GRAND TURK, Turks and Caicos Islands
PUBLIC ORDER AND CRIMINAL JUSTICE BILL 2020
There is much public commentary on the Public Order and Criminal Justice Bill 2020 which is before the House of Assembly and will be introduced for debate on 22nd June 2020. The public commentary would benefit from more information on the Bill, how it came about and what it seeks to do. 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 did the Bill arise? – The Public Order and Criminal Justice Bill 2020 was drafted by an external consultant drafter (former Attorney General in a Caribbean Overseas territory) as part of a project to address issues flagged by the Royal Turks and Caicos Islands’ Police Force to reform areas of criminal law in the Turks and Caicos Islands to aid in policing. The project covers 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.
Who were consulted? – On 15th May 2020 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 Turks and Caicos Islands 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 (25th May 2020), 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”. 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 4 and 5, of the draft; did the framers of the draft intend for the term “harassment” to encompass instances of stalking of unmarried persons?” 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)”. 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 18th May 2020. In those informal comments, that attorney referenced the following preliminary points –
“• Unlike every other ordinance in T&C, 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 9 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.”
All comments received, whether formally or informally were put to the consultant Legislative drafter and considered. 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.
What does the Bill do? – This Bill seeks to introduce a range of new provisions relating to public order, offensive messages and telephone calls, and measures to protect witnesses, jurors and judicial officers from intimidation and harm such as:
- using or threatening unlawful violence (an affray);
- using threatening, abusive or insulting words or behaviour, with intent to cause that person to believe that immediate unlawful violence will be used against him or another by any person, or to provoke the immediate use of unlawful violence by that person or another (fear or provocation of violence);
- using threatening, abusive or insulting words or behaviour, or disorderly behaviour, causing harassment, alarm or distress (intentional harassment, alarm or distress);
- sending a letter, electronic communication or article of any description which conveys—
(i) a message which is indecent or grossly offensive;
(ii) a threat; or
(iii) information which is false and known or believed to be false by the sender.
- Sending, by means of a public telecommunication system, a message or other matter that is grossly offensive or of an indecent, obscene or menacing character (improper use of public telecommunication system)
The clauses in the Bill are drawn from laws that are well-established in England and Wales, modified to meet the circumstances in the Islands. The sources are:
- The Public Order Act 1986 (“the POA”)
- The Malicious Communications Act 1988 (“the MCA”)
- The Telecommunications Act 1984(“the TCA”)
- The Criminal Justice and Public Order Act 1994 (“the CJPOA”)
- The Communications Act 2003 (“the CA”)
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. The penalties proposed in the Bill are consistent with those in the United Kingdom and are much lower than those that obtain regionally.
Part II contains the public order offences. These largely mirror the provisions contained within sections 1 to 8 of the most up to date version of the UK Public Order Act and is consistent with regional comparisons. Examples: (1) The offence of Affray (clause 2) is verbatim section 86 of the Cayman Islands’ Penal Code save that the penalty proposed is a maximum of 3 years whilst in the Cayman Islands the maximum penalty is 4 years. (2) The offence of Causing fear or provocation of violence through insulting words or behaviour (clause 3) is verbatim section 88 in the Cayman Islands’ Penal Code with a maximum penalty of 4 years whilst in the Bill the same offence has a maximum penalty of 6 months. (3) The same can be said of the offence of Causing intentional harassment, alarm or distress (clause 4) (section 88A of the Cayman Islands Penal Code) and the offence of Harassment, alarm or distress (clause 5) (section 88B of the Cayman Islands’ Penal Code – all offences with a maximum penalty of 4 years in the Cayman Islands and proposed with a maximum penalty of 6 months in the Bill. The proposed offence at clause 5 of the Bill already exists in section 9(b) of the Summary Offences Ordinance but if reformed by the proposal in the Bill.
Part III contains the basis of section 1 of the MCA (at clause 9) and section 43 of the TCA and section 127 of the CA (at clause 10). The similar offence to the proposed Improper use of public telecommunication system (clause 10) is found in section 9 of the Jamaica Cybercrimes Act 2015 which criminalises a person’s use of a computer to send to another person any data (whether in the form of a message or otherwise) that is obscene, constitutes a threat, or is menacing in nature; and intends to cause, or is reckless as to whether the sending of the data causes, annoyance, inconvenience, distress, or anxiety, to that person or any other person.
Part IV contains Clauses 11 to 14, modelled on section 51 of the CJPOA. This lengthy section has been split into separate clauses to make the provisions easier to understand and follow. 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 4 years there while proposed penalties in the Bill range from 6 months and 5 years.
How have similar provisions been applied elsewhere? – 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. The comment of the Lord Chief Justice in the case of Chambers v DPP  EWHC 2157 (Admin) is applicable to our 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 –The democratic process of debate in the House of Assembly allows for policy positions to be explained, the views of the people of the Turks and Caicos Islands 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 characterization 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. The bill is currently before the House of Assembly and set to be introduced on 22nd June 2020. I look forward to a vibrant and informed debate on the issues sought to be addressed by the Bill.
Rhondalee Braithwaite Knowles OBE QC
Hon. Attorney General