OFF TARGET: Advocates want mandatory minimum removed, lawyers say legislators erred in enacting new Firearms Act

In an uncommon moment of agreement, both defence attorneys and prosecutors are aligned on the Government’s plan to amend the Firearms Act. But the Advocates Association of Jamaica (AAJ) says the reforms should go further by eliminating the controversial 15-year mandatory minimum sentence altogether.

AAJ President Tamika Harris welcomed the proposed changes, particularly efforts to revise or ease the rigid sentencing requirement. Still, she argued that true reform must restore full discretion to judges.

“The AAJ has long advocated for greater judicial discretion in sentencing as mandatory minimums can lead to disproportionately harsh outcomes that do not adequately reflect the specific circumstances of each case. We would, however, urge Parliament to go further and give serious consideration to removing mandatory minimum sentences altogether, particularly in cases where the accused indicates an intention to plead guilty. The current framework often necessitates applications for certificates to access the Court of Appeal so that the court can impose a sentence below the mandatory minimum. This is not the most efficient use of judicial resources and does little to promote the timely disposal of matters,” she told The Sunday Gleaner.

Speaking during the Sectoral Debate, National Security and Peace Minister Dr Horace Chang said amendments would be brought to Parliament “in short order”.

The Government is proposing to separate imitation firearms from real weapons and introduce lighter penalties for possession of imitation guns. The move follows criticism that the current law leaves judges with little or no discretion even in cases involving children or non-criminal uses such as artistic or educational purposes.

Harris said the AAJ supports a more flexible approach at the trial level, noting that it “would better support efficiency, fairness, and the proper administration of justice”.

“With respect to individuals currently charged with offences involving imitation firearms, much will depend on the final form of the amendments and whether Parliament provides for retroactive application. Traditionally, unless expressly stated, legislative changes of this nature are applied prospectively. However, if the amendments are framed in a way that benefits accused persons, there may be scope through legal argument for such individuals to seek the benefit of the more lenient regime, particularly at the sentencing stage,” she explained.

Harris added that the AAJ favours clearer distinctions between real and imitation firearms.

“A one-size-fits-all approach has proven problematic, and a more flexible sentencing structure would better serve the interests of justice. We continue to monitor the developments closely and would welcome reforms that balance public safety with fairness and proportionality in sentencing,” she said.

Attorney-at-law Matthew Hyatt is representing a client now facing the mandatory minimum after he was arrested for illegal possession of a firearm, which was allegedly being used as part of his job requirements.

He told The Sunday Gleaner that while the intent of the law passed in 2022 was understood, the pitfalls could have been seen well in advance.

“I think it was an emotional knee-jerk response to a very legitimate issue because you do have unscrupulous persons who will use imitation firearms to scare people into thinking that they have a real firearm,” he reasoned.

Hyatt shared that the unusual case involving an imitation weapon is as serious as it is funny.

“The authorities conducted a ballistic examination on the cardboard gun. I am dead serious. I have the ballistics certificate. It may be standard procedure to show that the gun is not capable of firing as a deadly weapon with bullets, and so on, but I think it

is a waste of government resources. A complete waste of time to look at an item like a cardboard gun and to be getting a ballistics report,” Hyatt said.

He argued that the mandatory sentence is excessive.

“In terms of the sentence of 15 years, mandatory minimum, I think that sentence is manifestly excessive because what it does is that it robs the judges of any discretion to look at the circumstances, to look at the facts, the peculiar facts of any case, to look at the individual himself or herself, and to see the circumstances under which this person came into having an imitation firearm,” he said.

“And so it means, therefore, that a teenager who is on the road in a water gun fight can be charged and face 15 years for having this little water gun in his waist,” he added, noting that criminal liability starts at age 12.

“Once you take the plea, it's 15 years, and you are dead in the water,” said Hyatt, highlighting that as a result, many accused persons opt to take their chances at trial.

Attorney John Clarke pointed to similar concerns, including cases involving imitation firearms used as props in music videos.

“There are a few such cases. We don’t know what the proposed amendments are and whether it would be retrospective. I believe the current law may trample on the doctrine of separation of powers, and the lack of discretion offends the Constitution, especially in cases where the imitation firearm was not used for a criminal purpose. I welcome any attempt to ameliorate the effect of a wicked law,” Clarke said.

Director of Public Prosecutions Claudette Thompson said prosecutors have recommended changes while recognising the risks posed by imitation firearms.

“We recognise the real danger they pose. These items are often indistinguishable from real weapons and can be used to intimidate, facilitate serious offences, and provoke lethal responses from law enforcement officers and licensed firearm holders,” she said.

Nonetheless, she said that the law should allow for flexibility.

“The ODPP's (Office of the Director of Public Prosecutions’) position is that the law should adequately reflect this position while ensuring that it provides the latitude for ‘appropriate’ penalties on a case-by-case basis,” she told The Sunday Gleaner.

The Jamaican Bar Association has also raised concerns about the act. Although prosecutors initially supported the mandatory minimum, they later sought adjustments, particularly to facilitate plea bargaining. Concerns have also been raised about the strain on the Gun Court system, where rigid sentencing rules have contributed to delays.

 erica.virtue@gleanerjm.com