Open letter to Prime Minister Golding

July 20, 2008

Prime Minister:
The Hon. Orette Bruce Golding, MP
Jamaica House
1 Devon Road
Kingston 10

Dear Prime Minister:

Apprehension with respect to proposed crime initiatives

I left your July 18 meeting with a sense of unease after you shared your government’s proposed crime initiatives with a group of human rights defenders. It seemed to me that once again my country’s leadership was intent on adopting or re-instituting draconian measures that have made Jamaica no safer (and in reality far less safe) over the past thirty years. I was particularly concerned after our meeting because:

1. These proposed initiatives seem reactive, driven by the current level of crime that you justifiably described as a “crisis”. You correctly stated that more than 900 murders have been committed since the start of this year. However, our country’s murder rate reached crisis proportions more than thirty years ago. During this time, report after report has recommended proactive and preventive measures, to little avail.
2. These proposed initiatives seem based on questionable premises. You stated that the Jamaica Constabulary Force (JCF) was established for peacekeeping rather than crime fighting. On the contrary, history shows that the model for the JCF was the quasi-military force set up by the British to quell Irish uprisings. The JCF was similarly set up, in the aftermath of the 1865 Morant Bay Rebellion, to quell unrest among those seeking equal rights in a post-slavery society.
3. A further premise – that the JCF does not currently have powers adequate for strong, rigorous response to crime – does not seem consistent with the experiences of attorneys practicing in criminal courts. Such powers already exist in law, but have generally been applied unevenly, inconsistently, and in such a manner as breed mistrust between police and citizen. What seems needed is appropriate application of existing laws pertaining to police powers.
4. You acknowledged that abuse and corruption exist in the JCF. However, the crime plans seemed to me to come up short on checks and balances to protect civil liberties and compensate citizens for abuses of their rights.
5. The proposed initiatives seemed to me to offer the illusion that a sacrifice of civil liberties would result in greater security if the authorities:

1. Detain without charge. Legislation is to be introduced whereby the police can detain individuals for up to 28 days without charge, authorised by police at the level of Superintendent or above and in relation to specific activity. Defence attorneys can attest to an ongoing police practice of detaining persons for periods that can exceed 56 days; courts have been sympathetic to police requests to extend detentions to allow time to investigate or hold identification parades. However, the current security crisis has arisen in spite of/because of a practice that alienates the law-abiding who may lose jobs, reputations, and faith in the security system when their civil liberties are breached without cause. On the other hand, folk heroes are created when possible law-breakers have to be released because the police have not produced evidence to support charges let alone convictions. Making lawful what has been unlawful seems like a shortcut that would not replace the quality of investigation needed to bring about successful prosecutions.
2. Amend the Terrorism Prevention Act to specify types of criminal activity subject to the provisions of the Act. Crime is recognised as concrete and specific acts (such as theft, robbery, murder). On the other hand, terrorism is a politically- and emotionally-charged abstract for which the United Nations Member States still have no agreed-upon definition. The authorities’ energies seem better spent on deterring crime (with the systematic arrest and prosecution of criminals) rather than seeking new labels for criminality.
3. Refuse bail for gun-related offences for the first 90 days, with provision for the prosecution to appeal against granting bail. The proposal includes presumption against bail for gun trafficking, human trafficking; and sexual crimes. Such individuals would have to show cause why bail should be granted. Defence attorneys report that judges generally exercise their discretion in the direction of not allowing bail in the types of cases mentioned in the proposal. It is therefore difficult to understand why judges would need to lose the power to determine bail based on the specifics of the cases.
4. Require mandatory sentencing for specified offences. Where persons are convicted of gun offences, they would not be eligible for parole before ten years. In the absence of specific data showing that judges have consistently given light sentences for gun offences, this piece of legislation would have the effect of yet again limiting a judge’s discretion. The strength (or weakness) of police investigation, rather than the merits of the particular case, would now determine sentencing.
5. Provide for majority verdict in non-capital murder. The law would be amended to allow for conviction by a majority of not less than nine. No data was produced to show the incidence and impact of juror disagreement on conviction or acquittal. Further, there is no reason to believe that majority verdicts would overcome the defects of the present justice system or compensate for inadequate investigation.
6. Enable lawful interception of/access to communication. Legislation would permit the security forces to intercept communication for seven days before seeking a judge’s approval. Security forces are also to access information from other agencies. Unless stringent checks and balances are in place, such a system could easily be abused and rights to privacy infringed. It is a matter of concern that judge’s approval to infringe privacy rights would be sought after the fact.
7. Make possession of driver’s licence mandatory. A motorist would have no grace period in which to produce a driver’s licence. The constable would have the discretion to make this a ticketable offence, and station bail would be considered. This proposal does not seem to consider a climate of corruption in which forged licences and bribery for traffic offences are not uncommon. Further, the nexus between crime and possession of a driver’s licence is not clear enough to merit the increased pressure on security and justice systems if this new category of offenders were created.
8. Establish a DNA database. DNA evidence is admittedly important in securing convictions or proving innocence. However, there are dangers as well in creating a DNA database: abuse, misuse, retention, fallibility, security, and lack of safeguards.
9. Provide for witness evidence by remote video. This system could indeed provide essential protection for witnesses. However, countries claiming to be democratic follow principles by which the accused know who are his accusers, and defence attorneys have enough information about accusers to cross-examine them. In totalitarian societies, courts conduct trials where unnamed, unknown, and perhaps non-existent witnesses give unchallengeable testimony. Jamaica already has experience of police providing courts with statements from non-existent witnesses. Such legislation would therefore need to be carefully thought out so as not to breach principles of democracy.
10. End requirement for the prosecution to adduce ballistics evidence at gun trials. The reason for this proposal was the backlog in the ballistics laboratory that has led to delay in trials. The onus would be on defendants or their defence attorneys to challenge whether or not the implement can be described/used as a gun. Such legislation would be unnecessary if the ballistics laboratory were equipped with the personnel, training, and equipment to produce timely results. Under Jamaica’s constitution, defendants are presumed innocent unless and until the prosecution proves otherwise beyond reasonable doubt (or there is a guilty plea). This proposal therefore undermines the presumption of innocence to the extent that the prosecution would be exempt from proving that an implement is a gun, unless challenged by the defence.
11. Death penalty conscience vote. A resolution would be taken to Parliament to allow parliamentarians to vote on whether to support or remove the death penalty. This vote could take place as soon as early September. Your government has plainly stated its wish to resume executions as an anti-crime measure. You may wish to consider the following: (a) there are perhaps no more than a dozen persons on death row now, compared to over 300 a decade and a half ago; (b) the majority of convictions for murder fall within the non-capital category (which does not attract the death penalty, unless the defendant is convicted of multiple non-capital murders).
12. Establish oversight mechanisms and sunset clause. Oversight mechanisms would be established, and laws would automatically lapse after three years unless extended by Parliament. You did not suggest any reason for bypassing the constitutional requirement that judges oversee the protection of citizens’ rights. Further, having a sunset clause provides no assurance that causes of crime would be addressed, intelligence would be converted into evidence, and offenders would be brought to justice quickly and competently. The danger exists that legislation would take root and be renewed if the approach to crime continues to be reactive rather than proactive. For example the Suppression of Crime Act was renewed annually for about 20 years.

The proposals in this crime initiative relate more to suspension of rights than protection of rights, and more to punishment than prevention. They also tend more toward a totalitarian than a democratic pattern of governance. If indeed these are intended to be emergency measures, the sunset clause would allow for a three-year undeclared state of emergency. My major concern is the extent to which whittling away of rights (without clear statements of checks and balances) could endanger democratic principles.

We have had numerous reports with recommendations for tackling crime, the most recent being the 2006 report – Road Map to a Safe and Secure Jamaica - commissioned by your party in opposition. However, these reports have largely suffered from inattention and non-implementation, or else failure to follow through recommendations in a wholistic and complete fashion.

The 2006 Road Map to a Safe and Secure Jamaica pointed out that Jamaica faced “a deep crisis of public safety…. manifested in the extraordinarily high murder rate and the high rate of violent crimes”. Our crime situation was described as requiring “a sense of urgency, focus and seriousness of purpose.” It recognised the need for long-term efforts, but focused on short-term action such as:

A. Taking steps to dismantle garrisons by:

· Ending contracts to dons or their associates;

· Establishing appropriately staffed and equipped police-military posts in garrisons;

· Disarming garrisons by focusing security resources on specific areas at a time;

· Enforcing payment of utilities in garrisons;

· Stripping dons of criminally acquired wealth; and

· Reducing the role of criminal networks in the governance of these communities by requiring state agencies to treat all customers as worthy of prompt and respectful service.

B. Upgrading criminal intelligence and investigative services by:

· Providing adequate training, equipment, and resources (sometimes as basic as gas, a vehicle, and a working telephone) to support investigative and forensic analysis; and

· Setting standards of police proficiency in converting intelligence to evidence.

C. Improving the criminal justice system by:

· Upgrading technology for preparation of transcripts;

· Taking steps to reduce backlog in civil and criminal courts; and

· Building public confidence in the justice system by paying attention to client satisfaction (such as relate to access, speed, service quality)

Overall, our current priorities need to be improving investigative capacity, forensic capacity, prosecutorial capacity, protection of witnesses, and the ability to convert intelligence to evidence. We need to base decisions on scientific study rather than emotional responses, as ill-considered decisions could well inflame an already dire security situation.

The proposed draconian laws would affect the entire population for at least three years, without providing any assurance that causes of crime would be addressed this time around. I strongly recommend an approach that is more preventive than retributive, tackling causes of crime with a view to winning the confidence and cooperation of the law-abiding. I therefore suggest a review of your crime initiatives, particularly in the light of the report of the 2006 Special Task Force on Crime of which you were the convenor and the present Minister of National Security was the chairman.

Yours truly,

Yvonne McCalla Sobers

Chairman

Families Against State Terrorism (FAST)

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