The proposed new anti-crime legislation

David Batts, Contributor

1. There is before the Parliament of Jamaica proposed legislation which is not in the best interest of the people whom the 60 members of Parliament have sworn to represent.

2. The legislation is flawed in concept and in actuality. Conceptually, it is wrong to believe that a democratic state can "out-terrorise" the "terrorist". Further, by acting contrary to democratic ideals, the democratic state resorts to unlawful conduct and loses the moral authority to label the terrorist as a criminal. If passed into law, these bills will serve to further alienate the very people whose cooperation the police need. In actuality, the bills lack rationality and betray a singular mistrust in the judiciary of the country.

I will now briefly summarise the effect of each bill and comment accordingly.

3a. Bills to Amend the Offences against the Person Act and to Amend the Firearms Act:

These Bills establish a minimum 15-year sentence for certain gun-related offences. As with all statutes that impose a minimum sanction without any allowance for individual circumstances, it is guaranteed that one day someone who has been convicted of such an offence will be unfairly punished. The circumstances in which crimes are committed and the circumstances of the individuals who commit such crimes vary greatly. If sentencing is to achieve its objectives of rehabilitation, deterrence and prevention, it must be tailored to the circumstance of the individual before the court and not be solely based on general policy concerns.

3b. A Bill to make interim provision in relation to the grant of bail:

This bill provides that for certain specified offences and where in relation to other offences a person has a previous conviction, the person charged is not able to obtain bail until 60 days have elapsed since the date on which he was first charged. After 60 days, he must satisfy the court that he is eligible for bail. In the course of the 60-day period, the person charged is to be brought before the court periodically for the court to consider whether the section mandating 60-day detention applies to that person. This bill, contrary to Sections 15 and 20 of the Constitution, removes the presumption of innocence and the right to judicial review of the need for incarceration. In short, once charged, a person is punished by 60 days detention without regard to whether or not the person is guilty of a crime.

Special powers

3c. A bill to extend the powers of arrest and detention under the Constabulary Force Act:

This provides that where the security forces are exercising jurisdiction in a locality in respect of which a "cordon or curfew" has been declared, they may proceed to arrest persons whether "within or without" that cordon or curfew. The question which arises is what then is the purpose of special powers within an area identified as a cordon if those powers can be exercised outside of that area.

The bill also provides that a justice of the peace can authorise the detention of a person and his remand in custody for 72 hours if satisfied "that the arrest or detention is reasonably required in the interest of justice". This meaningless phrase is not defined. The Constitution provides for arrest upon reasonable suspicion that a crime has been, is being or is about to be committed by the individual arrested. Does the "interest of justice" connote something else? If so, what is it and can it possibly be lawful.

3d. A bill to amend the Parole Act:

This seeks to provide that in relation to certain offences the convicted person is not eligible for parole until a period of not less than 10 years has been served. Eligibility for parole is a matter of policy, but the undersigned has not seen any studies or reports from the parole board or other relevant authorities to support the need for this new minimum standard.

3e. A bill to amend the Bail Act:

This bill gives the director of public prosecutions a right of appeal against a decision to grant bail and for certain specified offences and puts the onus on the person accused to satisfy the court that bail should be granted. This bill is objectionable because it reverses the constitutional right to a presumption of innocence. It is the State which has alleged that an individual is guilty of a crime and which has taken the person into custody. It should, therefore, be for the State to demonstrate why that individual needs to be remanded prior to his trial. An individual is assumed to be innocent and hence entitled to his liberty in the absence of evidence to the contrary. There is no objection in principle to the Crown having a right of appeal but the bill as framed removes any judicial discretion as to the question of whether bail should be granted pending the appeal.

4. It is my view that the security forces already have sufficient power and there are already in place sufficient laws to deal with crime. The law allows for arrest upon reasonable suspicion and extended powers of curfew and cordon. What is lacking is public confidence. These can be restored by a sustained approach to policing which is firm but fair and is intelligence driven.

5. When courts function effectively and justice becomes swift and sure, the democratic society is able to demonstrate to the citizenry that it is worthy of their support. If citizens have confidence that the agents of the State are acting in their interest and not against them, the terrorist gunman will be ostracised.

These six bills will not achieve that end and do nothing to advance the cause of justice or the rule of law.

David Batts is an attorney-at-law, and vice-chairman of the Jamaican Independent Council for Human Rights.