Fake gun flaw

Changing Jamaica’s gun law to provide lesser penalties for possession of an imitation firearm is not enough if the “fundamental flaw” of possibly criminalising citizens for an object that cannot discharge a projectile is not addressed, a criminal defence attorney has asserted.

Minister of National Security and Peace Dr Horace Chang announced in Parliament on Tuesday that new amendments to the Firearms (Prohibition, Restriction and Regulation) Act, 2022 will be tabled “in short order”.

He explained during a post-Cabinet press conference, at Jamaica House in St Andrew yesterday, that the “primary issue” to be addressed by the amendments is that genuine and imitation guns are treated the same way under the existing law.

Under the Firearms (Prohibition, Restriction and Regulation) Act, 2022, possession of a fake or imitation firearm carries the same mandatory 15-year prison sentence as having possession of a real firearm.

The law defines an imitation firearm broadly to include anything that has the appearance of a gun, regardless of whether it can discharge a bullet.

Chang, who is also deputy prime minister, later indicated to The Gleaner that the thinking is to relocate the offence of possession of an imitation firearm to another section of the legislation where it would attract a lesser sanction.

He declined to comment further, saying the details are still being worked out.

The minister of national security and peace acknowledged that the change was requested by Prime Minister Dr Andrew Holness, in response to concerns raised by the legal fraternity.

However, for well-known criminal defence attorney Kymberli Whittaker, it is not enough to amend the law, while leaving in place the potential criminalisation of citizens for possession of an imitation gun.

Whittaker conceded, too, that the desire to remove items that ‘look like guns’ from public spaces may have been motivated by legitimate public safety concerns, but said legislation grounded in appearance rather than function risks “over breadth”.

Noting that imitation guns are sometimes used as props in film and theatre, Whittaker argued that the law must clearly distinguish between genuine threats and harmless objects, ensuring that citizens are not subjected to harsh penalties for conduct that poses no real danger to public safety.

“A toy or imitation firearm, by its very nature, is not a weapon if it cannot fire, and it should not attract the same legal consequences as a real firearm,” she said, making reference to the criminal record that follows a conviction.

“To do so offends principles of proportionality and fairness,” she added.

Chang, citing Jamaica’s murder rate when the firearms law was enacted in 2022, said the mood in the society at the time was “anything that looks like a gun must be out of the space”.

He acknowledged, however, that “sometimes circumstances change quite dramatically and you have to go back and revise the law”.

“There are a couple of things in there we have to change and that’s what we are doing. It’s not a major change.”

livern.barrett@gleanerjm.com