AG seeks to put Public Order Bill on right track

BY DELANA ISLES

ATTORNEY General Rhondalee Braithwaite-Knowles has offered some clarity on the soon to be tabled Public Order and Criminal Justice Bill 2020.

The statement from the Attorney General comes amid a lot of public discourse on the bill, most of which is highly critical of the proposed law.

“The public commentary would benefit from more information on the bill, how it came about and what it seeks to do,” the AG stated.

“This sort of information would normally be provided during the debate in the House of Assembly but given the pitch of the public discourse, it is necessary to provide this information in advance of the debate in the House of Assembly.”

HOW THE BILL AROSE

Braithwaite-Knowles said the bill was drafted by an external consultant drafter - a former attorney general in a Caribbean overseas territory.

It was part of a project to address issues flagged by the Royal TCI Police Force to reform areas of criminal law in the territory to aid in policing.

She said the project covered a range of areas of reform including but not limited to witness protection and victims of sexual offences and the misuse of computers.

“The elected government is also keen to modernise and expand the law dealing with threats - as a deterrent to an increase in threatening behaviour recently displayed in the Islands in conjunction with a public awareness raising campaign.”

CONSULTATION

The AG said on May 15, consultation was initiated with the legal profession, through the Bar Council and the Office of the Director of Public Prosecutions, law enforcement through the Royal TCI Police Force and the judiciary.

“Whilst all stakeholders acknowledged receipt of the bill and covering note and promised to revert with comments within the consultation period (May 25), only the judiciary responded with substantive comments including that the judiciary ‘welcome[d] the legislation’ which they said would ‘definitely make us feel more safe and protected as we go about our duties’.”

Braithwaite-Knowles said that the DPP indicated that he was grateful for “the hard work and efforts which have gone into it” and noted that “it could not have come at a better time, given our current local circumstances”.

The president of the Bar Council responded preliminarily to question whether, in reference to “section four and five of the draft, did the framers of the draft intend for the term ‘harassment’ to encompass instances of stalking of unmarried persons?”

The characterisation of the bill by some members of the public as unprecedented or seeking to undermine freedom of speech are quite wrong

– Attorney General Rhondalee Braithwaite-Knowles

She noted that the “Domestic Proceedings Legislation does not offer [as far as I am aware] for the protection of unmarried persons via a restraining order or any kind of legislative relief from harassment (by a former partner).”

The AG stated that despite assurances, no other submissions have been received to date, save for an informal response from a single member of the Bar who sent preliminary comments to the Bar Council in response to the circulation of the bill to the entire Bar on May 18.

She added that in those informal comments, that attorney referenced the following preliminary points:

“Unlike every other ordinance in TCI, there is no interpretation section at the beginning of the ordinance, but there is one at the end (as in the UK) albeit expressed to be in relation to Part IV. I think it should be at s.2 as usual.

“Section nine seems to unnecessarily limit the means of communication, and should not be limited to ‘sending’ the communication.

“Other forms of conveying a message should be included, including personal or physical interaction or confrontation, such as displaying text and/or imagery or making audio or other sound directly in front of a person in circumstances where they are unable or ill-equipped to avoid seeing or hearing it.

“Regarding s. 9(1), the expression ‘electronic communication’ should be defined. It should be considered whether to give the word ‘electronic’ a meaning consistent with the definition in the Electronic Transactions Ordinance.

“Also regarding s. 9(1), there is ambiguity around the words ‘letter, electronic communication or article of any description’.

“A comma after communication would help to eliminate the argument that ‘electronic’ applies to both ‘communication’ and ‘article’.

“Communication by, or via, telephone or mobile device should be expressly articulated in each case.

“The opportunity should be taken to address the legality and admissibility of audio and video recordings of oral communications.”

The AG said that all comments received, whether formally or informally, were put to the consultant legislative drafter and considered.

She noted that in approving the bill’s submission to the House of Assembly, the Cabinet asked that a further attempt be made to obtain comments from the Bar and a further missive was sent.

“Comments are still awaited.”

The attorney general was also quick to point out that similar offences exist around the Caribbean region including in the Cayman Islands, St Lucia, Jamaica and Bermuda.

Likewise, similar offences exist around the Commonwealth including in Australia, India, New Zealand, South Africa, and Canada and the United States.

She said the penalties proposed in the bill are consistent with those in the United Kingdom and are much lower than those that obtain regionally.

“A significant change from the position in England and Wales has been to include judicial officers within the category of persons who may be considered ‘victims’ of these offences.

“However, more extensive protection for judicial officers is contained in section 111 of the Cayman Islands’ Penal Code carrying a maximum penalty of four years there while proposed penalties in the bill range from six months and five years.”

APPLICATION OF THE LAW

She said a communication that is sent has to be more than simply offensive to be contrary to the criminal law.

“Just because the content expressed in the communication is offensive, done in bad taste, controversial or unpopular, or defamatory, this is not a sufficient reason to engage the criminal law.”

She added that the comment of the Lord Chief Justice in the case of Chambers v DPP [2012] EWHC 2157 (Admin) is applicable to the TCI’s legislative context.

“He makes clear that merely rude or unpopular comments do not meet the criminal standard, in relation to section 127 of the Communications Act 2003 UK (clause 10 of the Bill) prohibiting communication that is grossly offensive.

“Satirical, or iconoclastic, or rude comment, the expression of unpopular or unfashionable opinion about serious or trivial matters, banter or humour, even if distasteful to some or painful to those subjected to it should and no doubt will continue at their customary level, quite undiminished by [section 127 of the Communications Act 2003 UK]”.”

NEXT STEPS

Braithwaite-Knowles stated that the democratic process of debate in the House of Assembly allows for policy positions to be explained, the views of the people of the TCI to be expressed, and allows an informed debate on suggested changes that should be made to improve proposals put to the House.

“That is the process invited by the presentation of a bill.

“No bill is perfect and this bill is no exception, but the characterisation of the bill by some members of the public as unprecedented or seeking to undermine freedom of speech are quite wrong and all right-minded persons should correct any such perception and put this back on the right track.”

She said she looks forward to a “vibrant and informed debate” on the issues sought to be addressed by the bill when the House of Assembly convenes on Monday, June 22.