Sayeed Bernard | Rethink mandatory minimum for imitation firearms

Jamaica’s crime problem demands strength. We all want a justice system that strikes fear into the hearts of those who threaten our citizens. But strength without fairness becomes punishment for punishment’s sake. This is where our firearm legislation has stepped out of bounds.

Under the Firearms (Prohibition, Restriction and Regulation) Act of 2022, possession of an imitation firearm carries a mandatory minimum sentence of fifteen years. Judges have no discretion. Once convicted, there is no space to weigh circumstances, intent, or proportionality.

Certainly, people want tough penalties for gun crime. They are tired of living under siege. But what happens when the law meant to protect the innocent starts punishing them too?

Hypothetically, if a person, if they unknowingly are in possession of an imitation firearm, and during a random stop, the police find it and arrest them for possession of a prohibited weapon.

The person has no prior record, no intent to harm or no plan to intimidate. Yet under the mandatory minimum they face 15 years in prison. Their livelihood disappears, their children’s future collapses. and lives are destroyed.

A law that imposes the same punishment in every case strips judges of their function. Judges are meant to interpret facts, weigh intent, and consider context. When Parliament removes that discretion, it reduces them to calculators and leaves fairness becomes collateral damage in the war on crime.

DOES NOT DEFINE

Even more troubling is that the Act does not define imitation firearms. Police officers can arrest and charge individuals in situations that never merited criminal liability in the first place. Without a definition, the line between a harmless toy and something capable of causing fear becomes guesswork. That is an invitation to inconsistency, overreach, and abuse. Jamaica must amend the law to clearly define imitation firearms so that citizens, law enforcement, and the courts know exactly what conduct is being criminalised.

The United Kingdom offers a model worth adopting. Under the Violent Crime Reduction Act, only realistic imitation firearms are prohibited. A realistic imitation firearm is one that looks so much like the real thing that an ordinary person could mistake it for a genuine weapon. Items whose colour, shape, or size make them clearly fake do not qualify.

The UK framework works. Crown Prosecution Service guidance confirms that charges only proceed where the item could reasonably be perceived as real. Police forces report fewer unnecessary seizures of toys and more targeted enforcement against replicas used in robberies, a major source of imitation firearm crime in cities like London and Manchester. By narrowing the definition to items that genuinely create fear, the law directs officers toward real threats and avoids wasteful or unfair prosecutions.

Importantly, this does not undermine the Jamaican Government’s goals. National Security Minister Dr. Horace Chang has repeatedly said that the Act is intended to confront illegal firearms and to ensure strong penalties for weapons outside the regulatory system. He has emphasised the need for real disincentives. Limiting the offence to realistic imitation firearms strengthens that objective. It separates harmless objects from replicas that facilitate intimidation and violence. It ensures that the law punishes the people it is meant to punish, rather than citizens who unknowingly come into contact with items that pose no danger.

CLEAR STANDARD

The UK’s approach gives courts a clear standard for determining whether an object is actually threatening. It captures real risk and avoids criminalising the innocent. Jamaica should adopt the same balance. We can deter misuse without sweeping innocent people into the justice system.

Some may argue that the mandatory minimum can be softened by the section 42(K) certificate, which allows a judge to signal to the Court of Appeal that the minimum sentence may be excessive. In practice, that offers little protection to working-class citizens. Few can afford the legal fees or withstand the years spent waiting on an appeal while their loved one sits in prison. Section 42K protects those with means, not necessarily the average Jamaican.

When laws ignore the lives of the people they affect, justice becomes an illusion. We cannot demand fairness while creating laws that make fairness impossible.

Judicial discretion should be restored so sentences reflect the facts. There should be clear definition of what realistic imitation firearm is, so the law punishes what is dangerous.

We must remain tough. Violence demands no less. But toughness cannot eclipse fairness. Inflexible laws risk creating new victims, not through crime, but through the justice system itself.

Justice must have a heart, even when it has a spine.

Sayeed Bernard is an attorney-at-law and Chevening Scholar. Send feedback to sayeedbernard.legal@gmail.com and columns@gleanerjm.com