APPEALING not just as a legislator, but also from his own experience with past convictions, Opposition Spokesperson on Youth and Human Rights Isat Buchanan has urged the Joint Select Committee reviewing the Child Diversion Act to make simple possession of a firearm or ammunition an offence that can be referred to child diversion, rather than leaving it solely to a judge’s discretion under Section 37 of the Act.

He argued that children caught in possession should be given a chance to avoid a lifelong criminal record.

But the proposal drew resistance from committee chairman Delroy Chuck and other members, who warned that making simple firearm possession a scheduled diversion offence could remove judicial discretion and allow criminals to exploit children as gun carriers, knowing they could be sent to diversion if caught.

The emotional exchange unfolded on Wednesday as the committee continued reviewing the matrices and submissions on the Child Diversion Act, 2018.

During the sitting, Buchanan repeatedly pressed his colleagues to consider what may have happened before a firearm ended up in a child’s hands.

“We are well aware that there are adults who are using children, even children below the age of criminal responsibility, to lock firearms, let’s call it that, and to carry. So if we are going to be in the business of being able to pull these children and divert them from this deviant behaviour, possession simpliciter has to be a space that we can divert them and put them in programmes. If we leave it to the discretion under section 37 in that contemplation, I’m afraid that there will be children who won’t be able to benefit,” he said.

Possession simpliciter, in this debate, means the simple fact of being found in possession of a firearm or ammunition, without necessarily alleging that the child used the weapon in another offence.

Buchanan wants that form of possession added to the First Schedule of the Child Diversion Act, which sets out offences that qualify as diversion offences. His argument is not that children should automatically be diverted in every firearm case. Rather, he wants firearm or ammunition possession placed among the offences that can be dealt with through the diversion framework, instead of relying solely on the separate discretion currently available to judges.

That distinction became the heart of the disagreement.

Section 37(2)of the Act already gives a court a route to diversion even when an offence is not listed in the First Schedule, providing that a court may make a child diversion referral order for any other offence where it is in the interest of justice.

This formed the basis of Chuck’s opposition to Buchanan’s plea.

He argued that this existing discretion is important because it allows the court to examine why the child had the gun, how the child came into possession of it, and whether the child was being used by someone else before deciding whether diversion is appropriate.

“The child may well, deliberately want to control a gun. A 16-year-old may well, deliberately want to control a gun, and having been found with the gun, he says, ‘put me on child diversion’, or automatically it has to go to child diversion, and my answer is that may not be an appropriate case for child diversion,” he argued.

He also warned that criminals could exploit diversion by using children as gun carriers, knowing they might avoid conviction.

However, Buchanan maintained that the possibility of coercion is precisely why simple possession should be included. His argument became increasingly personal as the discussion continued.

“At 47, chairman, I am still dealing with the past of convictions that have nothing to do with firearms. If you want this version of a Jamaican child to be better than me, if at all, if there’s any good in me, and you see, chairman, I’ve interfaced with you many times…all I’m asking is to empower the Jamaica Constabulary Force to drape up a boy, take the gun from him and let the don realise that you can’t buy enough guns that we can’t confiscate,” he said.

Buchanan was himself convicted in Jamaica in 1997, when he was 17, of possession of cocaine, dealing in cocaine and taking steps to export cocaine. He served 21 days in prison and paid a fine. In 2000, he was convicted in the United States of conspiracy to import cocaine and was sentenced to 10 years in prison, serving about eight and a half years. The Jamaican conviction was later expunged from his police record in 2014. The General Legal Council subsequently approved his application to practise law after considering his convictions, rehabilitation and character references.

Using his circumstance as an example, Buchanan reiterated that the purpose of child diversion was to give children another chance, not simply to punish them for behaviour that may have been shaped by their environment.

He eventually yielded the floor, visibly frustrated by the resistance to his proposal.

“If the Parliament doesn’t want to, or this committee doesn’t want to agree with me and we don’t want to put it to a vote and we don’t want to be brave enough to protect our children.. I will yield, chairman, but I’m hurt by this. I must tell you my soul is hurting,” he said.

Buchanan’s proposal did not face opposition only from Government members.

Opposition Senator Donna Scott Mottley said she had long had concerns about aspects of the Firearms Act but was uncomfortable supporting the change without evidence showing how children charged with firearm possession are currently being treated in the courts.

“I do agree that there should be some guidance to the judiciary. Whether or not it should be a part of the schedule is what concerns me. Because our discussion does disclose that the judges have discretion. And I wonder if it is not more that the judges should be aware of the policy of the administration as it pertains to children rather than for us to have it in the schedule,” she said.

She also warned that the proposal required more analysis, particularly because of the possibility that it could be abused by people with influence.

State minister in the ministry of National Security and Peace Juliet Cuthbert Flynn was more firmly opposed to including firearm possession in the Child Diversion Act’s First Schedule.

“We do have a gun problem in Jamaica, and so with this proliferation of guns, and, you know, just our culture, I think a standard has to be set. And these children, they might be young, but I think they all know right from wrong,” she said.

By the end of the exchange, the committee had not reached a consensus on Buchanan’s proposal.

Chuck suggested that the committee could record itself as divided rather than take a formal vote, while maintaining that the existing Section 37 mechanism could still protect children in appropriate firearm cases.