the offender is liable to, and receives, the Court shall order and direct execution to be done on the offender in the manner provided by law. Judgement of death to be executed on any prisoner shall be carried into effect in such place as the Governor General shall direct. If the judge or, as the case may be, the Chief Justice thinks such prisoner ought to be recommended for the exercise of the Royal mercy, or if from the non-decision of any point of law reserved in the case, it is necessary to delay the execution, he, or any other Judge of the same Court, may reprieve such offender for such period, or periods, beyond the time fixed for the execution of sentence, as may be necessary for the consideration of the case by the Crown. The Crown may extend the Royal mercy to any person sentenced, by virtue of any statute, to imprisonment, although such person is imprisoned for non-payment of money to some party other than the Crown.

Appeals: Where a Magistrate refuses to make a conviction the complainant may appeal to the Court of Appeal against such decision. Where a magistrate makes a conviction the party against whom the conviction is made may appeal to the Court of Appeal against the decision.
A person convicted on indictment may appeal under this Act to the Court of Appeal -

• against his conviction on any ground of appeal which involves a question of law alone; and
• with the leave of the Court of Appeal or upon the certificate of the Judge who tried him that it is a fit case for appeal against his conviction on any ground of appeal which involves a question of fact alone, or a question of mixed law and fact, or any other ground which appears to the court to be a sufficient ground of appeal; and
• with the leave of the Court of Appeal against the sentence passed on his conviction, unless the sentence is one fixed by law.

The Court of Appeal can quash the conviction, and direct a judgment and verdict of acquittal to be entered or order a new trial.

Rights in Prison

Death Penalty: Antigua and Barbuda received 6 recommendations to ratify the Second Optional Protocol to the International Covenant on Civil and Political Rights, and 14 recommendations to consider imposing or imposing a formal moratorium on the death penalty or to abolish it entirely. Antigua and Barbuda did not accept any of these recommendations, nor has it implemented them. Recalling that the death penalty had not been carried out in decades, Antigua and Barbuda’s delegation stated in the interactive dialogue that it considered that its society “was not yet ready to take a quantum leap and remove the death penalty from its legislation.” However, there have been no executions in Antigua and Barbuda since 1991, and no person is currently on death row. While a de facto moratorium is in place, there is no official moratorium on capital punishment. The death penalty is not available for minors or pregnant women.

Right to Humane Conditions of Confinement: Antigua and Barbuda received 5 recommendations relating to the improvement of its detention conditions. Out of these, Antigua and Barbuda accepted 2 recommendations that specifically called for efforts to reduce overcrowding and rejected the other recommendations concerning general detention conditions, health conditions, and conformity with the United Nations Standard Minimum Rules for the Treatment of Prisoners (the Nelson Mandela Rules). Antigua and Barbuda’s delegation recognized that overcrowding in prisons was a serious problem and that a new penal facility was urgently needed. The delegation noted that Antigua and Barbuda were trying to address overcrowding by pardoning people who had already served long prison terms and by releasing people on parole. Antigua and Barbuda have one prison, called “Her Majesty’s Prison.” Conditions at the prison have been severely criticized. As of 2018, the prison was “grossly overcrowded,” with poor ventilation and inadequate hygiene, and with conditions described as “harsh and life-threatening.” The prison has a capacity of 150, but during the reporting period, it held almost twice its capacity.

Torture Antigua and Barbuda received 3 recommendations to sign or ratify the Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. Antigua and Barbuda did not accept these recommendations. Antigua and Barbuda’s delegation noted that torture was not a recurrent matter in the islands but that the Government could consider the possibility of signing the Protocol.

Corporal Punishment: Corporal punishment shall not be inflicted in any prison. However, corporal punishment may be authorized for mutiny, incitement to mutiny, or gross personal violence to an officer of a prison when committed by a male prisoner. If corporal punishment is inflicted, no further punishment by way of confinement in cells or restricted diet shall be imposed.

Right to Medical Care in Prison: If the Governor General is satisfied that by reason of the prisoner’s ill health, it is unreasonable to detain him in prison, he may be released temporarily and conditionally. There will also be a medical officer in prison.

Right to Mental Health Care: La Comella Prison has an attending psychiatrist and psychologist, however, it is recommended by the CPD that their hours be doubled to meet the needs of every prisoner requiring mental health support.

Rights of Special Populations:

Juveniles: Arrangements shall be made by the Commissioner of Police for preventing a juvenile while detained in a police station, while being conveyed to or from any criminal from the court, or while waiting before or after attendance in any criminal court, from associating with any adult, not being a relative, who is charged with any offense other than an offense with which the juvenile is jointly charged.

Resources

- Antigua and Barbuda | History, Geography, & Facts | Britannica: https://www.britannica.com/place/Antigua-and-Barbuda

- Antigua and Barbuda - Oxford Reference: https://www.oxfordreference.com/display/10.1093/oi/authority.20110803095416943

- Antigua and Barbuda - New World Encyclopedia: https://www.newworldencyclopedia.org/entry/Antigua_and_Barbuda

- Antigua and Barbuda - The World Factbook (cia.gov): https://www.cia.gov/the-world-factbook/countries/antigua-and-barbuda/

- The Legal System in Antigua and Barbuda (commonwealthofnations.org): https://www.commonwealthofnations.org/sectors-antigua_and_barbuda/business/legal/

- Judicial System in Antigua and Barbuda (commonwealthgovernance.org): https://www.commonwealthgovernance.org/countries/americas/antigua_and_barbuda/judicial-system/

- Biblioteca Cejamericas: https://biblioteca.cejamericas.org/handle/2015/2929?show=full

- Ministry of Justice and Legal Affairs (gov.ag): https://legalaffairs.gov.ag/detail_page.php?page=legal_aid.php

- Antigua and Barbuda - United States Department of State: https://www.state.gov/reports/2021-country-reports-on-human-rights-practices/antigua-and-barbuda/#:~:text=Defendants%20have%20the%20right%20to%20timely%20access%20to%20an%20attorney,but%20only%20in%20capital%20cases.

- Antigua and Barbuda Constitution 1981: https://www.constituteproject.org/constitution/Antigua_and_Barbuda_1981

- Antigua-Barbuda-Factsheet.pdf (ijrcenter.org): https://ijrcenter.org/wp-content/uploads/2018/04/Antigua-Barbuda-Factsheet.pdf

- Healthcare in Antigua and Barbuda - The Borgen Project: https://borgenproject.org/healthcare-in-antigua-and-barbuda/

- national_policy_and_plan_of_action_on_healthy_ageing_2017-2027.pdf (who.int): https://extranet.who.int/countryplanningcycles/sites/default/files/planning_cycle_repository/antigua_and_barbuda/national_policy_and_plan_of_action_on_healthy_ageing_2017-2027.pdf

- Antigua and Barbuda: prisoner pack - GOV.UK (www.gov.uk): https://www.gov.uk/government/publications/antigua-prisoner-pack/antigua-and-barbuda-prisoner-pack

- Criminal Procedure Act: https://policehumanrightsresources.org/content/uploads/2016/07/Criminal-Procedure-Act-Antigua-and-Barbuda.pdf?x49094

- Country Reports on Human Rights Practices for 2011: https://2009-2017.state.gov/documents/organization/186694.pdf

- The Proceeds of Crime Act 1993 s25: https://ondcp.gov.ag/wp-content/uploads/2014/05/proceeds_of_crime_act_1993.pdf.

- Magistrate’s Code of Procedure Act of Antigua & Barbuda: https://laws.gov.ag/wp-content/uploads/2018/08/cap-255.pdf

- Antigua and Barbuda Joint Stakeholder Report for the United Nations Universal Periodic Review

- Laws of Antigua and Barbuda - The Prison Act Cap 341 s11: https://laws.gov.ag/wp-content/uploads/2018/08/cap-341.pdf.

- Laws of Antigua and Barbuda - The Juvenile Act Cap 229 s15.