From Derek Bernard.
MAY I draw attention to one particular piece of data disclosed in the JEP article headlined ‘Arms and the Island’ of 11 September?
It stated that there had been 29 firearm licensing offences since 2006. These offences do not involve an anti-social act of any sort, either directly or indirectly, much less threats or violence. Such prosecutions relate entirely to perceived or actual failings to comply with one or other of the multitude of technical procedures in the Jersey firearms law – itself based on failed and failing English laws.
One of the oldest and finest concepts underlying centuries of Jersey (and British) criminal law is that of mens rea – the need to establish criminal intent in order to convict. In recent times, however, there has been a strong growth in the number of statutory offences that require no evidence of criminal intent (that is, strict liability).
But just because the offences are ‘technical’, no one should be in any doubt about the consequences for the individual prosecuted. Not only are large amounts of public resource – honorary and States police time, court resources and prosecuting counsel’s time – consumed in the activity, but the individuals being prosecuted find themselves in an extraordinarily frightening, complex and expensive process that can dominate their life for many months and leave them with severe penalties and crushing bills, as well as an understandable perception that our legal system has little or nothing to do with reason or justice.
In one recent case, probably not included in the 29 offences referred to, the prosecution was dropped after about a year of severe pressure on the individual. During that time the prosecution repeatedly changed the list of charges, usually just before a hearing, thus forcing the individual to spend more than £30,000 on preparing a series of new defences.
Although none of the proposed charges had any sustainable validity or substance, the individual was put through huge strain and expense for over 12 months. To the government £30,000, or even a great deal more, is of no consequence at all, as the taxpayer, like it or not, will provide. But to most individuals, especially those who are retired or on low incomes, it is a huge sum.
When, over many years, a law’s only effect is to generate police, prosecution and court activity, despite the absence of either direct or consequential actual or intended harm to anyone, is it not time to amend the law? Could mens rea come to the rescue?
Could the firearms law be prefaced with a requirement that evidence is required of actual harm to another, or an intent to harm or frighten another, before any prosecutions for statutory offences could be brought?
The gain, in terms of both public and private resources, as well as emotional strain on individuals, would be immense.
Châlet Abaco,
Green Road,
St Clement.
