'Shocked and amazed'

'Shocked and amazed'

AG says serious shortcomings in enforcement after anti-gang law review

Friday, May 29, 2020

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ATTORNEY General Marlene Malahoo Forte says the review of the country's anti-gang law by a joint select committee (JSC) of Parliament over the past almost two years has revealed serious shortcomings in the enforcement mechanism, although, for the most part, the law is a good one.

The Criminal Justice (Suppression of Criminal Organizations) Act was passed in March 2014 and went before the JSC for review in October 2018.

Speaking in the House of Representatives on Wednesday following the tabling of the report from the review, Malahoo Forte said she was “shocked and amazed” at the level of ignorance at the enforcement level about the suite of powers that are already contained in law.

The attorney general has expressed similar concerns during the committee's deliberations over the past months.

“What struck me more than anything else is that presentations came from the Ministry of National Security, as well as the Jamaica Constabulary Force, about matters which were already contained in law. So we had numerous requests for the inclusion of powers which were already provided for, and it underscored the concern raised that there is a serious issue in ensuring that those who have responsibility for enforcing laws are trained and educated, and are themselves sufficiently informed about the provisions of the law… I got the sense from the process that there was the feeling that if something was not contained in the actual law, then it did not exist,” she told the House, adding that this was a serious indictment.

She said, overwhelmingly, what was revealed is that there is need for a proper suite of police powers under one piece of legislation, as well as another suite of surveillance powers which would enable the police to address the threat of organised crime to national security. Malahoo Forte said she also anticipated the passage of the amendments in a timely manner, but noted that this was not an easy process.

Manchester Central Member of Parliament Peter Bunting, who piloted the Bill in the House in 2014 as then national security minister, pointed out that the objective had been to create a new class of conspiracy-type offences, similar to organised crime legislation in the UK and other territories.

He said that the anti-gang law is a well-drafted piece of legislation that is solid and potentially useful.

Bunting said most of the recommendations from submissions to the JSC were not accepted on the basis of infringement on rights of the accused, or because they were provided for in other pieces of legislation, or because there was misunderstanding of the provisions.

“To the extent that some recommendations were accepted I would say they were tweaking the legislation, perhaps enhancing it, but I wouldn't say they were changing it in any fundamental way,“ he said.

The primary challenges to getting more convictions, he said, is not legislative, as there are effective pieces of legislation that are already in place but these are not being optimised.

“I would say that getting more resources and training for intelligence collection for investigations, and case preparation for adequate prosecutorial resources, including issuing more fiats to agencies like MOCA [Major Organised Crime and Anti-Corruption Agency] so that they can speed up the prosecutions, and quicker trials and certainty in trial dates — these things will have a lot more impact than just more legislation,” Bunting said.

The Manchester Central MP pointed out that urgent amendments are needed to update other complementary or related pieces of legislation, such as the Interception of Communications Act, to reflect technological advances.

He suggested, too, that the Proceeds of Crime Act should also be amended to introduce the Unexplained Wealth Order, which is used in the UK to take the assets, through court procedures, of individuals who it is felt obtained their wealth corruptly in various parts of Europe and around the world, and hid it in the UK.

“We have a similar offence under the Corruption Prevention Act that's called illicit enrichment, and it really only applies to public servants. So I would support the idea of bringing the Unexplained Wealth Order, which puts the burden of proof on the suspect to say how they legitimately came by those assets,” he explained.

Additionally, Bunting said the Justice Protection Act needs updating in order to better protect witnesses.

Opposition spokesman on national security and MP for St Catherine Southern, Fitz Jackson urged the Government to move swiftly to effect the changes, which will empower the security forces and the courts to be more effective.

“There are certain structural changes that will have to be made in some of these organisations to accommodate the legislative changes… It's going to take months for the operational effect of these changes to come to bear and to make a difference,” he stated.

National Security Minister Dr Horace Chang, who chaired the JSC, assured the House that the ministry will make every effort to move through the next steps swiftly. He said except for the creation of MOCA, very little has been done to restructure the police force to deal with the challenges it now faces and provide the requisite equipment to address the types of crimes with which the country is now faced.

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