Plea-bargain fix - Government establishes committee to make changes to ineffective law

Edmond Campbell, Senior Staff Reporter

THE MUCH touted Plea Bargaining legislation, passed in 2005 to help local prosecutors go after leading crime bosses while reducing the time taken to complete some cases, is proving to be less than successful.

At present, a high-profile committee appointed by the Government is reviewing the statute with a view to making significant changes to it.

Justice Minister Senator Mark Golding told members of the Upper House last Friday that a committee appointed in November 2013 and chaired by Justice Karl Harrison has already produced a preliminary report.

Responding to concerns raised by leader of opposition business in the Senate, Tom Tavares-Finson, about the ineffectiveness of the law, Golding admitted that the statute, "is not working as was envisaged when it was passed."

He said the terms of reference of the committee, comprising key stakeholders at various levels in the justice system, were to review the law and make it relevant and effective.

"As soon as they indicate to me that they have the final recommendations, I will be moving forward with going to Cabinet to seek to amend that piece of legislation to make it more effective," assured Golding.

In his contribution to debate on the Criminal Justice (Suppression of Criminal Organisations) Act, commonly referred to as the anti-gang bill, Tavares-Finson said the Plea Bargaining law has demonstrated itself to be unworkable.

"I don't think I have seen it operated on one occasion," said Tavares-Finson who is a defence lawyer.

"You cannot expect that this legislation (the anti-gang law) is going to work without a functioning plea bargaining law because you are talking about persons leaving gangs and giving evidence against the gang. The basis of that is a plea bargain," added Tavares-Finson

The opposition senator also raised concern about the Witness Protection Programme, which he claimed was not functioning. However, he did not provide specifics on the problems plaguing that programme.

"The first thing you have to do is to be prepared to offer the information to the State so that you can get some amount of protection and if the Witness Protection Programme is not functioning for whatever reason ... you are not going to get the information. And when you do get the information you won't be able to protect the person who is giving the information, so that the whole system that you are going to try to implement is going to fail."

Tavares-Finson also wants the Government to take another look at the Interception of Communication Act which he suggested has crucial provisions that are being ignored in the courts.

He noted that under the Interception of Communication Act, evidence can be extracted to be used against criminal organisations.

RIGHT TO PRIVACY

The defence lawyer highlighted that when the legislation was passed, provisions were put in place to protect a person's right to privacy. He said this has since been enshrined in the Charter of Fundamental Rights and Freedoms.

He stressed that safeguards were included to prevent the misuse of the legislation. "What has happened is that you put in the guidelines and you pass the legislation and the courts have sidestepped the guidelines which the Parliament of Jamaica has put down and we need to look at it."

Responding to this issue, Golding said the amendments that were introduced in 2011 to change the Interception of Communication Act are themselves being reviewed.

The anti-gang legislation was passed in the Senate with three amendments.