Bert Samuels | Can INDECOM survive castration?

The Court of Appeal's long-awaited decision - having reserved judgment on June 2, 2016 following four days of arguments - has settled an interesting issue in favour of police officers, the appellants, represented by Jacqueline Samuels-Brown, QC. That issue concerns the powers of INDECOM, an institution created by Parliament in 2010 as an oversight body to monitor the conduct of members of the security forces in Jamaica, under the INDECOM Act.

INDECOM was Parliament's response to the charge from several civil-society groups that the police force was incapable of policing itself, a criticism that dogged many previous investigative bodies staffed with police officers. The name of the agency itself suggests the intent of Parliament.

The shocking figures for extrajudicial killings in Jamaica had to be halted, hence the bipartisan support for the creation of this investigative watchdog. To no one's surprise, INDECOM was soon unwelcome by cops, as it aggressively and proactively took over crime scenes, demanded weapons for testing, compelled officers to explain their roles in writing, thereafter laying charges, making arrests, and fearlessly prosecuting law enforcers before the criminal courts. These powers sent shock waves through a previously autonomous police force, which, since its formation post-1865, carried out its crime-fighting work virtually unfettered by any coercive arm of the State.

The Court of Appeal was primarily concerned with looking at Section 20 of the act to see whether INDECOM's enjoyed powers of arrest, laying charges, and prosecuting police defendants was the intent of Parliament. That section, with specific reference to the commission's powers of investigation found at sections 4.13 and 4.14, provides as follows:

"For the purpose of giving effect to sections 4.13 and 14, the commissioner and the investigative staff of the commission shall, in the exercise of their duty under this act, have like powers, authorities and privileges as are given to a constable."

 

FINAL ANALYSIS

 

The Court of Appeal examined the Constitution, common law, accepted procedures and practices, and statutory provisions, then interpreted the language used in Section 20, in coming to its decision about the intent of Parliament.

The judgment is 223 paragraphs long, with one of the justices dissenting, in part, from the majority. In the final analysis, in a thoroughly reasoned judgment, the court found in favour of the three police bodies that had appealed the Full Court's decision of July 2013.

There being no injunction in place to put the work of INDECOM on hold pending the decision of the Court of Appeal for the past five years, the commission continued its work of arresting, charging, and putting officers on trial. The police have waited long for this victory. The court made it clear that INDECOM's core post-investigative activities were not permitted to be carried out in the name of INDECOM. It, effectively, ruled that the act created no new powers, enabling the commission to arrest, charge, and take members of the police force before the courts.

INDECOM was not in law, the court decreed, a person or corporate entity to have it acquire rights at common law, to carry out arrests leading to criminal charges, and, thereafter, a prosecution. INDECOM's investigators could not use the act to do more than John Brown, a private citizen, could. We are all, as adults and private citizens, long before the formation of INDECOM in 2010, empowered by the common law to arrest or assist in the arrest of a suspect, take them to court, and actively prosecute them.

With that said, the court hastened to caution INDECOM's investigators that when they embark on the arrest of suspects, they enjoy no more powers than private citizens do. They do not have the protection of the law that police officers enjoy and may find themselves personally liable for civil action brought for malicious prosecution and false imprisonment.

 

CORE FUNCTION

 

The judgment suggested that it may be prudent for members of INDECOM to adhere to their core function as investigators, making the fruits of their investigations available to the Office of the Director of Public Prosecutions (DPP), which may take the matter further, if warranted. This suggests that INDECOM would be well advised not to work parallel to, or in competition with the DPP, but rather to pass the baton to that office, and await its ruling.

This landmark decision is bound to affect the morale of INDECOM, as it has arrested the effectiveness of the work of this oversight body. Questions to be answered are - will Parliament instruct its draughtsmen to state, in clear language, the powers INDECOM wrongly assumed it had? Will we maintain an arrangement where the DPP continues to enjoy its monopoly of instituting, taking over, and terminating prosecutions in Jamaica?

Will there be a resumption of the practice whereby officers are not charged unless there is a ruling by the DPP to so do? What of those current and past prosecutions instituted and brought to court by INDECOM?

INDECOM may not get the powers it wants from the Government of Andrew Holness, who said at the last Jamaica Labour Party conference in November 2017:

"I believe that sometimes INDECOM goes too far, and places our police officers on the retreat. That means that a balance has to be struck. We need our policemen to be motivated. We need our policemen to feel that they are protected in fighting crime."

The maxim, the more things change, the more they remain the same, may come to haunt INDECOM's view of itself and its role as an oversight body.

- Bert S. Samuels is an attorney-at-law. Email feedback to columns@gleanerjm.com and bert.samuels@gmail.com.