JCF fails to get support for new provisions in anti-gang law

BY ALPHEA SAUNDERS
Senior staff reporter
saundersa@jamaicaobserver.com

Thursday, June 27, 2019

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THE Jamaica Constabulary Force (JCF) yesterday lost its bid at a parliamentary joint select committee to have special provisions included in the anti-gang legislation for the declaration of criminal gangs, in order to enable the police to gather financial information from banks to shore up their case against these networks.

The committee is reviewing the Criminal Justice (Suppression of criminal organisations) Act of 2014, commonly called anti-gang legislation.

The necessity of the proposal, which has been discussed at length over several meetings of the committee, was yesterday again questioned by Attorney General Marlene Malahoo Forte and Opposition Senator K D Knight.

Malahoo Forte pointed out that if the police have information it should move to charge, noting that every offence under the anti-gang legislation requires proof of the existence of a criminal organisation.

“While it is understandable that you want tools to monitor persons, no one can act arbitrarily and that's why fundamentally there must be reasonable cause for suspicion, and it is on that basis you proceed,” Malahoo Forte stated. She further said that at the heart of the matter is a difficulty the police face in investigating suspects as part of a group, and the adequacy of the tools that are available to them at the investigative stage.

She said while the recommendation could not be accepted as is, the committee already recognised the need to examine the current gaps in those investigative tools and consider a suite of measures, including surveillance.

Senator Knight, meanwhile, said that unlike in anti-terrorism prevention legislation, which the proposed provision is fashioned from, where terrorist organisations are well known and carry out acts in the name of these organisations, local gangs operate differently.

JCF legal officer Alethia Whyte explained that while the purpose of the declaration provision was to mandate financial institutions to make certain types of reports to the police, similar to the reporting regime under the Proceeds of Crime Act (POCA), the provisions under POCA could not be administered in situations where the police are dealing with organised criminal gangs.

“... This is a tool that can be used before someone is charged where you have reasonable ground to believe and the court is satisfied that a person is a member of a criminal organisation and, once that declaration is made, financial institutions that have any property for that person would be mandated to make reports on the property and any transactions that are related to the property,” she explained.

But the attorney general questioned whether existing legal framework prevented the police from requesting these records, if they have reasonable cause to suspect a person of being involved in criminal activity.

Whyte, in response, said while POCA provides for disclosure orders which allow the police to ask banks to provide documents on particular accounts related to certain investigations, this provision did not speak to criminal organisations. “It is different standards. Rather than saying that a person is a part of a criminal organisation, that order wouldn't require the bank to continue to report as to whether they have any property for the organistion,” she explained, noting that rather it is the past banking history of the person that would be provided.

Director of legal reform in the Ministry of Justice, Maurice Bailey, explained that the director public prosecutions, like her counterpart in other jurisdictions, has the power to declare a group a terrorist entity because of the fact that such organisations tend to operate under the guise of legitimate businesses.

“What we have in Jamaica are activities that are criminal from the get-go; these are not entities that have a sign somewhere, advertising their presence, inviting members or claiming to be legitimate. These are gangs who are engaged in illegal and criminal activities, so to try to use this kind of a regime to impose this regime would not really solve any problem at all, and POCA already exists for doing exactly what the police is seeking to do,” Bailey said.

The 12-member committee was appointed last October to review the legislation in response to concerns about its provisions, in particular the police's powers to enter, search and seize.


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