One is almost sure to find a melee of spirited Barbadians berating government, and fortifying their resolve for the imposition of harsher punishments, whenever and wherever reports of crime are made in local media. Inconspicuously, our most recent spike in violent crime has exhorted debate of similar regard in society’s every faction; particularly on matters relating to the possession of firearms.
This debate built to a crescendo when Prime Minister Mia Mottley announced parliament’s intention to give credence to this resolve, via an amendment to Barbados’ Firearms Act to provide that mandatory sentences of imprisonment be imposed on those convicted of illegal possession of firearms.
Notwithstanding the absence of the exact provisions of this amendment, PM Mottley stated it is likely to: “Follow that which is being done in the United Kingdom, in Turks and Caicos and in other countries where the sentence of imprisonment for possession of guns will be mandatory, unless there are exceptional circumstances that the judge is satisfied that can be there.” Using this as a framework, I am compelled to engage the inherent legal concerns I have with this intention.
In November 2021, Barbados dispensed with what was its political structure at the time, a Constitutional Monarchy, in favour of a Democratic Republic. This new Republican status was branded a momentous occasion; it was. It signalled our country’s need to remove the psychological appendages to Westminster; to make Barbados our own. It meant that we were to redefine and modernize our social institutions; uprooting them from their colonial inheritance. We were no longer ‘Little England’.
Whilst I understand change takes time, it still appears as if we are “loitering on colonial premises”. Why are we still seeking to mould statutory regimes out of the UK, particularly where local and regional jurisprudence are at variance?
Must we be reminded of Jones v AG where the Bail (Amendment) Act 2019, which barred persons charged with murder or serious firearm offences from applying for bail until 24 months were spent on remand, was struck down? Must we also be reminded of the landmark case Nervais v R which struck down the mandatory death penalty contained in our Offences Against the Persons Act? In both instances, the courts rightfully held the mandatory nature of these provisions unconstitutional as they infringed the Separation of Powers Doctrine inherent in our constitution.
To explain, the Separation of Powers Doctrine is a principle of good governance which ensures the separation of executive, legislative and judicial powers. It seeks to ensure that either body does not exercise more than one of these powers. Sentencing is a judicial function. Therefore parliament, by prescribing a sentence of imprisonment from which a Judge cannot derogate, ipso facto usurps this judicial function. Parliament, through the law, would effectively be exercising the court’s power to sentence; thereby infringing this doctrine. Further, it fetters a Judge’s discretion to individualize sentences to fit the circumstances. Our judges must be able to independently take into account the unique factual matrices of a case when sentencing, if justice is to prevail. For example: how can it be that a man found in possession of a 30-year-old inoperable pipe gun faces the same punishment as a man found with the latest Glock 19?
It may be argued that the consideration of “exceptional circumstances” would allow a Judge to depart from a mandatory sentence of imprisonment; thereby squaring it within the ambit of regional and local jurisprudence. However, if this is the case, would it not render the “mandatory” optional; thereby defeating the intention of the proposed amendment? Further, would it not render any such amendment redundant? The seminal case of Jerome Bovell v R already provides sentencing guidelines for firearm offences; particularly the relevant considerations to be had when mitigating a sentence. Our Penal System Reform Act provides similarly, albeit more generally. For clarity, mitigation refers to circumstances within a case which may allow a judge to reduce and tailor a sentence to a particular set of facts.
Interestingly, however, although The Turks and Caicos Islands maintain mandatory imprisonment for those convicted of unlawful possession, the UK has since departed from this position. In 2021, they issued a comprehensive set of new guidelines for sentencing offenders convicted of firearms offences. They prescribe varying penalties, having regard to the offender’s culpability and the risk of harm, ranging from imprisonment to community service. This progressive legislative reform does not usurp the discretion of the judiciary; it does not try to ‘fit all with one shoe’. Rather, it seeks to provide a proportional framework in which a Judge’s discretion may be exercised. This, in my view, is permissible.
Parliament’s hasty intent to re-inherit Britain’s legislative ideology did not allow it to realize that they have departed from such an unintuitive approach to punishment. Perhaps, they too understand the inherent constitutional dangers of mandating punishment. Unfortunately, our legislature has yet to realize. Even Bermuda, a British Overseas Territory, has held mandatory minimum sentences for imprisonment unconstitutional as they oust the discretion of the sentencing court.
The unfortunate reality is this: the quality of evidence used to prosecute offences in Barbados has not caught up to global standards. To this day, the preeminent form of evidence used at trial is witness statements. Particularly as it relates to firearm offences, no fingerprint taking or DNA matching is done. The jury is often left to decide from a “he-say-she-say-police-say” which inherently jeopardizes the safety of any verdict. How many persons abroad have we seen had their records expunged after it was found that witnesses either lied or that their statements were proven inconsistent with scientific evidence, such as DNA matching, succeeding trial? I am therefore not convinced that the current quality of accepted evidence equitably lends to a mandatory sentence of imprisonment for convicted firearm offenders.
Down to Brasstacks
The prevalence of gun crime in this country concerns me, as it concerns many Barbadians. However, we tend to treat crime as an anomaly when, in fact, it is endemic. Crime cannot be solved; its occurences may only be reduced. In saying this, I recall the words of philosopher George Santayana: “Those who cannot remember the past are condemned to repeat it.” We cannot continue to employ heavy-handed, reactionary and draconian policies as means of combatting crime; particularly where they fly in the face of judicial pronouncements. History has shown us this does not work. We must reimagine our approach to fighting crime, firstly, by addressing the systemic issues which have led us back to where we are now.
Tyrique Wilson is a third-year law student at the University of the West Indies Cave Hill Campus.