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Senator cites need for specialised units, prosecutors to deal with cyber crimes

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

Tuesday, February 04, 2014    

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OPPOSITION Senator Alexander Williams says the low level of prosecutions under the 2010 Cybercrimes Act might be an indication that there is a need for specialised units and prosecutors to deal with the matter.

Speaking during Friday's debate in the Senate on the report of the Joint Select Committee of Parliament on the Cybercrimes Act, Williams said the emphasis on increasing the fines and penalties under the provision in hopes of deterring criminals, while applauded, might have been misplaced.

"One has to look at the recommended changes in view of the fact of the low prosecutions under that bit of legislation; I believe only four have taken place. The hope has been expressed that with these amendments we will see increased prosecutions under the legislation.

"To my mind ...I don't see that there has been a direct tackling of the problems that had been faced by investigators or prosecutors under the Cybercrimes Act when these amendments were made. So, it's left to be seen that the proposed amendments will have the effect that is being prayed for," Senator Williams said.

"Cybercrime is, to my mind, technical in nature and it may well mean that we will need specialised units and prosecutors to deal with Cybercrimes and that may well be the reason we have had low prosecutions under the Act," he said further.

According to Senator Williams, the legislature could be "missing where the rubber hits the road, where we pass or amend legislation of this type".

"It is nice to have our Cybercrimes Act on our books... it's another thing to make the appropriate provision for the proper investigation and prosecution of these crimes. It is a highly technical area and I believe what we need to do is focus on the causes why there has been low prosecutions under the Act and focus our attention there," he noted.

"It may well not be the fines, it may well not be the definitions, it may well be what sort of provision is made to those who investigate and prosecute and whether or not there is proper training," he pointed out.

Last June, deputy prosecutor in the Office of the Director of Public Prosecutions, Loxly Ricketts, told the committee that after three years in force with prosecutors yet to convict anyone it could be concluded that criminal minds have conspired to test the mettle of the system.

"My opinion is that because the Act is untested at present, they are not so keen to plead guilty, they want to see how far they can go and see if we can succeed," Ricketts told the committee then.

He said other reasons for the delay also involve administrative matters within the courts, particularly as they relate to securing representation for the accused persons and completing the forensic examinations for the various pieces of material.

According to the deputy prosecutor, if the fines and penalties under the Act are increased proportionate to what obtains under the Law Reform (Fraudulent Transactions) (Special Provisions) Act 2013, otherwise called the Lotto Scam Act, the courts would see more persons pleading guilty and opting for plea bargains as against now where they simply "take the chance of going through a trial".

Ricketts told the committee that his office was currently doing "the first full-blown trial under the legislation" and said "there are others set to start".

But on Friday Justice Minister Senator Mark Golding rebutted the points raised by Senator Williams.

"I note that the committee is recommending a stiffening of sentences and fines, and I think it is appropriate in this area that the potential penalties be heavy. I note what Senator Williams said about prosecutions under this legislation so far. Firstly the investigative capacity of the force in relation to the use of technology exists and is fairly robust and has been strengthened significantly in recent times," Senator Golding said.

"I do not think it would be beyond them to effectively investigate and prepare cases for prosecution and I believe as they become used to it and its application in the Courts, they will see increasingly the use of the legislation unless of course the deterrent effect is so satisfactory we have less persons attempting to use computers and technology in an abusive way," he added.

In the meantime, he said, given the fact that the pervasiveness of computers and information and communication technology has provided new avenues for criminal activity and by its nature lends itself to cross-border transnational type criminal activity, it is an area which has to be constantly kept

under review.

"I suspect we would need to have another review of this legislation again in a few years, because the pace at which technology is evolving may mean some of what is in there now may cease to be adequate in a fairly short space of time," he told

the Senate.

Information Senator Sandrea Falconer, who opened the debate on the report, said when the Act is amended Jamaica will have more robust provisions for combating, if not eliminating, cybercrimes. She said the presentation of the report to Cabinet to enable the necessary drafting instructions to be prepared for the Bill amending the Act to come to Parliament is anticipated.

The committee in February last year began hearing submissions for amendments to the provision and made a raft of recommendations for amendments to the Act, including increased penalties.

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