Editorial | Scamming loopholes

This newspaper had hoped that Chief Justice Bryan Sykes got his sums wrong, and would drastically revise downwards the number of so-called lottery scamming cases that have been abandoned for want of evidence during the current session of the Trelawny Circuit Court. The chief justice’s count, disclosed this week from the bench in Trelawny’s capital, Falmouth, was at least 32.

Unfortunately, the figures, as was confirmed by the Office of the Director of Public Prosecutions (ODPP), were significantly higher – by nearly 63 per cent, or 20 cases.

The reason for the discontinuance: the police’s Communication Forensic and Cyber Crime Division (CFCD) had not provided reports on the electronic devices used in the alleged crimes.

An obvious and urgent question raised by these revelations is whether similar cases have had to be discontinued for the same reason in other courts, and how many. In that regard, the Court Management Division should publish historic data on the outcomes of lottery scamming and related cases, going back to 2013 when the Law Reform (Fraudulent Transactions) (Special Provisions) Act came into force, aimed specifically at targeting this kind of electronic fraud.

And while it is an important stakeholder in the process, it is not only for the ODPP to explain why the CFCD is unable to complete its analyses on time, leading to the collapse of cases. The police cannot be quiet on a matter which, on the face of it, raises major challenges to one of their key strategies for containing and reducing crime in Jamaica: dismantling gangs.

INSIDIOUS CRIME

Lottery scamming is an especially cynical and insidious crime. Its perpetrators mainly target old, vulnerable people overseas, usually in the United States, who are swindled out of their money. Several years ago, the value of the fraud was put at over US$300 million annually.

In this con, people are told that they have won sweepstakes but have to send money to the perpetrators to cover taxes or cover other expenses. Often, the demands escalate, to the point where the victims empty their bank accounts or are willing to dispose of assets to meet the payments. In some instances, the swindlers resort to threats.

But the victims, and impact, of this increasingly transnational crime are not only abroad. The crime earns big money, and in Jamaica its players often carve out zones of operation from which they attempt to muscle out competitors.

Indeed, the police have said that that lotto scamming-based competition for turf and the critical demographic information that facilitates the swindle ­– so-called lead sheets – help to fuel Jamaica’s inter- and intra-gang violence, which accounts for around two-thirds of the island’s approximately 1,500 murders annually.

It was in part because of this lotto scamming-induced violence, as well as pressure from the United States, that Jamaica passed the 2013 law extending the range and reach of fraudulent behaviour and specifically use of electronic systems and devices as criminal offences. Possession of certain kinds of information from which a reasonable inference can be made that it is used, or for use, in scamming is also a criminal offence.

EXTRACTING DATA

However, examining electronic devices and extracting data/information from them can be critical in proving these cases, which is what Justice Sykes highlighted this week with respect to the discontinued matters and another a murder case over which he is presiding.

Having been told that the defendant’s lawyer in the murder case had only just received, and had not yet had time to review information provided on a CD by prosecutors, Justice Sykes wanted to know why that happened. A delay in the provision of examination reports by the CFCD!

That was the backdrop to which Justice Sykes spoke about the scamming cases.

Said the chief justice: “What is happening since I have been here is that the persons who are responsible for this examination of electronic equipment don’t seem to be able to get any report done in time. So far, with the possession of identity information, I am certain that at least 32 cases that the Crown had were discontinued because of the failure to complete even one examination.” Some of these matters go back more than half a decade.

The ODPP says the problem has to do with the insufficiency of resources at the CFCD, including competition for its staff to better-paying employers. Whether the recent adjustment of salaries of police officers will address this matter is not clear. The constabulary has to respond to that question as well as the larger strategic matters raised by the Trelawny debacle.

Jamaica’s court system has a significant backlog of cases, which the chief justice has vowed to clear within a few years to reach the global benchmark of cases traversing the lower courts within two years.

Justice Sykes’ revelation, therefore, should not be seen in isolation. While the decision on discontinuing the scamming cases did not originate from the bench, it has to be seen in the context of the broader move by the courts to enforce citizens’ constitutional rights to timely trials.

The Court of Appeal decision last month to overturn Orville Watson’s 2016 conviction because of a seven-year delay in providing transcripts of the case was another warning on that front.