The Law Association of T&T has provided its feedback on the Anti-Gang Bill 2021 to the Office of the Attorney General.
In correspondence sent to the AG’s Office, yesterday, which was obtained by Guardian Media, the association sought to highlight several legal issues with the proposed legislation and sought to give recommendations to improve its potential effectiveness.
The association noted that offences created under the legislation centred around definitions of the word “gang” and the phrase “gang-related activity”.
Using the example of the offence of being a gang member, the association said: “A gang member is defined as a person who belongs to a gang which in turn is defined as a combination of two or more persons, whether formally or informally organised, who engaged in gang-related activity.”
It noted that a “gang-related offence” is defined as one listed in a schedule attached to the legislation, which includes several offences created by the legislation.
Noting that the wording of the legislation led to a degree of circularity, the association recommended that offences created by the legislation be excluded from the schedule.
“We do not anticipate this would weaken the Bill in any way,” the association noted.
“Rather, we anticipate that it would be strengthened by removing the possibility that a futile attempt would be made to charge an offence based upon a non-sequitur, namely, an allegation that a person is a member of a combination of persons engaged in gang-related activity, namely, gang-related activity,” it added.
The association also questioned the need for gang-related activity to be directed by a gang leader or member.
“It is sufficient that a person is a member of a combination of persons engaged in criminal activity listed in the First Schedule, without the need to identify the persons directing the activity,” it said.
The association also took issue with the fact that some offences under the legislation are strict liability, with no requirement for an accused to have knowledge of the gang-related activity.
“The danger is that a person may be sent to jail for a long time without even knowing that the persons he or she is associating with are engaged in criminal activity,” the association said.
It used a hypothetical example of a person providing financial aid for recreational activities in a community being charged if the money is given to persons, who are unknowingly members of a gang.
“It is not in accordance with the principles of fundamental justice that a person could be charged with and convicted of an offence for financing a group of persons for purely altruistic reasons without knowing that they are engaged in criminal activity,” it said.
The association suggested that Section 15(3) of the legislation, which allows the police to search the homes of suspects without a warrant should be limited to urgent situations and to when they are in “hot pursuit” of a suspect.
In terms of provisions in the legislation for a suspect to be held for 48 hours without charge, the association questioned why consideration of the police obligations during the period was not included.
“The association recommends that the section require that the police officer be actively engaged in the investigation of the offence during this period. Otherwise, the 48-hour detention would be arbitrary in violation of the Constitution,” it said, as it recommended that such applications be made prior to the expiration of the 48 hour period.
It also suggested that police officers should only be allowed to apply to extend the period of detention up to 14 days in circumstances where they can prove that their further detention is required to secure or preserve evidence, to prevent interference with an investigation, and to prevent the commission of an offence.
The association also mentioned that it noticed that unlike the 2019 version of the bill, which was not passed by Parliament, there is no intention to require a special majority.