The Tribune

By RASHAD ROLLE

Tribune Staff Reporter

rrolle@tribunemedia.net

A JAMAICAN Queen's counsel has criticised the Interception of Communications Bill for allowing the attorney general's involvement in the process of obtaining warrants for intercepting a person's communications.

Michael Hylton, a former solicitor general in Jamaica, spoke Monday night at a forum at the University of the Bahamas alongside State Minister for Legal Affairs Elsworth Johnson, Attorney Wayne Munroe, QC, and Maurice Glinton, QC, among others.

Mr Hylton, QC, did not strongly criticise the bill but he said its provision mandating the commissioner of police seek permission from the attorney general before asking a court to grant a warrant for intercepting a person's communications is out of step with other legislation in the region.

Attorneys general are political appointees who sit in Cabinet. As an example of how their involvement could present a problem, Mr Hylton said: (A few years ago in Jamaica) "authorities were investigating an alleged drug dealer alleging to have close connections with the government. I'm not suggesting there was an interception issue there but if there was and if the commissioner was contacted by his US counterparts and asked to make such application on interception, would he then go to the attorney general and say, 'we need to do this?' It would put the commissioner in an impossible condition. I think it is undesirable for the legislation to have that requirement."

Involving the attorney general in such a process is a carryover from the regime existent under the Listening Devices Act, Mr Hylton explained, as the Privy Council has found the attorney general plays an important oversight function where court warrants are not necessary to intercept a person's communication.

But because the purpose of the proposed Interception of Communications Bill is to rely on court orders, Mr Hylton said the attorney general's role is redundant and counterproductive.

Warrant

He also noted that since most police commissioners are not trained lawyers, they seek the expertise of the Office of the Attorney General when pursuing an interception warrant. This country must ensure safeguards are in place so this process does not result in the political directorate becoming aware of interception applications, he said.

"Information needs to be kept in a narrow field," he said.

The lawyer was also critical of the broad categories under which a person's communications could be intercepted under the bill. Noting such legislation often ensures the most minimal intrusion possible, he questioned why the bill allows interception not only in the interest of public safety or security, but on the grounds of "public order," "public morality" and "public health" as well.

These are "vague and possibly subjective" categories, he said.

"We can have many debates as to what constitutes public morality and to what justifies an interception to contest public morality."

Mr Hylton also said unlike some other countries, the Bahamas' bill does not mandate that annual reports be submitted to the public about the interception system. Reports help legislators refine the system, he said. Trinidad's law requires annual reports.

"In the UK," he added, "the secretary of state issues warrants but a high court judge oversees the carrying out of the function and that high court judge can require documents, can ask questions, can generally see how the process is working. That judge must prepare a report, send a report to the prime minister and the prime minister must lay it in Parliament."

The Interception of Communications Bill would also let police obtain entry warrants, allowing them to enter homes and businesses and seize communications or install interception devices within them.

Mr Hylton could not speak on this because he said no legislation he has reviewed contains this provision.

"That doesn't say it's wrong," he said. "I think that it requires a closer look because it is a great intrusion."

Jamaica enacted their Interception of Communications Act in 2002.

Consultation

The Minnis administration has promised an extensive period of consultation before the Bahamas does the same. Mr Hylton emphasised such legislation does not permit interception to take place, rather just regulates it.

"This type of legislation does not really allow interception," he said. "In the absence of legislation, interception takes place. States and private individuals have the technology to intercept communications. They do so without the public's knowledge, they do so without oversight, they do so without regulation and it is not illegal. What this type of legislation does in my view is regulates it. It says you can do it but with certain controls. It's necessary for that reason."