Associations representing lawyers oppose 20-year minimum gun sentence proposal, want judicial discretion

Two associations representing lawyers have come out against a recommendation by the National Security Council to increase the mandatory minimum sentence for illegal gun possession from 15 to 20 years in prison.

The information was shared by the Office of the Cabinet last week.

The council disclosed that, under proposed amendments to the Firearms Act, a new criminal offence will be created for adults who groom children to use, store, transport or acquire illegal guns.

“This is necessary to address the gap whereby gangs seek to recruit and enlist minors in the commission of gun crimes,” the statement released on Sunday said.

It said the council also agreed that further consideration should be given to how cases involving children found with illegal firearms are handled and that a review would examine matters surrounding firearms with expired licences.

Further, the council, which is chaired by Prime Minister Dr Andrew Holness, said concerns raised by the public about the possession of imitation firearms would be “clearly addressed to distinguish between toy guns and guns designed to realistically imitate a weapon”.

The Ministry of National Security and Peace has been directed to have the draft legislation containing the proposed amendments ready by the end of November this year for wider consultations, the statement said.

However, the council has indicated that, before the new provisions take effect, the Government will implement a gun amnesty and cash buyback programme to give persons holding illegal guns an opportunity to surrender them.

In a joint statement on Friday, the Jamaican Bar Association (JAMBAR) and the Advocates Association of Jamaica (AAJ) said they remained concerned about the recommendation to increase the mandatory minimum sentence for illegal possession of a firearm from 15 to 20 years' imprisonment.

They argued that judges should be given discretion when handing down sentences to take into account the circumstances of individual cases.

“We recognise that the determination of criminal penalties is Parliament's prerogative and acknowledge the need for strong measures to combat firearm-related crime. Our fundamental concern, however, remains the erosion of judicial discretion and the potential for disproportionate sentences where judges are unable to consider the exceptional circumstances of individual cases.”

The associations argued that increasing the mandatory minimum sentence would not address that concern.

They called for a narrowly defined exceptional-circumstances provision, permitting a sentencing judge to depart from the statutory minimum where its application would result in a manifestly excessive or unjust sentence.

“Such discretion could be subject to clearly established statutory criteria and a requirement for the judge to provide reasons.”

They argued that legislative guidance already exists in other jurisdictions, such as Ireland.

“Ireland's firearms legislation provides for mandatory minimum sentences in specified cases while allowing judicial departure where exceptional and specific circumstances would render the prescribed minimum unjust. The Irish legislative framework also addresses realistic imitation firearms, providing useful guidance for Jamaica's proposed reforms.”

Meanwhile, the associations want consideration to be given to meaningful sentencing credit for early guilty pleas, beyond the benefits presently available under Jamaica's plea negotiation legislation.

“Early guilty pleas can spare victims and witnesses the ordeal of trial, reduce delays and conserve judicial resources,” they argued.

Further, the associations believe appropriate sentencing consideration should be available even where an accused person is unable to provide assistance to the prosecution, subject to judicial oversight and suitable safeguards.

“We emphasise that preserving judicial discretion does not undermine the seriousness of firearm offences. Rather, it ensures that punishment remains proportionate and that justice is administered according to the circumstances of each case.”

The associations also believe that greater attention must be directed towards the channels through which illegal firearms enter Jamaica.

“Given the discovery of illegal firearms in imported cargo, consideration should be given to whether the existing legislative framework adequately addresses accountability within the shipping and logistics industry.

“We recommend an examination of the responsibilities of shipping companies, freight forwarders, importers, couriers and other relevant participants in the supply chain, in so far as the importation of illegal firearms is concerned, including whether additional statutory duties or offences are necessary to address the knowing facilitation of firearms trafficking or culpable breaches of cargo-security obligations.

“Any such provisions must be carefully framed to ensure that innocent participants are not subjected to criminal liability merely because illegal firearms are discovered in cargo handled by them. The fight against illegal firearms must extend beyond the individual found in possession of a weapon to those responsible for facilitating its entry into the country.”

Meanwhile, the associations have welcomed the proposal to create a specific offence targeting adults who recruit, groom or otherwise exploit children in firearms-related activities.

They also welcomed the proposed review of the treatment of children found in possession of illegal firearms, recognising their vulnerability, potential exploitation and prospects for rehabilitation.

“The associations are similarly encouraged by the proposed clarification of the treatment of imitation firearms, including the distinction between toys and realistic imitation firearms, and the review of the treatment of licensed firearm holders whose licences have expired.”

The associations said these were positive developments.

They also welcomed the proposed consultation on the legislative amendments and said they looked forward to meaningful engagement with the Government before the legislation is finalised.

“We remain committed to supporting effective measures to combat firearm-related crime while safeguarding fairness, proportionality, judicial independence and the proper administration of justice.

“Protecting the public and preserving the fundamental principles of justice are not competing objectives.

“A sound legislative framework must achieve both.”

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