Independent Commission of Investigations v Digicel (Jamaica) Ltd

• Jurisdiction: Jamaica
• Judge: Dukharan JA,McIntosh JA,Brooks JA
• Judgment Date: 29 May 2015
• Neutral Citation: JM 2015 CA 57,[2015] JMCA Civ 32
• Court: Court of Appeal (Jamaica)
• Docket Number: CIVIL APPEAL NO 54/2013
• Date: 29 May 2015

[2015] JMCA Civ 32

JAMAICA

IN THE COURT OF APPEAL

SUPREME COURT

Before:

The Hon Mr Justice Dukharan JA

The Hon Mrs Justice McIntosh JA

The Hon Mr Justice Brooks JA

CIVIL APPEAL NO 54/2013

Between

The Independent Commission of Investigations

Appellant

and

Digicel (Jamaica) Limited

Respondent

Terrence Williams and Miss Rhona Morgan instructed by Rhona Morgan for the appellant

Maurice Manning and Miss Michelle Phillips instructed by Nunes Scholefield DeLeon & Co for the respondent

EVIDENCE - Telecommunications - Whether INDECOM may compel a telecommunication service provider to supply it with information - Whether criminal offence committed by disclosing telephone subscriber and call data - Power of INDECOM - Whether Digicel has discretion to provide or withhold information - Telecommunications Act, s. 47(1) - Independent Commission of Investigations Act, s. 21 - Interception of Communications Act, s. 16 - Contractor General Act, s. 18(4) - Financial Investigations Division Act, s. 17(4) - Office of Utilities Regulation Act, sections. 4(1)(e) and 5

Dukharan JA

1 I have read, in draft the judgment of my brother Brooks JA. I agree with his reasoning and conclusion and have nothing to add.

McIntosh JA

2 I agree with Brooks JA's analysis of the arguments in this matter and his resulting conclusions as set out in his judgment, a draft of which I was privileged to read. I have nothing to add.

Brooks JA

3 The main issue for determination in this appeal is whether the Independent Commission of Investigation (INDECOM) may compel a telecommunications service provider to supply it with information which the Telecommunications Act (Telecoms Act) and the Interception of Communications Act (Intercept Act) require the provider to keep secret and confidential. Digicel (Jamaica) Limited (Digicel), one of the island's telecommunications providers, raised that question, among others, by way of a fixed date claim in the Supreme Court. Digicel contended that the provider was not compellable. INDECOM opposed that position. On 20 June 2013, Mangatal J ruled ( [2013] JMSC Civ 87 ) that the provider was not compellable. INDECOM has appealed against the learned judge's decision.

4 The resolution of the issue identified above requires an assessment of the relevant provisions of several statutes and their interaction. Before proceeding with that assessment, it is necessary to provide more detail about the parties and the factual background leading to the litigation.

The background facts

5 Digicel is licenced under the Telecoms Act to provide telecommunication services, including voice and data services, to the public. In the course of its business it comes into possession of subscriber information and call traffic information generated through subscribers' use of its voice services. The information is all in digital format, and Digicel stores it.

6 INDECOM is a commission of Parliament. It was created by the Independent Commission of Investigations Act (INDECOM Act). It is mandated, among other things, to investigate alleged misconduct by agents of the state, including police officers.

7 In September 2011, INDECOM was investigating the killing of a man by police officers. By letter dated 27 September 2011 it issued a notice to Digicel requiring Digicel to provide it with call data and subscriber details for certain telephone numbers. The notice was said to have been issued in accordance with section 21 of the INDECOM Act. It, however, gave no reason for INDECOM's requiring the information. The relevant portion of the notice stated as follows:

‘ TAKE NOTICE that you are required to provide the office of the Independent Commission of Investigations…with a report in the form of a written statement pursuant to section 21 of the Independent Commission of Investigations Act, touching and concerning particular information on the numbers below. You are required to bring along with you certified copies of all call data and subscriber details for said numbers for the period November 2009 to January [2010]…The call data must outline the numbers that received these calls and any SMS data available. The cell sites from which each call was transmitted must also be indicated…’ (Emphasis as in original)

8 Digicel took legal advice and thereafter informed INDECOM that, although it was not averse to providing the information, it was precluded from doing so by both the Telecoms Act and the Intercept Act. Negotiations between the parties failed to break the deadlock, and Digicel sought the assistance of the court to resolve the dispute.

The decision in the court below

9 Mangatal J concluded her judgment with a number of declarations that accurately summarised the various conclusions to which she had come, in her very well organised reasons for judgment. She stated at paragraph 52:

• ‘1. Digicel is restricted from providing subscriber information regarding the use of its services by third parties to INDECOM pursuant to sub-section 47 (1) of the Telecommunications Act.

• 2. INDECOM is not an authorized officer or a designated person within the meaning of section 16 of the Interception of Communications Act.

• 3. Digicel is not compellable under section 21(1) of the Independent Commission of Investigations Act to provide customer/subscriber information and/or traffic data to INDECOM.

• 4. Digicel is not compellable under section 21 (4) of the Independent Commission of Investigations Act to produce customer/subscriber information and/or traffic data to INDECOM.

• 5. The Independent Commission of Investigations Act is a law which contains provisions which would require the disclosure of the subscriber information for the purpose of investigating a criminal offence.

• 6. Whilst INDECOM is not entitled to the subscriber information, as Digicel has a discretion pursuant to subsection 47(2)(b)(i) in respect of disclosure, in appropriate circumstances, such as if the Notice had properly specified the purpose for which the Notice was issued, which purpose was the investigating of a criminal offence, Digicel could have exercised its discretion in favour of INDECOM's request.’

The appeal

10 Learned counsel for INDECOM, Mr Williams, quite helpfully reduced the numerous grounds of appeal filed on behalf of INDECOM, into four categories. In these grounds, INDECOM contends that:

• a. The INDECOM Act is aimed at ensuring the compliance with the constitutional obligations surrounding the right to life, and has given all the powers of a constable to INDECOM in pursuance of that objective. The INDECOM Act should, therefore, have been purposively interpreted to allow INDECOM to conduct an effective and independent investigation, as a constable would have been able to do. This, the learned judge failed to do. (The constable issue)

• b. ‘No criminal offence is committed by disclosing telephone subscriber and call data. Such disclosure is not privileged’, despite the learned judge's finding. (The privilege/offence issue)

• c. Contrary to the finding of the learned judge, ‘[n]o person [would] suffer civil liability on account of information given to [INDECOM].’ (The privilege/ discretion issue)

• d. Contrary to the finding of the learned judge, INDECOM, in accordance with the powers of a judge given to it by the INDECOM Act, ‘can order the disclosure of secret and confidential information’ and nothing in the Telecoms Act or the Intercept Act ousts the jurisdiction of a judge to order such disclosure. (The judge issue)

  The portions in quotes are from paragraph 30 of Mr Williams' written submissions. The constable issue and the judge issue, based on the submissions, speak to the question of compellability by virtue of the general provisions of the law, as they affect the INDECOM Act and the telecommunications industry. These two issues shall, therefore, be addressed before the privilege issues, which focus more specifically on the INDECOM, Telecoms and Intercept Acts. The four issues will be individually assessed after an outline of the relevant portions of those Acts.

The relevant legislation

11 Section 21 of the INDECOM Act, on which INDECOM primarily relies, allows INDECOM to require information from any person in pursuance of its investigations under the Act. The section states:

‘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 statements 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.’ (Emphasis supplied)

The term ‘specified official’, as used in the section refers to correctional...