Peter Espeut | Preventative detention is unconstitutional
The real deterrent to committing murder (or any crime) is the certainty of being caught, charged, tried, convicted, and sentenced in a court of law. In my view, one of the causes of the high crime rate in Jamaica is the inability of our police force to catch wrongdoers, and their clumsiness while (not) collecting evidence to bring them to justice; and the ineptitude of our prosecutors, who do not seem to know when they have enough of the right kind of evidence to take a case to court and win.
For a long time, the preferred method of our constabulary to ‘clear up’ murder and other cases was to engage the miscreants in shoot-outs, after which the suspects were pronounced dead upon arrival at hospital. This earned us world records in police extrajudicial killings, frowned upon by our donors. We have never been successful at training our police cowboys in effective inductive and deductive detective work, and solid forensic science.
Entry-level qualifications for FBI agents and Scotland Yard (London Metropolitan Police) detectives are university degrees in fields such as forensic science, criminology, law, financial accounting, computer technology, etc; until now, we have been satisfied if our investigating officers are literate after a high-school education. Sometimes it seems that Jamaican criminals are better educated than the police!
Because our security forces/justice system seems to lack the brains to bring ‘violence producers’ before the courts, successive Jamaican governments have sought the power to detain suspects indefinitely – so-called ‘preventative detention’. The original Gun Court Act sought a sentence of “indefinite detention”; this was declared unconstitutional by the Judicial Committee of the UK Privy Council.
LACK OF INVESTIGATION CAPACITY
The centrepiece of the crime plan (such as it is) of the present Jamaican Government seems to be states of public emergency, wherein suspected violence producers may be detained indefinitely without any charges being laid against them. The strategy seems to be to take known gang members off the streets, so that they can’t contribute to the public mayhem – which amounts to preventative detention. This has now been declared unconstitutional by the Jamaican Constitutional Court.
If the police have credible evidence against anyone, they would not need to detain them under emergency powers without charge. The Government wants to use preventative detention to make up for their lack of investigation capacity.
Now we hear that the Government wishes to amend the Bail Act to be able – under ordinary circumstances – to detain persons charged with certain offences (e.g., murder, illegal possession of a firearm) without the possibility of bail. In essence, the Government will not need to declare a state of public emergency to detain a suspected violence producer indefinitely; using a suitably worded Bail Act, anyone can be held indefinitely without charge. We will then have a police state.
Let me explain the big problem with this. If the police have concrete evidence against someone, justice can take its course, if all goes well. The problem starts when the police do not have hard evidence against someone, but only have suspicions; that is when they want to use preventative detention to lock up the person, giving them no recourse at law. Suppose the Government or the police do not like someone – say a journalist or columnist who constantly criticises them – they can order such a person locked up without the possibility of bail ‘under suspicion of being a violence producer’, or anything.
This could happen to you, my reader!
CAN NOT BE THE BASIS
Should such an amendment to the Bail Act be implemented, I am confident it also will be (eventually) declared unconstitutional. Preventative detention under whatever guise will always be found to be contrary to Jamaica’s Constitution, which guarantees all Jamaicans the presumption of innocence and freedom of movement, no matter what they look like or whatever their address.
Preventative detention cannot be the basis of a serious anti-crime plan.
The first element in an effective anti-crime plan to deal with our pandemic of lawbreaking must be to develop a highly trained team of forensic investigators. Over the years, our preoccupation has been to assemble and equip an army of Rambo-style action heroes who can outshoot our heavily armed gangs. That strategy has not worked. Brainpower is what will win our war against crime, not just firepower.
A few years ago, one of my more talented parishioners graduated from The University of the West Indies with a degree in forensic science, and applied to the Jamaica Constabulary Force; she was turned down because she was too short. Apparently, only persons of a certain height can catch criminals! That approach is not going to solve our crime problem.
Let me repeat my opening sentence: “The real deterrent to committing murder (or any crime) is the certainty of being caught, charged, tried, convicted, and sentenced in a court of law.” An effective anti-crime plan must contain a strategy to convert the Jamaica Constabulary Force into an entity that can do just that! If we change the entry qualifications to require all detective constables to have university degrees (and provide salaries to match), this will change the character of our police force.
The second element in an effective anti-crime plan to deal with our pandemic of lawbreaking must be to equip the security forces with the technology to detect crime, including high-resolution spectroscopy, and electronic surveillance and recording equipment.
As a preventative measure, our ports must also be able to detect smuggled guns and ammunition, and being an island, we must obtain equipment allowing the movement of small boats around our coastal areas – especially at night – to be monitored.
A properly trained and equipped investigative agency will also be able to detect and prosecute political crime and criminals. We will finally have the capacity to make the link between politics and criminal gangs. Maybe for that reason, such an entity will never come into existence.
Peter Espeut is a sociologist and human development scientist. Send feedback to email@example.com.