XN000022-1991-12-18 — Page 4

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WEDNESDAY, DECEMBER 18, 1991

HE SAID NO VIEW HAD BEEN FORMED ON THESE CONCERNS, WHICH WERE IN RELATION TO CLAUSES 3, 4, 5 AND 32.

MANY OF THE COMMENTS RECEIVED DURING THE CONSULTATION PERIOD FOR THE BILL CONCERNED CLAUSE 5 DEALING WITH REPEATED COMMISSION OF ORGANISED CRIME OFFENCES.

THERE WERE CRITICISMS THAT A CHARGE UNDER THIS CLAUSE COULD BE BASED IN PART ON OFFENCES WHICH THE DEFENDANT COMMITTED BEFORE THE EFFECTIVE DATE OF THE LEGISLATION.

"FOR THE BILL TO HAVE AN IMMEDIATE DETERRENT EFFECT UPON ENACTMENT, MR MATHEWS SAID, "WE BELIEVE IT IS ESSENTIAL THAT EVIDENCE OF CRIMES COMMITTED BEFORE THE COMMENCEMENT OF THE ORDINANCE SHOULD BE ADMISSIBLE AT TRIAL.

ON CONCERNS ABOUT THE RETROSPECTIVE ELEMENT IN SOME PROVISIONS OF THE BILL, MR MATHEWS POINTED OUT THAT A LAW WAS NOT RETROSPECTIVE MERELY BECAUSE IT HAD REGARDS TO EVENTS WHICH OCCURRED PRIOR TO THE MAKING OF THAT LAW.

"RETROSPECTIVITY, IN THE LEGAL SENSE, MEANS IN EFFECT BACKDATING A CHANGE IN THE LAW SO THAT THE LEGAL RULES APPLICABLE CERTAIN EVENTS ARE CHANGED AFTER THE EVENTS HAD OCCURRED.

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"THIS CONCEPT IS REFLECTED IN THE INTERNATIONAL COVENANT WHICH PROHIBITS A PERSON BEING CONVICTED OF A CRIMINAL OFFENCE ON ACCOUNT OF ANY ACT WHICH DID NOT CONSTITUTE AN OFFENCE WHEN IT WAS COMMITTED.

"THE GOVERNMENT ALSO PROHIBITS A PERSON, WHEN BEING DEALT FOR AN OFFENCE, FROM RECEIVING A HEAVIER PENALTY THAN THE ONE WAS APPLICABLE WHEN THE OFFENCE WAS COMMITTED.

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"WE BELIEVE THAT THE BILL IS GENERALLY CONSISTENT WITH PRINCIPLES. BUT I HAVE HEARD CRITICISMS THAT HAVE BEEN VOICED THIS AFTERNOON BY COMMENTATORS AND I AM LOOKING AT IT AGAIN, MR MATHEWS SAID.

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ANOTHER CRITICISM THAT HAD BEEN RAISED WAS THAT CLAUSES 3, 4 AND 5, TO THE EXTENT THAT THEY WOULD RELY ON OFFENCES OF WHICH A DEFENDANT HAD ALREADY BEEN CONVICTED, MIGHT VIOLATE THE COVENANT PROHIBITION AGAINST DOUBLE JEOPARDY AND DOUBLE PUNISHMENT.

"OUR PRESENT VIEW IS THAT THIS IS NOT THE CASE BUT ONCE AGAIN WE SHALL GIVE THIS ASPECT CLOSE AND ANXIOUS CONSIDERATION," HE SAID.

"CLAUSE 33, WHICH CONTAINED A PRESUMPTION AS TO AN ORGANISED CRIME GROUP, DREW MANY COMMENTS.

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"THIS CLAUSE WAS CONSIDERED TO BE IN ORDER WHEN WE PUBLISHED THE WHITE BILL FOR CONSULTATION IN AUGUST THIS YEAR.

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HOWEVER, HE SAID, AS A RESULT OF A RECENT COURT OF APPEAL RULING, IT HAD BECOME CLEAR THAT THIS CLAUSE, IN ITS PRESENT FORM, WOULD NOT SURVIVE A CHALLENGE BASED ON ARTICLE VII OF THE LETTERS PATENT, WHICH REQUIRED CONSISTENCY WITH THE INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS.

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