Sunday, August 10, 2008

Bills tabled for plea bargaining, wire tapping

Bills tabled for plea bargaining, wire tapping
Stabroek News. Posted By Staff On August 8, 2008 @ 5:13 am In News | No Comments

Five bills to sharpen the crime fight and speed the dispensing of justice were tabled in Parliament yesterday covering plea bargaining, paper committals at preliminary inquiries, taking of audio visual evidence, wiretapping and requiring the logging of information on SIM-cards and mobile phone sales.

They are expected to come up shortly for debate.

The Criminal Procedure (Plea Bargaining and Plea Agreement) Bill 2008 makes arrangements for the Director of Public Prosecutions (DPP) or any prosecutor, police prosecutor or attorney authorized by the DPP and the accused to enter into a plea agreement.

The explanatory memorandum of the bill says the proposed law “seeks to reward a person who has entered into a plea agreement and is cooperating with law enforcement authorities or whose cooperation is beneficial to the administration of criminal justice.”

Clause 5 of the bill says that a prosecutor who improperly induces an accused person to participate in plea bargaining is liable on summary conviction to a fine of $25,000 and imprisonment of five years.

Clause 8 says that a prosecutor shall obtain the views of the victim or a relative of the victim before concluding the plea bargaining unless the circumstances make it impracticable to do so.

Clause 17 states that a judge or magistrate may reject a plea agreement if he/she considers it is not in the interest of justice. Legal aid may also be granted to an accused in relation to the conduct of plea bargaining.

Paper committals

If the Criminal Law (Procedure) (Amendment) Bill 2008 is passed it will formalize so-called paper committals of accused for High Court trials instead of awaiting the end of a preliminary inquiry (PI).

Clause 2 of the bill says that the magistrate presiding over a PI “may admit as evidence on the part of the prosecutor any statements, documents, writings and other articles tendered to the court in the absence of the witness”. Sub-section two says that if the magistrate is of the view that the evidence so tendered presents an adequate case he/she may commit the accused person for trial. If the evidence does not constitute a prima facie case the accused can be discharged.

The explanatory memorandum for this bill stated: “Two purposes can be fulfilled by paper committal using …written statements instead of oral testimony alone. These statements may be employed as a means of making the committal procedure more efficient (and) for the witness, need to attend and recite his evidence is obviated and the court’s time is saved”. It added that the “use of written statements can remove from the court the task of examining the sufficiency of the evidence and thus create a mechanism which in effect, replaces the committal hearing”.

Under the Evidence (Amend-ment) Bill 2008, provisions would be made for enabling the appearance of detainees before court for obtaining bail etc from the place of detention by audio visual link.

The explanatory memorandum stated that “owing to practical difficulties, procedural requirements, lack of adequate time and heavy volume of work in courts, frequent adjournments and various other compelling reasons there has been a considerable delay and arrears in courts needing urgent attention of the government” hence the audio visual move to lessen delay and cost and “make available less expensive and speedy justice to the common man”.

It also added the use of audio visual technology would lower the security risks involved of transporting and holding in custody the persons who would be required to testify. The technology would also be used for identification parades.


The Interception of Communications Bill 2008 would likely raise some civil liberties concerns and encompasses internet traffic.

The bill says at clause 2 that “intercept” for the purposes of telecommunication covers “monitoring of transmissions made by fibre optic cable or any other forms of wire line, by wireless telegraphy, voice over internet protocol, internet and all other forms of electromagnetic communication to or from the apparatus comprising the systems”.

For intercept permission to be granted, an authorized officer may apply ex parte to a judge in chambers for a warrant. Clause 4 (2) says the application for a warrant has to be accompanied by an affidavit deposing the facts or allegations necessitating the application, sufficient information for the judge to issue a warrant and other information.

The warrant under clause 5 shall authorize the tapping of communication transmitted from a private or public system to/or from one or more addresses listed in the warrant. Addresses as defined by the bill include “a location, email address, telephone number or other number or designation used for the purpose of identifying telecommunications systems or apparatus”.

A warrant can be issued for a period not exceeding 90 days and may be renewed. Where a judge is satisfied that the urgency of the circumstances warrant it he may do away with the requirement for a written application and proceed to hear an oral application which he/she may grant.

Once a warrant is issued under this section a written application and affidavit would have to be provided within 72 hours of the issuing of the warrant.

The bill would also permit as directed by the minister responsible for national security the disclosure of the intercept to a foreign government or agency of such government where there exists an agreement for the mutual exchange of information.

The unauthorized disclosure of intercepted information can lead to a fine not exceeding $5M and imprisonment for a term not exceeding three years.

The Telecommunications (Amen-dment) Bill 2008 would require providers of SIM-cards and cellular phones to establish at their own cost a system of recording and storing particulars of its SIM-cards and mobile cellular phones and the customers utilizing them.

The explanatory memorandum of the bill said that “it has been observed that mobile cellular phones are frequently used to facilitate planning and commission of serious crimes.

Also, there has been a spate of thefts of mobile devices by unscrupulous persons. In order to track these sources in the investigation by the police, the identification of the persons in possession of the cellular devices is very vital”.

A customer who sells or otherwise transfers a mobile cellular phone or SIM-card to any person other than a family member residing with him/her must convey this information to the service provider. In the case of theft or loss of a SIM-Card or cell phone the matter should be reported to the police and the service provider.

From the date of the commencement of the law there will be a 12-month period for the service provider to log and store the required information. Clause 2 (d) of the bill says the information that would have to be recorded by the service provider includes details of transactions of persons calling and persons receiving calls and the time and duration of calls.

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