Fri | Sep 22, 2017

Legal Scoop | Lottery Scam Act - A law that can bite

Published:Sunday | August 14, 2016 | 8:00 AM
Shena Stubbs-Gibson
Police in Westmoreland with one of the motor vehicles seized during a predawn raid targeting lottery scammers.
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The recent judgment coming out of the Court of Appeal upholding the conviction of a Jamaican woman, who spent the greater portion of her life in the United States, for breaches of the Law Reform (Fraudulent Transactions) (Special Provisions) Act, has prompted me to write on this legislation.

The legislation, more commonly referred to as the Lottery Scamming law, was passed in 2013.

It makes it possible to prosecute persons found in possession of certain items related to lottery scamming, such as 'lead sheets' and other paraphernalia.

Prior to the passing of this legislation it was almost impossible to prosecute in those instances.

This brings into focus the case referred to above. In Regina v Meisha Clement (2016) JMCA 26, Clement's house was searched and a number of credit/debit cards registered to persons in the United States of America were found.

She pleaded guilty before Mr Justice David Frazer and was sentenced to eight years in prison.

Before the Court of Appeal she challenged her conviction, suggesting that she was forced to enter a guilty plea.

The Court of Appeal upheld the conviction but reduced her sentence to five years.

 

UNLAWFUL POSSESSION

 

 

OF PROPERTY ACT

 

Prior to the coming into effect of this legislation, the only charge that could have been brought against Clement, under similar circumstances, would have been unlawful possession of property.

Offences under the Unlawful Possession of Properties Act are highly procedural and technical to prosecute and it is highly unlikely that a successful prosecution could have been mounted against Clement under that legislation.

Clement, however, was charged under Section 8 of the Lottery Scamming legislation with the offence of possession of access information. Section 8 subsection 2 reads: "A person commits an offence where that person fraudulently possess, uses, traffics in or permits another person to use any data from an access device (whether or not the data is authentic), that would allow such other person to use the access device or to obtain the services that are offered by the issuer of the device."

Access device is defined in Section 2 as "... any card, plate, code, electronic serial number, account number, mobile identification number, personal identification number and any other means of access that can be used alone or with any other device, to obtain a benefit or other thing of value, or that can be used to initiate a transfer of money."

The legislation creates a number of other offences. Section 3, for instance, makes it an offence where any person by false pretence, whether directly or indirectly, through the medium of a contract or any other arrangement obtained from any person by means of false pretences any benefit for himself or any other person.

Section 4 makes it an offence to invite or induce a person to visit Jamaica for any purpose connected with the commission of an offence under the act.

 

WITNESS INTIMIDATION

 

Although there are general common law offences dealing with interference with witnesses, such as attempting to pervert the course of justice and threatening a Crown witness, the statute lays down specific offences for the intimidation of witness in cases under the act.

Section 7 makes it an offence where a person with the intention to interfere with or otherwise affect a criminal investigation or the trial of an offence under this act threatens, intimidate, causes any injury or attempt to cause any injury, to a person who is involved in any form or manner, in the criminal investigation or trial.

The possession of identity information is made an offence under Section 10. The section states: "A person commits an offence where that person knowingly obtained or possesses identity information of any other person in circumstances which gives rise to reasonable inference that the information has been used or is intended to be used to commit an offence under this or any law."

Section 10, (2) also makes it an offence to sell, transmit or make available or offer for sale any identity information. The section defines identity information to include name, address, date of birth, signature, credit and debit card number, tax registration number, driver's licence number, etc.

It is possible that the violence that usual surrounds the lottery-scamming activities caused the legislators to include Section 14, which makes offences under the act triable in the circuit court but without a jury and without any committal proceedings.

The penalties for breaching the provisions of the act are also quite stiff, ranging from a low of 15 years' imprisonment to a high of 25 years' imprisonment.

In passing sentence the legislation, at Section 13, allows the court to take into consideration a number of factors, including the age of the victim and the physical and mental state of the victim.

Section 17 of the legislation also allows the court to order the convicted person to compensate the victim with interest.

The legislation also allows evidence to be given that would otherwise be considered highly prejudicial and irrelevant. For instance, if a person is charged with larceny it is immaterial if he has a big house or an expensive car. Under this legislation, however, Section 15 allows the fact of possession of property disproportionate to known sources of income to be given in evidence and considered by the court.

This is a very strong legislation with teeth, and although there have been a number of arrest and a few convictions, the problem is always going to be how we investigate, arrest, charge and bring to a timely justice.

- Shena Stubbs is an attorney-at-law. Send feedback to shena.stubbs@gleanerjm.com Twitter:@shenastubbs