Although the current approach to law is for lawyers to speak in modern, plain language, there are times when resort to Latin is necessary.

The response to the lawyers’ points raised surrounding Jamaica’s Firearms (Prohibition, Restriction and Regulation) Act, 2022 (“Firearms Act”) is encapsulated by the phrase “reductio ad absurdum” which refers to situations in which a point is taken that reduces it to an absurdity that was not the original point being made.

The maxim is best illustrated this way based on the present situation: Attorneys have pointed out that the Firearms Act should be refined to reserve mandatory minimum sentences for individuals who have been found guilty of using or attempting to use imitation or real firearms to commit a crime such as murder, rape and robbery.

We are also saying that the current law results in a colossal injustice to children who are at risk of the mandatory minimum sentence for nothing more than having an “imitation” firearm.

The response from many who really should know better has been to say that lawyers want the law to be “soft” on gun crime.

Nothing could be farther from the truth.

That response reduces the real message of the Jamaican Bar Association (JAMBAR), the Advocates Association of Jamaica (AAJ), and the other Bar associations across the island to an absurdity that none of us is advancing.

No reasonable person or lawyer disputes the need for strong measures to address the proliferation and misuse of real or imitation firearms or ammunition.

The real concern for lawyers and many civil society groups is that the legislative framework is not sufficiently precise, proportionate, and workable to achieve a reduction in gun crimes while preserving the fundamental principles upon which our criminal justice system operates.

We do not want to throw out the baby with the bathwater.

To that end, allow me to make it clear our real concerns with the Firearms Act:

MANDATORY MINIMUM SENTENCES

The operation of the mandatory minimum sentence is one of our principal concerns because it does not account for the different circumstances under which an offence attracting that sentence may be committed or by whom.

We must recognise that the same offence can be committed in very different circumstances and with very different degrees of blame.

It is a fundamental principle of our justice system that a judge is meant to weigh the evidence and the circumstances of each case.

That is why, for example, different offences carry different penalties.

When the law takes away the Court’s ability to tell exceptional cases from ordinary ones, the sentence will probably outweigh the crime in the majority of cases.

This matters most for imitation firearms.

There is at least one active case before the courts in which a minor is facing the threat of a mandatory minimum sentence for, according to the ballistic testing carried out by the Government, an “imitation toy gun used as a game controller for shooting targets in game”.

It cannot shoot a projectile.

The law must tell the difference between a real firearm and an imitation one, especially where the imitation was never used to commit another offence.

The threat of the mandatory minimum of 15 years punishment should match what the person actually did.

Children need particular attention, especially where the object is an imitation firearm.

A child found with a real firearm is a serious public-safety concern, but it is hardly the case that children are the ones procuring these guns from suppliers or manufacturers.

The reality is that children are told to carry them many times without knowing what they are carrying.

But what about a child found with an imitation firearm? Under the current law, an object that cannot fire a bullet can still count as an imitation firearm.

Depending on the object and the circumstances, having it may carry the same severe penalties as having a prohibited weapon.

Parents and the public are bound to ask: Should a child found with an object that looks like a firearm, but cannot fire a shot, necessarily face the same consequences as a child who knowingly had a working firearm? The answer should not turn on how the object looks.

The circumstances must matter.

Was the child using it as a toy? Was an adult directing or influencing the child? Was the object being used to threaten or intimidate someone? Did the child understand what the object was? Was the child involved in another criminal offence? These are very different situations.

This is where child diversion matters most.

Diversion is not about excusing unlawful behaviour or letting children have weapons.

It is about recognising that children need a different response from adults and that, in the right cases, early intervention, counselling, supervision, education, and rehabilitation may protect society better in the long run than putting a child through the adult criminal justice system.

The concern is even greater where the child has not used the imitation firearm to commit another offence and there is no evidence of an intention to cause harm.

The justice system must be flexible enough to tell that child apart from one who deliberately used an imitation firearm to threaten, intimidate, or carry out a serious crime.

The same goes for a child being used by adults.

A child who is told or forced to carry something that looks like a firearm may be both a participant and a victim of exploitation.

The law must allow the circumstances of the child’s possession to be properly looked into.

PLEA BARGAINING AND CASE BACKLOGS

Plea bargaining deserves a serious look from both the perspective of hindsight and foresight.

For years the public has been complaining that the pace of justice in the criminal courts was too slow, and the public was right.

The Government of Jamaica, the judiciary, the Office of the Director of Public Prosecutions, and the members of the private Bar have all put in the work and cooperated to secure hardearned improvements to the criminal courts.

Guilty clients routinely plead guilty and forego the delays of a trial which will yield an inevitable result, and they get some benefit from not contesting the charges.

For the justice system, that means more resources are available to deal with another matter, which allows for more matters to be dealt with.

However, there is a dilemma that the mandatory minimum causes.

If a person faces a heavy mandatory minimum, and pleading guilty has no effect on your sentencing, accused individuals will not plead guilty.

This does not only affect the accused.

It affects the victims, court time, prosecution resources, backlogs, and how efficiently justice is administered.

With Jamaica trying to make its criminal justice system more efficient, we should look carefully at how mandatory sentencing affects plea negotiations.

There are other technical concerns with the legislation, such as the treatment of parts and components or assorted parts, which have been included in the submission made to the minister of justice and constitutional affairs and fellow attorney, Delroy Chuck, KC.

Correlation is not causation.

The reduction in firearm-related crime is absolutely welcomed by all of us, especially the JAMBAR.

But a drop in crime figures does not, by itself, prove that a particular law caused it.

Many factors affect crime trends.

We should judge the Firearms Act on reliable evidence, including its effect on prosecutions, convictions, guilty pleas, sentences, and the wider administration of justice.

In fact, the conviction rate of about 20 per cent for gun offences, based on the recently publicised statistics from the Supreme Court, does not support the conclusion that the legislation is the main driver of the crime reduction.

The experience since 2022 gives Parliament and other stakeholders a chance to look at what is working, what is not, and what unintended consequences may have emerged.

The debate should move past the idea that those calling for reform want to weaken the fight against gun crime.

Sensible reform can keep tough penalties for serious firearm offences while allowing for exceptional cases, bringing back a real reason to plead guilty early, clearing up how imitation firearms and firearm components are treated, dealing properly with licensed firearm holders, and making room for the circumstances of children.

The goal is to make sure the law is precise and proportionate enough to stand up to scrutiny in the individual cases that will inevitably come before our courts.

Tenneshia T Watkins is president of the Jamaican Bar Association. Send comments to the Jamaica Observer or jambarassoc@gmail.com.