Sun | Aug 20, 2017

Letter of the Day | Resurrection of preventative detention

Published:Thursday | February 23, 2017 | 2:00 AM

THE EDITOR, Sir:

A few weeks ago, the Government announced a number of measures that will be encouraged and taken to address our country's high crime rate. Amongst these measures was the resurrection of the concept of preventative crime detention. That this measure is a resurrection (and, therefore, not anything new) comes from the existing laws that governs us.

The Charter of Fundamental Rights and Freedoms within our Constitution expressly provides for preventative crime detention. Section 14 (1) f (ii) under our Charter states that on reasonable grounds in accordance with fair procedures established by law, a person can be deprived of his liberty "where it is reasonably necessary to prevent his committing an offence".

Section 5 of the Domestic Violence Act of 1998, Section 15 of the Child Care and Protection Act 2005 and Section 15 of the Mental Health Act, 2001 have all embodies the concepts of preventative crime detention. For example, section 15 of the Child Care and Protection Act gives the power to a Constable to detain a person for whom he has reasonable grounds to believe that that person will abscond from lawful process.

The concept of preventative crime detention has not only been laid out plainly in various legislation enacted by our Parliament, but also in decided cases that have come before the courts. Indeed, as recently as February 15th, 2017 the Court of Appeal England and Wales through the case of R (on the application of Hicks and Another) v. Commissioner of Police for the Metropolis affirmed the principles of preventative detention. In that case, persons were detained by the police on the basis that there was reasonable belief that their detention was necessary for the prevention of an imminent breach of the peace. The persons were subsequently released without being charged. As a result, these persons brought an action against the police. The claim made was that by their detention, the police had violated their rights to liberty under Article 5 of the European Convention on Human Rights. The Court of Appeal ruled that the police were well justified in so acting and that in law this was permissible. In ruling as it did, the English Court of Appeal underscored the concept of preventative crime detention. The law therefore is clear on this subject and need not be complicated or confused by those casting doubts on its legitimacy.

 

REASONABLE GROUNDS

 

The focus must be on whether we can expect the police to base their detention of persons on reasonable grounds, as opposed to none at all, in the execution of preventative crime detention. This is the real issue at hand. Regrettably, empirical evidence suggests that some members of the Jamaica Constabulary Force very often fall short of having reasonable grounds for a person's detention, whether it be for the prevention of a crime or otherwise.

The simple solution, it would seem, is to devise a system which itself prevents the necessity of resorting to the concept of preventative crime detention. Against this background, reference can be made to what obtains in other neighbouring countries. In the Cayman Islands, for example, the police is given the power under their Bail Law of 2015 to impose reporting conditions upon a person while that person enjoys his/her freedom until the completion of an investigation.

It is time for us to take a similar approach in Jamaica by making the necessary amendments to our Bail Act. Then again, this solution may make too much sense and therefore not be attractive for implementation by those who continue to play politics or lip service with the reform of our Justice System.

Peter Champagnie

Attorney-at-Law

peter.champagnie@gmail.com