Letter of the Day | Toy guns are not child’s play

THE EDITOR, Madam:

A water gun or two mental pipes bound together which has the appearance of a double-barrelled shotgun found in your possession can be considered an imitation firearm which attracts a mandatory minimum sentence of 15 years in prison. Under the new Firearms (Prohibition, Restriction and Regulation) Act 2022, an imitation firearm is considered a prohibited weapon and is defined as ‘anything which has the appearance of being a firearm, but is not a firearm, whether or not such imitation firearm is capable of discharging a shot, bullet or other missile’.

While an imitation firearm lacks the capacity of a real, loaded firearm to kill or injure, it has much the same capacity to frighten and enforce compliance as many imitation firearms are almost indistinguishable from the real thing and those threatened have little opportunity or inclination to examine the nature of the weapon used. It is therefore no surprise that Parliament has legislated to criminalise the use and possession of imitation firearms.

The concern is Parliament’s insistence upon trespassing on the role of the judiciary by imposing a mandatory minimum sentence for the possession of an imitation firearm. This means that the sentencing judge is unable to consider the nature and character of the reason the imitation firearm was in one’s possession or any other mitigating feature of the case which may be relevant to sentencing process. It therefore opens the door to judges, albeit reluctantly, imposing mandatory minimum sentences which may be considered manifestly excessive and unjust in the circumstances. Is it to be believed that Parliament gave no thought as to any circumstances where an individual may have had a reasonable excuse or an innocent motive to have an imitation firearm in his/her possession?

Career Day is widely celebrated, children wear custom fitted police and soldier uniforms and some have toy guns to complete their look. Interestingly, ‘but for’ the protection of section 63 of the Child Care and Protection Act stating that “it shall be conclusively presumed that no child under the age of twelve years shall be guilty of an offence”, a child caught in possession of a ‘toy gun’ would be liable under section 5 of the Firearms Act of having in their possession a prohibited weapon.

Young teenagers, particularly vulnerable boys who may be playing an innocent game of ‘gunman and police’ or ‘water war’ found in possession of toy guns by security forces may very well find themselves running afoul of the law in its current state.

Perhaps, legislators ought to amend the Act in relation to imitation firearms to provide that the accused show that ‘he/she has lawful authority or a reasonable excuse to have an imitation firearm’ as is the position in the UK Firearms Act of 1968. Legislators ought not to place our laws in a straitjacket, and that even with the best of intentions from parliamentarians, laws must not be unconstitutional and unjust towards Jamaican citizens.

MATTHEW HYATT

Attorney-at-Law

mhyatt@kjslaw.com.jm