We now have a state of affairs where Lisa Hanna’s life, a Member of Parliament, has been threatened by several purported fans of incarcerated dancehall artiste Vybz Kartel over statements she made in relation to his music being played on public radio. (For the purpose of this article I make a distinction between music recorded before his incarceration and music recorded after his incarceration.) Is the Government turning a blind eye to criminal conduct? By turning a blind eye, is it undermining one of the main purposes of punishment, deterrence?

The Government of the day must uphold the rule of law and has an opportunity to demonstrate leadership and put to rest what has become a matter of public debate and concern. Coupled with this, good governance demands transparency and accountability. For us to have an informed discussion on this issue the Government, namely the commissioner of corrections or the minister of national security, needs to answer the following questions:

• What is the policy regarding recording music in the prison where Vybz Kartel is being held?

• If the recording of music is permitted, has Vybz Kartel been given the appropriate permission to record songs?

• Is the prison providing the equipment to record the music?

• If not, has it authorised the equipment used to record the songs?

• If the recording of music is permitted in the prison where he is being held, and he has received permission to do so, and the recording has been done on authorised devices so be it, that should be the end of the story, as I can see no reason his songs recorded in prison should be banned from the airwaves — assuming they are fit for airplay, of course.

If it is, however, there is either no established policy to allow for the recording of music, and/or Vybz Kartel has not received any permission to so do, serious legal issues arise that cannot be overlooked.

If there was no permission, it would mean that the songs recorded by Vybz Kartel would be the product of criminal conduct. When songs are played on the airwaves they generate direct income for the creators and recorders of the songs. Every time a radio station plays a Vybz Kartel song they are required to pay the collecting societies money for the use of his copyright known as royalties. The collecting society then pays these monies collected to the creators and recorders of the music.

The music also generates indirect income for the radio stations that play the music, as radio stations play popular music to attract and retain listenership. The larger the listenership is the larger advertising dollar the radio station can command in the marketplace.

It would mean, therefore, that the radio station and all the individuals associated with the creation and the production of the music will be benefiting from criminal conduct when they receive either advertising dollars or royalties. In other words, they would be receiving and benefiting from the proceeds of crime either directly or indirectly.

The Proceeds of Crime Act states a person commits an offence if that person engages in a transaction that involves criminal property, or if that person uses or has possession of criminal property and knows that the property is criminal property. It further states that property is criminal property if it constitutes a person’s benefit from criminal conduct, whether directly or indirectly.

Are the radio stations and the copyright owners of songs that have been recorded after Vybz Kartel’s incarceration involved in money laundering? Is the commissioner of corrections exposed to a charge of misconduct in public office by not preventing this criminal conduct for over three years?

Before those questions can be properly asked, a determination has to be made whether these songs were recorded before or after Vybz Kartel’s incarceration. With very little effort when the music was recorded can easily be determined.

Vybz Kartel’s recordings, if played on radio, should properly be registered with Jamaica Music Society (JAMMS) and Jamaica Association of Composers, Authors and Publishers (JACAP). The producers of the songs, before releasing the recordings to the radio station, would have had to register the recordings with JACAP and JAMMS outlining all the details about the ownership and creation of the recording. JAMMS provides International Standard Recording Code details for producers for each recording that capture the details of the recording, including the date of the recording.

Once played on the radio station, the radio station must log all the songs they play. The songs that are logged form a playlist, and this playlist is submitted to the local collecting agencies — JAMMS and JACAP — as such playlists can be obtained from the radio station or collecting society.

So, if it is the Government wanted to know exactly what songs were played on the airwaves, when they were played and, more importantly, when the songs were recorded, they simply have to contact the local collecting agencies.

It goes without saying that if, indeed, the Vybz Kartel music has been recording in prison without the relevant permission, his acts constitute criminal conduct. If that is indeed the situation the radio stations, by playing Kartel’s music on the radio, specifically the product of the criminal conduct, could be exposed to a charge of aiding and abetting Vybz Kartel in money laundering and committing the act of money laundering themselves. Fortunately for the radio stations, because there has been no clear public pronouncement by the Government on whether Vybz Kartel has been allowed to record, they cannot be said to have knowingly engaged in money laundering, and accordingly could not be found guilty of such an offence.

These are, I submit, very serious issues that must be investigated that impact directly on the rule of law and crime. Once investigated the findings of the investigation should be shared with the public, given the very public nature of the matter.

Chukwuemeka Cameron is a practising attorney-at-law. Send comments to the Observer or chukwuemeka.cameron@gmail.com.