Exclusive: To be busted or cautioned?

Getting caught in possession of a small stash of marijuana just got more complicated.

Discretion on whether to caution or prosecute appears to have been handed back to police officers.

New legal guidelines for minor offences will cause “inconsistency and unfairness”, according to the Centre for Justice.

The independent body says the Department of Public Prosecution’s new guidance on Section 36 of the Police and Criminal Evidence Act (PACE) leaves too much discretion to police officers.

The Centre’s Managing Director, Venous Memari, also questioned why a raft of offences contained in the 2010 guidelines, such as possessing a small quantity of marijuana for personal use, have been removed from the 2013 guidelines.

The old guidelines were based on a gravity matrix where an offence was given a score that was increased or decreased depending on specified aggravating and mitigating factors.

A decision on whether to prosecute or caution depended on whether the final score was higher or lower than the pre-determined threshold score. But new guidelines issued by the DPP have done away with the ‘gravity score’. Several offences have also been removed from the new guidelines.

Ms Memari told the Bermuda Sun: “It now seems the determination of whether to prosecute or caution someone will be at the discretion of an officer for those offences included in the guidance. There is no gravity scale as there was before. There will be inconsistencies because we do not have an objective criteria for determining when a person should be prosecuted and when they should be cautioned for offences contained in the guidance.

“Certain offences that were in the old guidelines like possessing small amounts of cannabis for personal use and theft are no longer in the new guidelines.

“We do not know why these changes have been made or who has been consulted on the changes, despite asking the DPP.”

Section 36 of PACE is designed to stop the courts becoming clogged up by too many ‘minor’ cases. It also aims to divert first-time offenders away from the criminal justice system for minor offences.

Although it is not yet in force in Bermuda, it is expected to become law soon. The DPP says the new guidance was created in consultation with ‘other stakeholders in the administration of justice’.

Attorney General, Mark Pettingill, told us he recently met with Ms Memari to discuss the new guidelines.

He added: “I am committed to consulting fully on the best form that the section 36 guidelines should take. I have concerns about the matrix scoring concept but am prepared to consider the effectiveness of this as used in the U.K and the DPP’s prosecution of offences powers as set out in our Constitution. As I understand it, the current guidelines have been published by the DPP in accordance with his requirements under the Act.”

Ms Memari told the Sun that she believed the changes showed little regard for the rule of law. She added: “The law should not be arbitrary. Before we had a system which established a criteria and would have been applied in an objective manner with the result that people would be treated equally. The new guidelines will not be applied objectively because the gravity score has now been removed.

“There does not appear any rhyme or reason why some offences that featured in the previous guidelines have now been removed.”