Police seek more powers

Want to get access to mobile phones of suspects without court order

BY ALPHEA SAUNDERS
Senior staff reporter
saundersa@jamaicaobserver.com

Wednesday, November 21, 2018

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THE police are seeking powers to force suspects in organised crime investigations to give them access to their mobile phones, and other electronic devices, without a court order.

This is one of the provisions being proposed in the submission from the Jamaica Constabulary Force (JCF) on the Criminal Justice (Suppression of Criminal Organisations) Act of 2014, which is now before a Joint Select Committee of Parliament for review.

The police say they have encountered a number of challenges in enforcing the provisions of the legislation since it was enacted in April 2014. As such, the JCF has put 15 proposals before the committee for its consideration. The proposals also include a controversial one-week pre-detention period for suspects, without charge.

At yesterday's meeting of the committee, senior officers explained that the provisions, under existing legislation such as the Cyber Crimes Act, and the Interception of Communications Act, were not suitable for the purposes of dealing with organised crime.

They said the procedural delays that are presented under these laws could prove to be a matter of life and death in some investigations.

In its justification for the proposal, the police say currently when a cellular phone is seized and it is locked with a password, there is no obligation on the person from whom it is seized to provide the password to the police.

“The police will, therefore, have to send the cellular phone to the specialists at the Communication Forensics and Cybercrime Unit for them to unlock the phone and analyse same for evidence. This process takes time and can result in valuable leads being lost, which could have been acted upon if the police were able to access the phone from the time it was seized,” the submission outlined.

“The JCF is, therefore, recommending that anti-organised crime legislation make provision to compel a person who has been arrested for reasonable suspicion of committing an offence under the Act to provide the police access to their device,” said the submission.

It is also being proposed that it is made an offence for a person to wilfully refuse to grant the police access to the device.

The constabulary's Legal Officer Alethia Whyte explained why the police need more powers: “In circumstances where you're operating in a time-sensitive environment, where you have reasons to believe that this device can have certain leads upon which you may need to act immediately, the provisions under the Cybercrimes Act or the Interception of Communication Act would not ideally fit in these types of circumstances.”

Deputy commissioner of police in charge of crime and security Selvin Haye also explained that there are instances where the police's own experts are unable to retrieve the information from the devices, as the expertise is beyond their capability.

The senior officers expressed frustration with the response time by telecoms providers for information requests. They also pointed out that there are also issues relating to the length of time for which records are kept, and that valuable evidence is being lost.

However, lawmakers, while agreeing that this gap in the existing legislation should be addressed, were not convinced that a new provision in law is necessary.

Attorney General Marlene Malahoo Forte said the authorities must proceed with extreme caution.

“We are grappling with a larger issue; where the international jurisprudence within the Commonwealth is moving in a direction set largely by the jurisdictions, including the UK, where there is no written Constitution and a lot of the tools that are being developed are tools which go in a different direction than some of the rights that are fundamentally guaranteed in our Constitution,” she stated.

“What is emerging is a tension between what is required to combat the level of criminality and realities without our own laws; you can't go too far in one direction. If you guarantee rights, those rights have to be upheld and respected,” she stated.

She also pointed to the provisions under the Cybercrimes, Telecommunications, and Interception of Communication Acts. “The question is whether those provisions are sufficient to enable the JCF to get the outcome it desires. Preliminarily, it appears yes, save and except for the need to specify a timeframe within which the telecoms provider is to respond. In respect of allowing for access outside of a court-driven process, we would have to proceed with utmost caution,” she stressed.

Malahoo Forte argued that current legislation does provide for emergencies, and that any revision of these must be accompanied by stringent safeguards.

She added that the emergency provision under the Interception of Communication Act has in fact been utilised. “Built into that was a recognition that there are cases of urgency when you may not have the time to do the written applications, so you can go orally and satisfy the court and you get your warrant. But it also provides for a back filling within 72 hours. I think we would be going down a slippery slope if we relax those provisions; they are there for a reason,” she told the committee.

The JCF is to continue with its submission when the committee meets on December 5 and 12.

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