ODPP wants High Court cybercrime cases tried without a jury

THE Office of the Director of Public Prosecutions (ODPP) has called for cybercrime cases in the High Court to be tried without a jury, despite noting concerns among the legal fraternity about the increasing number of matters that are being assigned to bench trials.

Deputy DPP Andrea Martin-Swaby said with the law already providing for cyber cases in the parish courts to be tried by judges alone, there is no reason for the same not to obtain in the High Court as well.

“I’ve heard this argument being raised in legal circles that there is a belief that slowly, we are reducing the number of matters that are tried by judge and jury and there is almost a concern about that. But in respect of the cybercrime matters presently, a parish judge sitting alone can adjudicate, so what justification in law would there be to say that a High Court judge sitting alone cannot deliberate or adjudicate over a cyber matter?” she asked at a meeting of the joint select committee examining at the Cybercrimes Act (2015) last Thursday.

She argued that if serious offences such as Gun Court crimes, lottery scamming, human trafficking and murders are tried without jury, so can cybercrime offences.

“I think the only apprehension from the [Jamaican] Bar Association is, you’ve allowed for the human trafficking to be judge alone, for lottery scamming to be judge lone, and now you’re inching into cyber [crimes], and that slowly jurors are being used less in the judicial system,” the deputy DPP stated.

Attorney-at-law and Member of Parliament for St Elizabeth South Western Floyd Green said he understood the position, based on the technicality of cybercrime cases, but was wary of normalising bench trials in the High Court.

“The solution may mean we should look at removing the power of a parish court judge being able to treat with these matters [alone],” he suggested.

Green said judge-alone trials in the High Court are of particular concern, especially when an argument is also being made for increasing penalties.

Martin-Swaby noted that currently, in certain matters such as lottery scamming, which are tried by judge alone in the High Court, whenever these cases include cyber offences the cyber offence is tacked on in order to “piggy back” on a judge alone trial.

“It’s a strategy [used] because what the law allows is that we can try a jury matter with the judge alone, depending on how it is done. We can benefit on the strength of the judge alone [matter]. So the lottery scamming is judge alone [trial], and cyber needs a jury, but we can add cyber to the law reform indictment,” Martin-Swaby stressed.

She also pointed to the backlog already facing parish courts, and the low disposal rate of cybercrime cases.

In 2017 about 97 new cases were brought before the court but only 23 were disposed of, while in 2018 there were 75 matters, 10 of which were disposed of. Seventy-five new cases were disposed of in 2019 out of the cases which were brought forward from the previous year in addition to 39 new cases. And in 2020, 103 cases were disposed of out of the 83 new cases, in addition to those carried over from 2019.

Unauthorised access to computer data and use of computers for malicious communication made up the bulk of the cybercrime offences brought before the court.

Policy director for cyber intelligence and incident response in the national security ministry, Michael Morgan, told the committee that cybercrime has increased significantly around the world during the novel coronavirus pandemic, impacting areas such as food production, health and insurance services and the energy sector.

“Not all cases actually make it to court based on either the quality of the information, or perhaps the report may just not substantiate the offence,” Morgan said.

He said that compared with global standards, local legislation does not provide for new forms of cybercrime, such as cyberterrorism and phishing.

“So, we weren’t really able to get a true picture of what’s happening within the context of cybercrimes within our local context, against global trends,” he said, adding that the ministry is targeting this gap in the medium term.

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