Legislation enabling drug samples and photographs of evidence to be received as evidence of large exhibits in court proceedings, was passed in the House of Representatives on December 8.
The Bills – Dangerous Drugs (Amendment) Bill, 2020 and the Evidence (Amendment) Bill, 2020 – were piloted by Minister of Justice, Hon. Delroy Chuck.
Mr. Chuck said the Dangerous Drugs Act is being amended to provide for the secured storage of drugs seized under the Act and allow for drugs seized to be destroyed, and in any case where such drugs are required as evidence, for samples and images of the drugs to be taken before the drugs are destroyed, and for those samples and images to be received in evidence and have the same probative force as the drugs would have if proved in the ordinary way.
The Minister said the Evidence Act is being amended to provide that in any case where a thing is seized as evidence, a sample or image of the thing may be taken by or under the direction of a constable; and for the sample or image so taken to be received in evidence and have the same probative force as the thing would have, if proved in the ordinary way.
“The Cabinet, in 2016, reviewed a Submission to give effect to the abovementioned amendments. Upon Cabinet’s approval, the Bills were drafted by the Office of the Parliamentary Counsel and submitted to the Legislation Committee for review. The Committee approved the Bills for submission to the Houses of Parliament,” Mr. Chuck said.
“The amendments seek to give better legal effect to and improve upon the 1996 Guidelines, termed Practice Directions, issued by the then Director of Public Prosecutions (DPP) in relation to the handling of “large drug evidence”, he added.
He said these Practice Directions have been adopted by the Jamaica Constabulary Force and included in their Force Orders. He added that they speak to the manner in which the investigating officer should deal with the seizure of any drug to which the Dangerous Drugs Act applies.
“The underlying principle of the Practice Directions is that where drugs are seized in a criminal matter, the drugs are to be kept in proper custody and produced for trial. Where the drugs seized consist of packages, it is sufficient for evidentiary purposes for all packages to be photographed and samples taken from each by the Government Analyst, and a representative sample from each package kept for evidentiary purposes,” Mr. Chuck said.
The Minister said in cases where drugs are seized “without any warrant being made, or where the likelihood of an arrest seems remote,” the evidence is to be preserved, samples are to be taken by the Government Analyst and the seizure photographed. Only in these instances would the drugs be destroyed thereafter.
“The Practice Directions require that immediately following an acquittal, conviction or an appeal against conviction, it is at that time that the remaining portion of the drugs are to be destroyed. In the interim, the investigating officer has the duty to ensure the safe custody of the drugs,” Mr. Chuck said.
Under the Practice Directions, once an arrest has been made, the police are required to secure and retain the total seizure for trial.
The Minister said this is where there is an issue, as this requirement has given rise to serious concerns regarding the adequate storage and security of these drugs while in police custody.
“There is the risk that the drugs may end up back in the illicit drug trade, or that the evidence becomes compromised in a manner that impairs the chances of securing a conviction,” Mr. Chuck said.
He noted that it is on this basis that the United Nations Convention Against the Illicit Traffic in Narcotic Drugs and Psychotropic Substances (1998) recommended that parties enact domestic legislation to allow for early destruction or lawful disposal of such substances that have been seized or confiscated, and for the admissibility of duly certified quantities of such substances.
“If we are serious about improving our justice system, we must seize every opportunity to make the changes necessary to contribute to the desired improvements. The amendments will, therefore, bring greater integrity and scrutiny to the process, including clarification of the chain of custody,” the Minister said.
In 2003, the Attorney General’s Chambers recommended that the 1996 Practice Directions should be in the form of legislation, that they be codified, rather than a DPP Guideline, as while they were practical and appropriate they did not have the force of law.
The Attorney General’s Chambers also noted that the Practice Directions were mere guidelines for the police and the prosecution and could not guarantee acceptance by the defence.
“The amendments will expand the 1996 Practice Directions and codify and put them into law. They will allow for the court to order the destruction of seized drugs, generally, provided that appropriate samples of the drugs have been taken safely and are adequately secured,” Mr. Chuck said.
“The amendments will also allow for samples of drugs to be admitted into evidence, as well as photographs, videotapes, compact disks, laboratory analysis certificates or such other means which can be used to verify and document the identity and quantity of the drugs and substances seized by the police,” he added.
He further noted that “all of these would be deemed admissible in court proceedings as if the total quantity seized has been admitted into evidence”.