The Office of the Director of Public Prosecutions (ODPP) has recommended that provisions in the Cybercrimes Act be broadened to invest powers in clerks of the court to make application to seize computer data used in the commission of crimes.

In the current Act, which is being overhauled by a joint select committee of Parliament, that authority under Section 20 of the legislation is solely vested in the ODPP.

Outlining the ODPP’s reasons for the recommendation, head of its Digital and Cybercrimes Unit, Andrea Martin Swaby, explained that the application for forfeiture is a prosecutorial function, which means any prosecutorial agency carrying out that function through a fiat, in association with the DPP or clerk of the court, can make an application before the parish court for the post-conviction forfeiture.

“That is why we believe that the use of DPP in section is not helpful. We only need to have that power in those special circumstances where there is no conviction. Where there is no conviction you have the constitutional rights of individuals, or the possessor of the material, so it really should be that the primary prosecutorial agency in the island is given the authority to handle those specified matters and to weigh all the issues that are applicable. It is easy where there is a conviction because automatically the material itself should be the subject of a forfeiture application, which the judge can consider whether this item should be forfeited to the Crown, but if there is none, then the DPP’s office really should participate in such an application,” she added.

The section sets out a regime where the courts shall, on the application of the DPP, order the forfeiture of the computer material, which was used in the commission of the offence. Martin Swaby pointed out that where the section specifies the DPP, an anomaly will be created where offences are tried in the parish court. “The effect of this is that if the prosecution is done in the parish court, and there is a conviction then our office will have to intervene for the purposes of a post-conviction forfeiture application, which practically it may not be the best use of resources,” Martin Swaby said.

The prosecutor noted other pieces of legislation such as the Dangerous Drugs Act and the Quarries Act, which have synonymous provisions, where the prosecution is invested with the power to apply for the forfeiture of the instrumentality of crime, which extends the power to apply for forfeiture.

“In those pieces of legislation it says that the court on the application of prosecution doesn’t say director of public prosecution, and I think perhaps the reason for that is in those other pieces of legislation as obtains under the Cybercrimes Act, most of those offences are also prosecuted in the parish court. So by leaving it broad and using the term prosecution, the clerk of the court is empowered to apply for the forfeiture,” she explained. “In examining all three statutes — it’s the same provision — the question [is], why is it only the DPP can make an application to forfeit computer material that was seized during an investigation? I don’t see what the justification for it would be, so we have consulted and we are of the view that the terminology of ‘prosecution’ should be inserted as opposed to the use of the terminology ‘director of public prosecutions’.”

DPP Paula Llewellyn, meanwhile, indicated that her office would draft a protocol for the Jamaica Constabulary Force to give assistance, through the chief justice, to the clerks of the court to provide guidance in the necessary areas.

In the meantime, she told the committee that she is willing to support an amendment to the Cybercrimes Act to empower judges to hear an application from prosecutors to make it an offence for the material under investigation to be transmitted by the accused.