Right Steps & Poui Trees


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Resumption of the Death Penalty?

Calls for the resumption of hanging in Jamaica are made periodically, often at a time when there is an increase in the number of murders or in a period when there have been particularly vicious or high profile murders. People are understandably angry, afraid and frustrated and want to see something done to curb violent crimes and  punish those who commit murder. The death penalty seems like an uncomplicated action to call for, a finite action with seeming immediacy to it. And so the call: reintroduce the death penalty; start hanging again.

JIS Robert MontagueThe call  has over time been made by people in various spheres across the society and the latest call has come from Minister of National Security Robert Montague, in a speech at a Jamaica Constabulary Force (JCF) Passing Out Parade and Awards Ceremony  at the National Police College of Jamaica, at Twickenham Park, on  April 29. (Click here for JIS release: Govt. to Wage Relentless War against Criminals)

 

Mr. Montague said the Ministry’s overall approach to creating safer communities is based on five key pillars –  crime prevention through social development; situational prevention; effective policing; swift and sure justice processes; and reducing re-offending. (JIS – April 30, 2016)

It was while speaking about justice processes that Minister Montague made his comments about the resumption of hanging:

These first two pillars will be further buffeted (sic) by having an effective system in place that increases the risk to criminals of getting caught, to bringing more of them to justice and delivering sure, swift yet just punishment. It cannot be that persons feel comfortable to exact criminality but do not expect to be severely punished. Persons who intend to break the law must know that the punishment will be sure, swift and just. In that regard I have asked the Minister of State, Senator Pearnel Charles, Jr to consult with a number of agencies, including the Attorney General’s Office and the Ministry of Justice to determine if there are any legal impediments for the resumption of hanging in Jamaica.

Minister Montague

(Click for transcript of Excerpt from Speech by Minister of Security Robert Montague – April 29, 2016 dealing with the five key pillars mentioned above.)

Last week, when I first heard an audio clip from the Minister’s speech during a newscast, his phrase “sure, swift and just” struck me. This is certainly something that is needed as part of the strategy to deal with violent crime.

Sure: What is the likelihood that someone who commits murder in Jamaica will be apprehended, tried and convicted for their crime?

The JCF’s Corporate Plan for 2015-2018 states that for the period 2009- 2014, “The combination of improved investigative capabilities and the application of technology have paid rich dividends, which resulted in a 41 percent cleared-up rate for murder; 72 percent for aggravated assault; 41 percent for shooting and just below 50 percent for rape.” In a 2013 article in the Jamaica Observer, then DCP in charge of crime (now Commissioner of Police) Carl Williams explained the meaning of “cleared-up” in the Jamaican policing context:

Commissioner-of-Police-Carl-McKay-Williams“Clear-up rate of murders are a little below 50 per cent right now, but my mission is to ensure that we get it above 50 per cent for murders, so we may ensure that a person is less likely to get away with murder than to be out there walking free to commit other murders,” Williams said.

Noting that the clear-up of crimes is the clearest measure of effectiveness of investigators or detectives, Williams — in clarifying what is meant by the term — noted that in some countries a crime is cleared up when the police identify the suspect. However, this is different for Jamaica as Williams explained that clearing-up of a crime not only occurs when the suspect is identified but when he/she is arrested and charged following a process of investigation.

“A crime may also be cleared up if the person responsible for the crime is unavailable for arrest and prosecution by virtue of the fact that he is dead or in custody in another jurisdiction,” Williams further explained. (Jamaica Observer – Dec 4, 2013)

According to the JCF, the cleared-up rate for 2015 was 55%, which indicates an improvement in their figures, but still means there is a great likelihood that someone who commits murder will not even face prosecution for the crime.

There is an even more remote likelihood that a person who commits murder will be convicted, as the conviction rate for murder in Jamaica is cited as 5%.

So we do not have a sure system. If there is a 95% chance that you will never be convicted, it doesn’t much matter whether the sentence is hanging or life imprisonment. In fact, what has been shown to have the greatest deterrent effect is the likelihood of being apprehended and convicted for the crime, not whether the punishment will be the death penalty.

Swift: How quickly is a person who has been charged with murder likely to be tried?

Long delays are the norm in our justice system and this has been so for decades. A March 31, 2016 Gleaner article contained this information:

paulaLlewellynThere were 522 cases on the court list at the start of the Hilary term in January, and, according to Director of Public Prosecutions (DPP) Paula Llewellyn, 127 of them are five years or older – all murder cases.

Llewellyn, who was speaking at the start of the Easter term yesterday, said 96 of these cases are down for trial during this term and that her office is ready to proceed with 51….

According to Llewellyn, 526 cases are on the Circuit Court list for this Easter term. That number includes the 504 cases that were rolled over from the previous term, 328 of which were for murder. (Daily Gleaner – March 31, 2016) 

There have been cases which have not come to trial until 7, 8, 9 or 10 years after the murder was committed. In recent discussions about the perennial delays in the justice system, many causes were given, as they have been in the past. There is a great deal of work to be done to make our systems deliver justice swiftly, or even in a timely manner, as envisaged by the Mission Statement of Jamaica’s Courts.

Just: How do you guarantee a just outcome in a flawed and corrupt system?

Beyond the fundamental issue of whether the death penalty can be classified as a  just punishment, lies the question of the dangers posed to justice by a flawed and corrupt system. On page 26 of the 2008 JCF Strategic Review Report, a number of corrupt practices said to be endemic in the police force are listed, some of them having the potential to impact directly on the outcome of an investigation, prosecution and conviction.

Strategic review of JCF pg 26 with border

There have been instances in which physical violence and threats have been used to obtain confessions; statements have been forged by policemen to support a case; evidence has disappeared (eaten by rats or burned up in mysterious fires); files have gone missing; etc.

Long delays have also given rise to the death, migration or other unavailability of witnesses,  or the fading of memories with time. Issues of inadequate legal representation or access to resources to support a case also have the potential to impact a just outcome. Cases in other jurisdictions have seen DNA evidence exonerating people who have been serving long sentences for crimes they were wrongly convicted of. Do we believe that our justice system is free of such cases?

All these problems also affect cases which carry sentences other than capital punishment, and can result in unjust outcomes too. But where the sentence is death, should the State take the risk of executing a person for a crime they did not commit?

Opposition Spokesperson Responds

Opposition Spokesperson on Justice & Governance, Senator Mark Golding gave a useful response the next day, in a press release which included the following:

The Opposition Spokesperson on Justice & Governance stated – “I do not regard Minister Montague’s announcement that the Government is seeking ‘to determine if there are any legal impediments for the resumption of hanging in Jamaica’ as a serious policy initiative that will be implemented. The Government can’t hang more people; nor, as a practical matter, can Parliament.  Only the Courts can make that happen, and the Courts are governed by the rule of law and, in particular, the human rights guarantees in our Constitution.

mark goldingIt should also be borne in mind that the reactivation of the death penalty, after a de facto moratorium over the 28 years since 1988, will bring condemnation on Jamaica, and possibly even adverse action, by those of our most important international development partners that are most hostile to the death penalty (e.g. the European Union and Canada), and trigger strongly adverse criticism from the international human rights community.  The Government must decide if it wants to inflict that on Jamaica at this time, and we as a society must also be very clear that we are doing the correct thing and for the correct reasons. 

Full release: Opposition responds to Minister Montague’s comments on the Death Penalty 30-4-16

There is a great deal to be done to prevent and deal with violent crime in Jamaica. Both Minister Montague and Senator Golding refer to some of these other measures. People may think that in calling for the resumption of the death penalty, they are calling for something straightforward and effective, that can be implemented quickly, with immediate results on the murder rate. This is not so. And part of my concern whenever this call comes up is that it diverts attention and energy from the measures which will in fact have a real impact. A sure, swift and just system will impact the levels of crime, without the resumption of the death penalty, which I do not support for a number of reasons.


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While Waiting for the West Kingston Commission of Enquiry Report

May 24 will make 6 years since the 2010 joint security operation in West Kingston, which resulted in the death of more than 70 people, and by all indications the report of the West Kingston Commission of Enquiry will be submitted to the Governor General before then. It isn’t yet clear, however, when the report will be made public. It would certainly be fitting if that were to happen before May 24.

The last session of the Enquiry took place between February 8 – 19 (2016) and was to a large extent overshadowed by the political campaigning leading up to the general election on February 25.

The Commission held its first sitting on December 1, 2014 and held a total of 90 sittings over 15 months. It was presided over by three commissioners – Sir David Simmons (Chairman), Justice Hazel Harris and Professor Anthony Harriott.

The Enquiry had specific Terms of Reference (Terms of Reference for the Commission of Enquiry into events which occured in Western Kingston and related areas in May 2010) and more than 90 witnesses gave testimony, including:

  • residents of West Kingston
  • former Prime Minister Bruce Golding, former Minister of National Security Dwight Nelson, former Attorney General & Minister of Justice Dorothy Lightbourne
  • former Chief of Defence Staff of the Jamaica Defence Force (JDF), Major General Stewart Saunders and other members of the JDF
  • former Commissioner of Police Owen Ellington and other members of the Jamaica Constabulary Force
  • former Public Defender Earl Witter, QC
  • other civilian witnesses, public officials and expert witnesses.

The release of the report will raise again for discussion the value of having had the Enquiry. In this regard, comments made by Lord Anthony Gifford, QC, who represented the Office of the Public Defender (OPD), are important; the comments were made on February 18, 2016, at the start of his final submissions to the Commission.

WKGNCOE Gifford 18-2-16

Seated behind Lord Anthony Gifford is Mrs Arlene Harrison-Henry, the current Public Defender

Lord Gifford thanked former Public Defender Earl Witter for having called for the Enquiry,and for his work on investigations towards  that end. He then went on to address the Chairman on the importance of holding the Enquiry:

Mr Chairman, we are going to be urging that you and your colleagues make strong findings in relation to a number of human rights abuses. We hope and trust that your report will be a historic document, which will reduce or eliminate such abuses in the future. But Mr Chairman, I would like to say publicly to those who have had doubts about the value of this enquiry that already the process, which has happened over the last  90 days (but in fact, year and a quarter) has had in itself immense value. And I say that for three reasons.

First of all, it has shown that an event which has cost around 70 lives in one operation cannot be swept under the carpet. It is legally a part of the duty of the state under the right to life, that when life is taken by agents of the state there must be a full and impartial enquiry. So that what has been done was necessary by the Constitution and by international principles.

And in the holding of it and the managing of it, I pay tribute to the even-handedness of you, Mr Chairman, and the intense interest, dedication that you all have shown, especially, may I say, at times when the argument has been robust or the scenes have been emotional. And coupled with thanks to you, I would thank your Secretary and all her staff for the efficient assistance which they have given.

It’s not just a question of law. The second value of the process so far has been that voices, it has enabled the voices of the residents, many residents of Tivoli Gardens to be heard. These are voices which are normally not heard but they have been heard over the last year, the length and breadth of Jamaica and further afield. And I thank the members of the media who have enabled the transmission of these hearings, to all those (and there are many) who have watched them or listened to them in their workplace or their homes. And those voices have been the heart of this enquiry. I would like to pay tribute to the courage of the civilian witnesses, who came forward, re-living the pain of their experiences as they spoke about the loved ones who are here no more. And I say to those witnesses, without your participation, this enquiry would have had little or no value.

Mr Chairman, thirdly, it has been valuable because this enquiry has required those who hold and have held some of the highest offices in the land to come here, account for their actions and be subjected to severe and intense questioning and scrutiny. That does not usually happen. People like the Chief of the General Staff and the Police Commissioner don’t often have to answer questions in justification of what they did. And the exercise has been very revealing. And that is why I wanted to say that, quite apart from the contents of your report, what has happened already has had value in recognizing the pain, the trauma and by re-living it and questioning it to make it bring some kind of understanding and, in due course, we hope closure.

(Transcript made from February 18, 2016 broadcast of Enquiry)

The Submissions and Recommendations made by the OPD are posted on its website, which is  welcome and useful. The OPD’s April 2013 Interim Report to Parliament is also available on the site.

OPD WKGNCOE submissions pic OPD Written Submissions to Commission of Enquiry

OPD WKGNCOE recommendations picOPD Recommendations to Commission of Enquiry

OPD Tivoli Interim Report picOPD April 2013 Interim Report to Parliament

Horace LevyHorace Levy has written an article summarizing the OPD’s Submissions and Recommendations, which can be accessed here.

The West Kingston Commission of Enquiry is part of a process. The publishing of the report will not signal the end of that process. It is one more step or milestone in a much longer journey towards accountability and justice for the largest loss of life in a single security operation in Jamaica since Independence (indeed, since the Morant Bay Rebellion in 1865, though some object to this reference).


Seeking An Answer From Police Commissioner About Removal of Masks At Political Meetings

I heard the Commissioner of Police, Dr Carl Williams, being interviewed on Nationwide radio yesterday afternoon. During the interview, the Commissioner said that as of now, when people wear masks at political meetings, the masks will be removed by the police.

I would ask the Commissioner to clarify what provision in law the police would be acting on in doing so.

I am genuinely seeking an answer.

The Commissioner and other members of the JCF have been raising the concern about the practice of wearing masks to political meetings. The Commissioner said during the interview that people who wear masks are concealing their identities with the intention of committing criminal acts. (There was some irony to this, given long-standing complaints about the practice of some police of wearing masks during operations, effectively concealing their identities in instances of alleged police abuses.) Cliff Hughes, who was conducting the interview, later raised the possibility that those wearing masks were wanting to attend meetings of both parties without being identified.

jcf cop statement re 7-2-16 shooting at jlp rallyGiven the shooting on Sunday night during the JLP mass meeting in Sam Sharpe Square, in which two people were killed, a number of people were shot and injured and the safety of many more threatened, I can understand the desire of the police to increase security at political events. The Commissioner said that police investigations indicated that the incident wasn’t politically motivated, but was related to conflict between two gangs based in the Flankers community in MoBay. He has said that criminals would use any event as an opportunity to carry out their criminal actions.

It is one thing for the police to express their concerns; to encourage people not to wear masks to political meetings; to ask the political parties to get their supporters to desist from the practice; to seek a meeting with the Political Ombudsman to gain her support in having the practice banned. JCF tweet re masks - 9-2-16It is another thing for the police to actually be removing masks, unless there is a power in law which provides for them to do so.

If the police have a reasonable suspicion that a masked person has committed a crime or is about to commit a crime, then the police can arrest the person and require the removal of the mask as part of the process of establishing the person’s identity. But other than that?

I hope Commissioner Williams will clarify.

(This does lead to a more general discussion about the extent of an individual’s right to cover their face in public, which in some countries has led to heated debate.)

 

 


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Police Commissioner Williams’ Presentation in Parliament Today, On Murders in Jamaica

This morning, Commissioner of Police Carl Williams made a presentation in Parliament to the Internal & External Affairs Committee, chaired by Opposition MP Derrick Smith. The presentation was about the current situation regarding murders in Jamaica and the murder reduction strategies being implemented by the Jamaica Constabulary Force (JCF).

carlwilliamsc20140908ng

At the start of the session, Government MP Mikael Phillips, supported by a number of other Government members of the committee, suggested that the session should be held in camera, due to the potentially sensitive nature of the exchange following the Commissioner’s presentation. Derrick Smith and Delroy Chuck, the two Opposition MPs present disagreed, saying that any questions that were of a sensitive nature could be disallowed by the Chair, and that Commissioner Williams was also entitled to refrain from answering any questions he felt would reveal sensitive information.

Eventually, MP Phillips put forward a motion that Commissioner Williams should make his presentation in open session, but that the question and answer session should be held in camera. Given the numbers in the Chamber, MP Smith didn’t bother to put the motion to a vote, but proceeded along the lines of the motion.

Commissioner Williams’ presentation was made in open session, following which the press and members of the public (myself included) left the Parliament, to allow for the in camera session. MP Chuck also left at this point.

(ACCESS COMMISSIONER WILLIAMS’ PRESENTATION HERE: Police Commissioner Williams – Presentation in Parliament Nov 11 2015)

JCF submission to Parliament photo

I question the necessity for the entire Q & A session to have been held in camera and hope that this doesn’t set a precedent. I think the better model is for in camera proceedings to be triggered by specific questions, rather than for an entire Q & A session to be closed because of the potential that sensitive questions may be asked.

I plan to do a separate blog about some of the information presented by Commissioner Williams.