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Curfew legal challenge dropped after accused changes plea

Marc Daniels, of Marc Geoffrey Barristers & Attorneys (File photograph)

A legal challenge that claimed strict curfew laws were unconstitutional and denied people a “reasonable excuse” will be rescinded after the man at the centre of the challenge admitted to a breach of the Government curfew.

Marc Daniels, the lawyer for Kinte Smith, who took action after he was charged with a curfew breach, launched a constitutional challenge in the Supreme Court against the wording of regulations around the curfew.

But the challenge now faces repeal after Smith, 35, pleaded guilty in Magistrates’ Court on Wednesday to a breach of the previous midnight to 5am curfew.

The challenge was filed in May on the basis that Smith’s fundamental rights, including his right to freedom of movement and freedom from unlawful arrest, were being infringed upon.

It also suggested that the wording of the laws tied the hands of magistrates because it did not give them discretion to consider if someone had a reasonable excuse short of a medical emergency to be out past curfew.

Despite the repeal, Mr Daniels, of Marc Geoffrey Barristers & Attorneys, said that he still believed the point brought forward were important to discuss.

He said: “The whole thesis of my motion was basically to enable any citizen the opportunity to raise a lawful defence outside of the scope of a medical emergency as to why they were in breach of curfew.

“By having two words and a comma – ‘reasonable excuse’, – inserted into the provision it would then afford citizens the opportunity of being in a position to raise a lawful defence and it would afford the courts the power in law to actually hear those circumstances and, if persuaded by those circumstances, enter a not guilty plea.”

Mr Daniels added: “As a counsel I think it’s unfair for citizens to be turned into criminals and to have these penalties levied against them in circumstances where they very well have very reasonable excuses for what happened.

“There’s no harm in a Government reassessing policies and impacts on people and making further amendments.

“Therefore there’s a balance being demonstrated for the overriding objective of what they’re seeking to achieve while also providing a safety valve for citizens not to be unduly punished.”

Mr Daniels said a hearing for the challenge was supposed to be set for early November, but his client was due to travel around that time and would not be present for the hearing.

He added that, because of this and Smith’s preference to “put this case behind him”, his client changed his plea.

Mr Daniels explained: “He made the decision that he wished to leave the island and that he doesn’t want to be confronted with a breach of bail and a subsequent arrest at a future date should he return to the island.

“We made a request to see if we could have him appear via video link, but the senior magistrate didn’t want to set a precedent for people who were merely travelling for various personal reasons.”

He added: “Obviously, from a legal standpoint, because he’s the client, I will now have to withdraw the constitutional motion concerning the issue on curfew because he’s no long aggrieved.”

The court heard that Smith was stopped in his car at a checkpoint near Grotto Bay in Hamilton Parish around 12.53am on January 12.

He told officers that he was previously held up at The Loren at Pink Beach in Smith’s after being searched by police.

When told he may be in breach of the curfew, Smith told officers: “Do what you’ve got to do.”

Mr Daniels told the court that his client was at a small birthday party at the hotel when someone had made a complaint about the gathering to police.

Officers, who came before midnight, searched everyone at the event and released everyone at about 12.30am after they found nothing of concern on anyone there.

Mr Daniels said that his client, who was not staying at the hotel, left to go to his home in St David’s after the search, but was stopped by a different set of officers near Grotto Bay.

He added that his client was not someone who deserved ”significant punishment” in this instance because “he had no intention of being out past curfew”.

Senior magistrate Juan Wolffe fined Smith $500. He also acknowledge that Smith found himself in his situation “through no fault of his own” and may have made it home before curfew had he not been held up at the hotel.

• It is The Royal Gazette’s policy not to allow comments on stories regarding court cases. As we are legally liable for any libellous or defamatory comments made on our website, this move is for our protection as well as that of our readers.