Legislators propose change to strengthen anti-gang law

BY ALICIA DUNKLEY-WILLIS Senior staff reporter dunkleya@jamaicaobserver.com

Monday, November 11, 2013

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MEMBERS of the Joint Select Committee of Parliament reviewing the Criminal Justice (Suppression of Criminal Organisations) Act 2013 are at one in calling for an amendment to the proposed Bill to ensure that gangs which hold communities or individuals hostage by way of threats can be prosecuted on those grounds alone.

The issue came up during the examination of Section 2 (b) (i) and (ii) of the Bill, called the Anti-Gang Legislation, which defines what constitutes a criminal organisation under the Act at Gordon House on Thursday.

Based on that definition, a "criminal organisation" means any gang, group, alliance, network, combination or other arrangement among three or more persons (whether formally or informally affiliated or organised and whether or not operating through one or more bodies, corporate or other associations) that — (a) has as one of its purposes the commission of one or more serious offences; and (b) in relation to which the persons who are a part thereof or participate therein (individually, jointly or collectively) -- (i) have engaged in unlawful activity in order to obtain, directly or indirectly, a Þnancial or other material beneÞt or to gain power or inßuence; or (ii) issue threats or engage in conduct to create fear or to intimidate or to exert power or inßuence in communities, or over other persons.

However, Opposition committee member Delroy Chuck, who led the charge, was of the opinion that the sub-clause should stand on its own since the activity was serious enough to warrant action by the courts.

"Am I to be convinced that if in fact a person is doing any of b (i) and b (ii) unless we can demonstrate that they are engaged in a serious offence they can't be charged under this Act? I would remove the 'and' and put 'or' because, if we can demonstrate that they have joined the gang to engage in a serious offence, why do we have to do more? If we can demonstrate that they have issued threats or they are threatening a community to create fear and intimidation unless they keep quiet, shouldn't that be enough?" Chuck, who is an attorney-at-law, wanted to know.

"We know how gangs operate and take over communities is to issue threats of silence and if, in fact, it can be so demonstrated, why do we have to go further and prove that it was formed to engage in robberies or murders?" he queried.

He noted that even if such individuals were "not really engaged in any serious offence but are issuing threats, or are controlling the corner in a community", there was no reason to have to prove that they were involved in other unsavoury activities.

"I am saying b (ii) should capture them fully once it can be shown that they are issuing threats and creating fear and intimidation. It should stand on its own. A criminal organisation could be that gang that is going around stealing vehicles and not issuing any threats (they are to be included), but I also want the area don and his cohorts who are trying to control everybody in their community. You wouldn't want to also have to prove that they are doing other serious criminal offences (before you can get a conviction). Just the creation of fear and intimidation in the community, once it can be proven, they fall within the scope of the Act," he contended further.

Added Chuck: "I just want us to consider seriously whether we are not making it almost impossible to really deal with this problem because most of the gangs in the communities are engaged only in b (ii). It should stand on its own, that is how criminal gangs operate in communities.

"If it remains as it is with an "and" I will agree with the (previous) presenters that we don't need this Bill. This Act is supposed to really disrupt criminal gangs, especially those who are operating with violent tendencies in our communities, and unless b (ii) stands on its own, with due respect, we are not going to be able to deal with it thoroughly," he added.

Committee chairman, National Security Minister Peter Bunting, said the clause might have been drafted that way as a "concession" to a point made by director of the Jamaica Civil Society Coalition (JCSC) Horace Levy in an earlier consultation.

In a joint presentation with rights group Jamaicans For Justice, the JCSC argued that the Bill was too wide, leaving openings for police abuse and could criminalise corner crews which, they said, are not nearly as dangerous as established gangs.

Deputy Chief Parliamentary Counsel Erica Boswell Munroe, however, had a concern.

"What member Chuck is saying seems to me creditable, but I think it would affect the aim of what this (Bill) is trying to do," she stated.

Said Bunting: "It's ultimately going to be a policy decision, but I think certainly we should include that view in the report so that Parliament can consider it that there was substantial sentiment in the committee that this warrants standing on its own."

Also in support of the point raised by Chuck were Government committee members Senator Sophia Fraser-Binns and Damion Crawford.

"Fear-mongering comes from having the ability to implement the threat," said Crawford. "If a man does not have access to anything to harm me he cannot effectively threaten. Therefore, once a man threatens, he has the ability to implement that threat which comes mostly from other illegal guns and other activities. So if b (ii) doesn't stand on its own we may never get a charge, or if we do get a charge we may never get a conviction because those who were incapacitated by fear would never help the process."

Said Bunting: "Rather than us trying to draft an alternative here, let us ask the technical group to look at an alternative that would achieve what the consensus seems to be that this, on its own, is serious and needs to be captured. We are not going to agree to an amendment now because we want to see what they come back with as a possibility."




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