Pepper spray is OK?

Forms of self-defence have become more prevalent in Jamaica as the impact of crime and violence wreaks havoc on our peace of mind and sense of security. Unfortunately, it is not easy to ascertain or confirm the extent to which some of these self-help measures are likely to land otherwise law-abiding citizens in trouble.

Section 3 of the Offensive Weapons (Prohibition) Act, prohibits persons from having 'offensive weapons' in any public place without lawful authority or reasonable excuse, and section 2 defines an offensive weapon as "any article made or adapted for use for causing injury to the person or which is intended by the person having such article with him to cause such injury".

Section 2 also states that the definition of offensive weapon does not include any of the following substances that a person has with him for personal protection, namely "(a) mace or pepper spray; (b) or such other substance as the minister may be prescribed by order subject to affirmative resolution." One can, therefore, reasonably infer that persons may lawfully possess mace and pepper spray in a public place.

It should be noted that the Firearms Act defines 'restricted ammunition' as being any ammunition containing or designed to contain any noxious liquid, gas or other things, and the customs act provides that arms and ammunition are prohibited from importation without the permission of the commissioner of customs and excise.

Possession

Interestingly, section 5 (1) (b) of the Firearms Act (1968) (as amended) in England creates an offence for unauthorised possession of pepper spray as it is unlawful for a person to be in possession of "any weapon of whatever description or adapted for the discharge of any noxious liquid, gas or other thing".

Based on the report on one case from the English Court of Appeal - R v Richard Harker (2001) - police officers attempted to apply the breathalyser to a man who had been involved in a motor vehicle accident and was suspected of being drunk, when he took a canister of pepper spray from his pocket and sprayed both officers in the face. Among other things, he was charged for unauthorised possession of pepper spray and assault on the police, and pleaded guilty to both charges.

Based on the Jamaican Offensive Weapons (Prohibition) Act, it is likely that Harker would not have been convicted for unauthorised possession of pepper spray, but the unlawful use of the pepper spray could still cause him to be convicted for assault.

In short, the law in relation to pepper spray appears to be that its importation is prohibited unless the commissioner of customs and excise gives permission, but no permission is required to possess it.

Sherry-Ann McGregor is a partner and mediator with the firm Nunes, Scholefield, DeLeon & Co. Send feedback and questions to lawsofeve@yahoo.com or Lifestyle@gleanerjm.com.