The Norman Manley Law School has urged the Joint Select Committee of Parliament considering the new anti-gang legislation to examine the provision in light of the rights and freedoms guaranteed by the Constitution before signing off on it.

“The necessity and vagueness of the proposed new offences need to be considered; a citizen must clearly understand exactly what action by him or her is prohibited. The sentences are too severe to allow for any ambiguity,” attorney-at-law and tutor at the law school Nancy Anderson told the meeting, which has been considering the Criminal Justice (Suppression of Criminal Organisations) Act 2013, otherwise called the anti-gang legislation.

The law school was particularly concerned about Clause 18 of the Bill which sets out the procedure for the prosecution of offences by a judge alone with no committal proceedings and not in open court. Anderson, in the submission from the law school, contended that this procedure was in violation of Section 16 of the Charter of Fundamental Rights and Freedoms which guarantees a citizen due process.

“This is a new Charter and it is foreseeable that there will be legal challenges to this legislation if enacted as currently set out,” she told the committee.

Parliament in 2011 passed the Charter of Fundamental Rights and Freedoms (Constitutional Amendment) Act, 2010, which significantly changes Chapter three of the Constitution.

According to Anderson, while international human rights law does not guarantee the right to trial by jury, the United Nations Human Rights Committee, which oversees the supervision of the International Covenant on Civil and Political Rights (ICCPR), has stated that while the ICCPR contains no provision asserting a right to a jury trial in criminal cases, if such a right is provided under the domestic law of the state party and is granted to some persons charged with crimes, it must be granted to others similarly situated on an equal basis. It said if distinctions are made they must be based on objective and reasonable grounds.

She went further to cite the example of the United Kingdom where the prosecution can apply for a non-jury trial in cases where they can show evidence of a real and present danger of jury tampering. The prosecution must also satisfy the court that there is a substantial likelihood that jury tampering would take place notwithstanding any reasonable steps such as police protection that might be taken.

Where in exceptional cases it can be clearly established on reasonable and objective grounds that the effective administration of justice cannot be delivered in an individual case a non-jury trial may be justified.

While noting that the risk of jury intimidation is one means by which the normal administration of justice can be undermined, the law school representative pointed out that in the absence of supporting data the IHRC has raised concerns about a blanket assumption about the actual or potential level of jury intimidation.

“In addition, to address the risk of jury intimidation there are numerous intermediate law reform measures that could be adopted, including having an anonymous jury, screening the jury from public view, protecting the jury during trial, or locating the jury in a different place from where the trial is being held with communication by video link,” it said. According to the IHRC, such intermediate measures should be considered and explored as a more proportionate and reasonable alternative to non-jury trials.

Said Anderson: “Similarly, Jamaica has a history of jury trials with the exception of the Gun Court which has been and continues to be criticised. Legislation similar to the United Kingdom law which requires evidence of the possibility of jury tampering or witness intimidation by the Director of Public Prosecutions and the opportunity for a defendant to challenge this is more humane and constitutional.” She added that alternative measures must also be considered.

Committee Chairman Peter Bunting, the security minister, said that in light of points raised by Anderson, the committee needed to be as precise as possible.