Vagueness case in Barbados

Section 75 of the Barbados Defence Act provides:

Conduct to prejudice of military discipline

75.

Any person who, being subject to military law under this Act, does, or omits to do, any act or thing that is prejudicial to good order and military discipline is guilty of an offence and liable on conviction by court-martial to 2 years imprisonment or any less punishment provided by this Act.

In the first appeal of a court-martial, the Barbados Court of Appeal this week overturned the conviction of an officer of the island country's Coast Guard. According to this Barbados Today report by Fernelia Wedderburn:

In 2019, [David Anthony] Harewood, an 18-year military veteran, was court-martialed and convicted of charges that on an unknown date in January 2018, being a commissioned officer of the BDF, and having knowledge of a threat to the life of Ordinary Seaman Marlon Scott, he neglected to inform his superiors of the threat; and that he conducted unauthorised information-gathering operations, conduct unbecoming of a commissioned officer of the BDF, between January 1, 2014, and September 30, 2018. . . .

“While we can generally and objectively agree that it is probably contrary to the maintenance of good order and discipline among members of the army to have persons conducting unauthorised information-gathering operations, there must be some framework, formal or informal or military or Barbados Defence Force policy or regulation, known to officers and other ranks alike, establishing or defining what constitutes unauthorised information-gathering operations.

“There must be some legal certainty that informs a citizen or, in this case, a soldier what is prohibited so that he or she can regulate his or her conduct,” said Justice [Margaret] Reifer.

The Court of Appeal judge added that clear reporting guidelines were also necessary.

“The prosecution has failed to show, unequivocally, from whom the applicant as an officer in the Barbados Coast Guard should have sought authorisation and to whom he should have reported results of his alleged information-gathering operations if it was established that this was, in effect, the conduct that he was engaged in . . . . There was no uncontroverted evidence of a formal or informal standard operating procedure in this regard,” she said.

“While accepting the inherent jurisdiction of the Barbados Defence Force to exercise disciplinary control over its members, this does not automatically translate to infusing a limitless scope to Section 75 [of the Defence Act] for the creation of criminal offences without due process. Stated differently, the prosecution has failed to discharge the burden of proof that the offences charged exist expressly and or impliedly.”

Under § 8 of the Barbados Caribbean Court of Justice Act, the decision may seemingly be appealed to the Caribbean Court of Justice if that court grants special leave. The Court of Appeal's decision in Harewood v. Barbados Defence Force can be found here.