Penal code changes approved

Lawmakers passed wide-ranging amendments to the Penal Code this week.

Among the changes to the law are increases in prison sentences for unlawful assembly, riot and affray and a new power for police to disperse groups of people in certain areas.

It also makes anyone convicted of being a member of a gang liable to a maximum sentence of 20 years in jail and a $500,000 fine.

The Penal Code (Amendment) Bill 2011 creates offences of “causing fear, or provocation of violence”, “harassment”, and “threat to kill” and increases the penalty for “idle and disorderly persons” to a fine of $2,000 and four years in prison.

Leader of the Opposition Alden McLaughlin said the dispersal orders raised concerns about the erosion of civil liberties.

“There is growing concern locally about many of these measures that are being taken because of the seriousness of crime in the jurisdiction and because, quite frankly, of the low level of convictions,” he said.

“All of us want the bad guys to get their just due, but there has to be a certain balance struck as it relates to civil liberties,” Mr. McLaughlin said, adding that he wondered if some of the legislation would “fall foul of the provisions of the Bill of Rights in the Constitution when that comes into effect next year”.

In response, Cayman Islands Attorney General Sam Bulgin said dispersal powers of police were necessary to counter anti-social behaviour by groups who caused problems for law-abiding citizens. Rather than let such behaviour escalate, Mr. Bulgin said, the amended law was a “proactive attempt” to address the problem.

“If a police officer sees youngsters or persons clearly not up to any good, it is quite in order for a police officer to make a judgement call and say ‘you need to disperse’,” he said.

Mr. McLaughlin also asked why the opportunity had not been taken to remove provisions relating to homosexual acts between two consenting adult males in private, as per a 2000 Caribbean Territories (Criminal Law) amendment order by the UK Privy Council in 2000.

“There still remains in the Penal Code a number of purported offences relating to homosexual acts between consenting men,” Mr. McLaughlin said. “I do believe that the opportunity ought to be taken now to bring the legislation in line with the order in council because what we are doing is purporting in the Penal Code to have certain conduct be made criminal while in fact it is not. It is, at the very least, misleading and, at worst, deceptive.”

Mr. Bulgin said that matter would be dealt with as a “law revision exercise”. “We have looked at it and think it’s probably more a matter dealt with, given the obvious sensitivity of the issue, by a law revision exercise rather than by bringing it to the floor of the house to cause any debate on the issue,” he said, adding that those amendments were a formality.

Under the amended law, a person is deemed to be a “rogue and a vagabond” if found by night without any lawful excuse on a closed commercial premises and could face up to three years in prison for a first offence and four years for a subsequent offence.

The revised law also amends the “year and a day” rule, under which, currently, if a person dies a year and a day after receiving an injury caused by another person, the person causing the injury cannot be prosecuted for the death of the victim. This has now been increased to three years.

The amended law also means that being drunk and disorderly could land a person in prison for up to one year or with a fine of $1,000, up from the previous 30 days in custody and a $30 fine. The amended law also introduces a fine for disorderly conduct from $100 to $2,000.

Mr. McLaughlin raised concerns over the increased custodial sentence for being drunk and disorderly, asking “whether the singing of songs loudly after dark whilst walking home from a bar really warrants a sentence of one year imprisonment?”.

Mr. McLaughlin, who was the only elected member of the Legislative Assembly to rise to speak on the bill, also questioned if a vagrant seeking shelter in the outhouse of a commercial property could find himself being defined a vagabond or rogue and facing up to three years in prison, under the amended law.

Mr. Bulgin, who presented the bill to the Legislative Assembly, said the revised sentences and fines were maximum penalties and the courts still had discretion to opt for lower sentences and fines.

“It means a court can still impose a sentence of one day for disorderly conduct … It cannot impose a sentence of more than year. It does not alter the situation much in terms of the flexibility that the court enjoys,” he said.

The amended law redefined the term gang as “any group, association or other body consisting of three or more persons, whether formally or informally organised, having as one of its primary activities the commission of a serious offence; and any or all of the members of which engage in or have, within the preceding three years, engaged in the commission of a series of serious offences”.

The bill was passed in the Legislative Assembly on Monday, 5 December. Amendments to companion legislation, the Criminal Procedure Code, were also passed.

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