The following release was sent to RTC News by Huw Sheppard, Attorney General of the TCI
I have been asked to consider exercising my powers under s.100 of the Constitution to bring to an end the criminal proceedings against one Kevin Bingham. Bingham was arrested on 15 November 2012 when Police acting on information received, executed a search warrant at his home and recovered an AK-47 assault rifle. He was subsequently charged with the unlawful possession of the firearm. Bingham appeared before The Hon Mrs Justice Joyner in the Supreme Court on 20 November, when he was remanded in custody until 13 January 2013.
I have examined the available evidence very carefully. It seems that there is no dispute as to the essential facts, and I repeat them here so that the basis of my decision may be clearly understood. Kevin Bingham and a friend visited the Hole at Long Bay, Providenciales on Sunday 11 November 2012. While there, Bingham dived into the Hole to recover a wallet dropped by his friend. He recovered the wallet and also discovered and recovered a corroded AK-47 assault rifle.
Bingham took the AK-47 home with him, intending to surrender it to the police, but not until he had obtained guidance from his parents, who were away from the Islands at that time.
The Police went to Bingham’s home on 15 November 2012, where he readily admitted possession of the weapon and handed it over to the officers. He was arrested, subsequently interviewed under caution and charged.
In deciding whether to exercise my power under s.100(2)(c) of the Constitution and bring to an end the proceedings against Kevin Bingham, I apply the standard two-stage test used by the Crown Prosecution Service in England and Wales and by most other prosecutors in the Commonwealth:
1. Is there sufficient credible evidence available to be reasonably certain of securing a conviction? and
2. Does the public interest require that this matter be prosecuted?
From the brief details I have already set out, it is apparent that the answer to question 1 is “Yes” and my task is therefore focused on answering the second question.
I take these factors into consideration: the evidence shows this was a chance finding. The weapon was unusable as a firearm without some attention, but it was clearly an AK-47 and thus a modern weapon rather than an antique. Kevin Bingham did not conceal his recovery of the weapon at any stage and co-operated with the Police. Nevertheless, here was a young man who recovered a modern firearm from the sea and who should have realized that this should have been brought to the attention of the police at the earliest opportunity. There is no evidence to suggest that there was ever any danger to the public at large, that Kevin Bingham retained possession of the AK-47 for any improper purpose nor that he is in any way connected to persons who might wish to put the firearm to unlawful use.
In my view, the evidence shows only that Kevin Bingham displayed a complete failure of judgment, but had no real criminal intention. The changes to the firearms legislation in 2010 were not intended to inflict draconian punishment for such crassness. It follows that the public interest does not require a prosecution in this case. I have therefore directed that a nolle prosequi be entered in relation to this matter.
Huw Shepheard LLB, MBA
Attorney General and Director of Public Prosecutions
Turks and Caicos Islands
23 November 2012
