Anti-gang law flaw
OUR PARLIAMENTARIANS are currently reviewing the AntiGang (Suppression of Criminal Organisations) Act, attempting presumably to improve it. In the four years since it was passed, only two convictions have been secured by its use. As that could be considered a fair trial, we must not only ask what’s wrong with it but whether it can be fixed at all. Is it fundamentally flawed? Flawed even to being used for the abuse of human rights?
Modelled off similar efforts in the United States, the objective of this act is to criminalise the gang simply as a gang, along with its membership. It is to make the gang itself and membership itself criminal actions, distinct from the gang’s criminal activities of murder, robbery, extortion or whatever. Thus this act criminalises gang formation, recruitment and membership or association relationships. These factors would then attract additional penalties when successfully prosecuted in court.
However, before a group and individuals’ relations with it can be designated as criminal, it/they must be shown to be responsible for specified criminal acts to be, that is, a criminal gang. This would have to be a court-established pre-requirement. Neither hearsay nor the regular practice of police reports attributing certain crimes to a popularly named group would suffice.
POLICE ALLEGATIONS
Given this reality, it is clear that attaching the crime of being a gang to the other crimes of a gang is not the easy road that some may have anticipated. Recruiting to a gang can be observed in some instances by outsiders but, even then, getting witnesses is notoriously hard. And what outside observer can factually determine whether an individual carried out a crime on his own initiative (and for his own benefit), as is sometimes the case, or was gangdirected or -sanctioned?
What is actually happening, I am reliably told, is that sometimes young men are being detained on the perception simply of a police officer, no proof offered, that they are members of a gang. Add to that the denial of bail to alleged gang members that the chief justice is reportedly declaring and you get the picture of what this anti-gang legislation is really ‘achieving’. Sadly, it is too often solely on the basis of
‘For the pursuit of criminal organisations, the task must be investigative policing, which does not appear in the act and for which the Jamaica Constabulary Force has not been conspicuous. This seeks, first of all, to connect individual suspects to a criminal activity. That is the primary step.’
police allegations that many judges, as former prosecution attorneys, deny bail.
INVESTIGATIVE POLICING
For the pursuit of criminal organisations, the task must be investigative policing, which does not appear in the act and for which the Jamaica Constabulary Force (JCF) has not been conspicuous. This seeks, first of all, to connect individual suspects to a criminal activity. That is the primary step.
It is the involvement of more than one in a crime, along with elements of ‘abetting’ and ‘conspiring’ that are already in criminal law, which introduces the second step of connecting the individual to a criminal gang, whereas the act makes it look like the primary anti-gang action.
The fundamental flaw in the act is then that it adds little to the corpus of law. This is why it has not assisted in crime convictions, only diverted attention from the real investigative task. In spite of that, it does appear from some recent JCF success in confronting and arresting scammers and gang leaders that investigation to deal with organised crime is more recognised and practised today than before.
On the other hand, the net-fishing detention and processing (up to October 9) of nearly 3,700 young males under the state of public emergency in St James – which Police Commissioner Anderson has so far failed to stop – would have been better spent on investigation. The result could only have substantially improved on the 76 who, according to the public defender, were the tiny fraction (of 3,700) actually charged for criminal offences.