Digicel (Jamaica) Ltd v Independent Commission of Investigations

• Jurisdiction: Jamaica
• Judge: Mangatal J
• Judgment Date: 20 June 2013
• Neutral Citation: [2013] JMSC Civ 87
• Court: Supreme Court (Jamaica)
• Docket Number: CLAIM NO. 2012 HCV 03302
• Date: 20 June 2013

[2013] JMSC Civ. 87

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

IN THE CIVIL DIVISION

CLAIM NO. 2012 HCV 03302

Between:

In the Matter of the Independent Commission of Investigations Act

and

In the Matter of section 47 of the Telecommunications Act

and

In the Matter of the Interception of Communications Act

Digicel (Jamaica) Limited

Claimant

and

The Independent Commission of Investigations

Defendant

Mr. Maurice Manning instructed by Nunes Scholefield Deleon & Co , Attorneys-at-law for the Claimant .

Mrs. Shawn Wilkinson , Attorney-at-law for the Defendant .

STATUTORY INTERPRETATION — SECTION 21 INDECOM ACT-SECTION 47 TELECOMS ACT — SECTION 16 INTERCEPTION OF COMMUNICATIONS ACT — WHETHER EJUSDEM GENERIS RULE APPLICABLE — GENERALIA SPECIALABUS NON DEROGANT

IN CHAMBERS

Mangatal J

1 This matter is in the nature of a joint application as the parties felt it necessary to seek the Court's guidance on the interpretation of Section 21 of the Independent Commission of Investigations Act (‘the INDECOM Act’), Section 47 of the Telecommunications Act (‘the Telecoms Act’) and Section16 of the Interception of Communications Act.

2 The Claimant, Digicel (Jamaica) Limited (‘Digicel’) is a licensed carrier under the Telecommunications Act offering telecommunication services which enable it to provide, among other things, voice and data services to customers in the island of Jamaica. The Defendant, The Independent Commission of Investigations (‘INDECOM’) is a Commission of Parliament set up under the INDECOM ACT, to investigate, among other things, alleged misconduct on the part of members of the security forces and other agents of the state. INDECOM was set up to replace the Police Public Complaints Authority (PPCA), which had itself been created to investigate the alleged misdeeds of members of the police force.

3 Digicel, by a Fixed Date Claim Form and Affidavit, filed 13 ^th June 2012 seeks the following relief:

1

A Declaration that Digicel is restricted from providing subscriber information regarding the use of its services by third parties to INDECOM under Section 47(1) of the Telecoms Act; 2. A Declaration that INDECOM is not entitled to customer information pursuant to Section 47(2)(b)(i) of the Telecoms Act; 3. A Declaration that the INDECOM Act is not a law requiring disclosure of customer information for the purposes of investigating or prosecuting of a criminal offence; 4. A Declaration that Digicel is not compellable under Section 21(1) of the INDECOM Act to provide customer/subscriber information (and/)or traffic data to INDECOM; 5. A Declaration that Digicel is not compellable under Section 21 (4) of the INDECOM Act to produce customer/subscriber information and/or traffic data to INDECOM; 6. A Declaration that INDECOM is not a designated official for the purposes of Section 16 of the Interception of Communications Act; 7. No order as to costs, and 8. Such further and/or other relief as this Honourable Court deems just.

Background

4 On December 8 ^th , 2009, the Bureau of Special Investigation (‘BSI’) began investigating the alleged fatal shooting of one Robert “Kentucky Kid” Hill by members of the Security Force. The BSI is an arm of the Jamaica Constabulary force responsible for investigating allegations of abuse and misconduct by members of the force. A file was prepared and submitted to the DPP for her ruling after the BSI completed its investigation. The DPP subsequently issued her ruling recommending that the file be referred to the Coroner for the Corporate Area. The DPP also recommended that further in-depth investigations be carried out to examine allegations/suggestions that the officers implicated in the shooting were part of a conspiracy scheme involving the cousin of the deceased and a particular woman. Based on this recommendation, INDECOM commenced its investigation into this conspiracy plot. As part of the process, it sought to procure call data information from both Digicel and Cable & Wireless Jamaica Limited (‘LIME’) relating to the telephone numbers of the persons mentioned earlier as being a part of the conspiracy. Notices dated 28 ^th September 2011 were served on Digicel and LIME pursuant to Section 21 of the INDECOM Act. LIME complied with the request and provided the information. The Claimant however took the view that it could not comply with the request. In a letter dated 3rd October 2011, Digicel informed INDECOM that it could not comply with the request as its interpretation of the relevant sections of the Telecoms Act and the Interception of Communications Act is that these legislative provisions prohibit it from disclosing such information and that the INDECOM Act did not amend these earlier Acts. From thereon, both sides were engaged in constructive dialogue relative to the interpretation to be accorded to these provisions. Unable to reach a compromise the parties agreed that it would be best for them both to approach the Court with their respective views and have the matter determined by the Court.

5 At the start of submissions, Digicel expressed its position that it was not unwilling to provide the information to INDECOM. However, given the differences of opinion regarding the interpretation of the relevant statutes, it felt it necessary to have the Court clarify the issues and provide its ruling before Digicel acts. It was also indicated that circumstances have overtaken the events which initially gave rise to this application. However Counsel on both sides stated that the issue remains a live one, since it is likely to arise again, and thus the Court's ruling is still required.

Relevant Statutory Provisions

6 The text of the main relevant statutory provisions has been set out below.

Section 21 INDECOM ACT

21. (1) Subject to subsection (5), the Commission may at any time require any member of the Security Forces, a specified official or any other person who, in its opinion, is able to give assistance in relation to an investigation under this Act, to furnish a statement of such information and produce any document or thing in connection with the investigation that may be in the possession or under the control of that member, official or other person.

(2) The Statement referred to in subsection (1) shall be signed before a Justice of the Peace.

(3) Subject to subsection (4), the Commission may summon before it and examine on oath-

(a) any complainant; or

(b) any member of the Security Forces, any specified official or any other person who, in the opinion of the Commission, is able to furnish information relating to the investigation.

(4) For the purposes of an investigation under this Act, the Commission shall have the same powers as a Judge of the Supreme Court in respect of the attendance and examination of witnesses and the production of documents.

(5) A person shall not, for the purpose of an investigation, be compelled to give any evidence or produce any document or thing which he could not be compelled to give or produce in proceedings in any court of law.

(6) Section 4 of the Perjury Act shall apply to proceedings under this section in relation to an investigation as it applies to Judicial proceedings under that section.

Section 2 ‘Specified Official’ means-

(a) a correctional officer;

(b) such other public officer, as the Minister may by order specify, being a person upon whom is conferred any of the powers, authorities and privileges as are conferred by law on a member of the Jamaica Constabulary Force.

Section 47 Telecommunications Act:

47.-(1) Every carrier and service provider shall, subject to subsection (2), regard and deal with as secret and confidential, all information regarding the type, location, use, destination, quantity and technical configuration of services used by their customers.

(2) A carrier or service provider-

(a) shall disclose the information referred to in subsection

(1) to—

(i) the Commissioner of Police;

(ii) the officer of the Jamaica Constabulary Force in charge of-

(A) internal security; or

(B) the National Firearm and Drug Intelligence Centre or any organization replacing the same; or

(iii) the Chief of Staff, or head of the Military Intelligence Unit of the Jamaica Defence Force, upon being requested to do so by the person referred to in sub-paragraph (i), (ii) or (iii), as the case may require, for the purposes of investigating or prosecuting a criminal offence;

(b) may disclose such information-

(i) to the Office or pursuant to the provisions of any law for the time being in force which requires such disclosure for the purpose of the investigation or prosecution of a criminal offence;

(ii) with the written consent of the customer;

(iii) where the disclosure is necessary in defence of the carrier or service provider in any proceedings brought against the carrier or service provider.

(3) A service provider or carrier shall not be liable to any action or suit for any injury, loss or damage resulting from a disclosure of information pursuant to subsection (2).

Section 16 Interception of Communications Act

16 (2) Where it appears to the designated person that a person providing a telecommunications service is or may be in possession of, or capable of obtaining, any communications data, the designated person may, by notice in writing, require the provider-

(a) to disclose to an authorized officer all of the data in his possession or subsequently obtained by him; or

(b) if the provider is not already in possession of the data, to obtain the data and so disclose it.

Digicel's Submissions

7 Mr. Manning, Counsel representing Digicel, opened his submissions by firstly asking the Court to consider whether Digicel was...