Major General Antony Anderson Chief of Defence Staff v Jamaica Defence Board; Independent Commission of Investigations

• Jurisdiction: Jamaica
• Judge: Lawrence-Beswick, J,Daye, J,George, J
• Judgment Date: 30 July 2018
• Court: Supreme Court (Jamaica)
• Docket Number: CLAIM NO. 2016 HCV 00066
• Date: 30 July 2018

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

IN THE FULL COURT

The Honourable Ms Justice Carol Lawrence-Beswick

The Honourable Mr Justice Courtney Daye

The Honourable Mrs Justice Sharon George

CLAIM NO. 2016 HCV 00066

In The Matter of a Warrant Issued Pursuant to S.4(3) and Notices Issued Pursuant to S.21 Both of the Independent Commission of Investigations Act

and

In The Matter of the Independent Commission of Investigations Act 2010

and

In The Matter of the Emergency Powers Act and the Emergency Powers (No.2) Regulations 2010

and

In The Matter of the Official Secrets Act 1911 & 1920

Between

Major General Antony Anderson Chief of Defence Staff

1 ^st Claimant

and

Jamaica Defence Board

2 ^nd Defendant

and

Independent Commission of Investigations

Defendant

IN OPEN COURT

Walter Scott Q.C. and Matthieu H.J. Beckford of Rattray Patterson Rattray for the 1 ^st claimant

Nicole Foster-Pusey Q.C., Monique Harrison and Faith Hall of the Office of the Director of State Proceedings for the 2 ^nd claimant

Tana'ania Small Davis, Yanique Taylor and Mikhail Jackson instructed by Livingston, Alexander and Levy for the defendant

Judicial review — Retrospectivity of the INDECOM Act — Legislative Interpretation — INDECOM Act — Official Secrets Act— Public Interest Immunity — INDECOM's jurisdiction — Disclosure — Warrants and Notices issued under the INDECOM Act

Lawrence-Beswick, J

1 This is an application by Major General Anthony Anderson as Chief of Defence Staff (“the CDS”) (as he then was), the 1 ^st claimant, and the Jamaica Defence Board (“the Board”), the 2 ^nd claimant, for judicial review of a decision of the Independent Commission of Investigations (INDECOM), the respondent.

2 The CDS is the officer in command of the Jamaica Defence Force (“the JDF”), and is appointed by the Governor General 1. The Board has responsibility for matters including the command, discipline and administration of the armed forces. 2

3 INDECOM has taken the decision to issue a warrant 3 to the CDS to enter Up Park Camp to have access to and enter offices, buildings and facilities of the JDF and to make enquires, and inspect documents, records, information and property pertaining to certain listed matters. Up Park Camp is described as the headquarters of the JDF 4.

4 The warrant was accompanied by seven notices 5 to members of the JDF and or its agents who participated in the execution of an order to fire mortar rounds into Tivoli Gardens and its environs during the State of Emergency in May 2010. These notices sought to compel the members to give evidence on oath concerning the operation.

BACKGROUND

Operations

5 In May 2010, the JDF and the Jamaica Constabulary Force (JCF) conducted joint operations in West Kingston in an effort to execute a warrant on a fugitive pursuant to an extradition request from the United States of America. During the operations, more than seventy persons lost their lives. There is the possibility that at least one of them died as a result of mortars fired by the JDF.

6 INDECOM as a commission of Parliament 6 sought to investigate the use of mortars by the JDF on 24 May 2010 to determine whether there are any reasonable grounds to suspect that during the operations any member of the

JDF contravened the law and whether recommendations ought to be made by INDECOM concerning the operations.

Correspondence

7 INDECOM wrote on 15 September 2011 advising the JDF that it had commenced an investigation into the fatalities that occurred in Western Kingston during the State of Emergency which existed in May 2010. INDECOM requested the CDS to furnish a report by 31 October 2011 with information on:

Almost four months passed without a response to that letter.

• a. The activities of members of the force

• b. The command structure that existed within the sphere of the operation

• c. An account of persons whose lives were lost including their names, when, where, and how they were killed.

• d. A copy of any debriefing notes, statements, diary entries, records and other documents collected, received or held by JDF force concerning these matters.

• e. A list of all personnel who took the life of a citizen together with the date, time, and place that the life was taken; the name of the deceased and the circumstances under which the deceased died.

8 On January 10, 2012 INDECOM again wrote to the CDS requesting that the JDF respond to the September 15, 2011 letter and also to its earlier letter of September 13, 2011 which had been addressed to a Lieutenant Colonel of the JDF.

9 It was a month later before the CDS responded to INDECOM on February 9, 2012 submitting a report pertaining to the JDF's activities being investigated by INDECOM. This report did not include details on the use of mortars. INDECOM replied, asking for the additional specific information requested which the JDF should by then have had.

10 June 6, 2012 saw the Bureau of Special Investigations (BSI), a branch of the JCF, handing over to INDECOM, material from its own investigation of the operations. This “handing over” was in the form of a letter which included a list of police involved, statements of civilians, information on a missing person subsequently identified and post mortem examination reports. This investigation did not disclose or concern the use of mortars.

On June 13, 2012 INDECOM again wrote to the CDS referring to the earlier letters which it had sent and also to the insufficient response which JDF had made.

Local and foreign news media

11 Meanwhile local and foreign news media carried reports referring to the JDF having launched mortars in the West Kingston operations to break through barricades which supporters of the fugitive had erected to block entry to an area where it was suspected he may have been.

12 JDF in a press release informed that under normal circumstances it does not discuss details surrounding operational tactics or procedures, but because of the potential for speculation and misunderstanding it confirmed that mortars and bulldozers had been used as part of the May 2010 operation and sought to clarify the circumstances surrounding their use.

Public Defender

13 The Office of the Public Defender had carried out its own investigations. It had received civilian allegations of bombs being used during the operation and almost a year after its initial enquiries forwarded their files to INDECOM in August 2012.

Further requests

14 INDECOM continuing to make requests of JDF, wrote on March 11, 2013 asking to interview senior officers who may have intimate knowledge of the operation. A particular officer was specified. In the ensuing months, INDECOM and the JDF had discussions concerning the ballistics analysis of the operation.

Search Warrant

15 By December 3, 2015 a Ballistic Examination Report was available. Speculation was rife. A few weeks later, on December 22, 2015 INDECOM, utilising the Independent Commission of Investigations Act (“the Act”), wrote the JDF attaching a warrant 7 and seven notices pertaining to the Joint JDF/JCF Operation in West Kingston, May 2010”. The warrant was to be executed at the JDF's premises on Thursday, 12 January 2016 at 9:30 a.m. The notices required named members of the JDF to attend upon the Commissioner of INDECOM for questioning on oath.

16 December 30, 2015 saw JDF informing INDECOM by letter that a copy of their December 22, 2015 letter had been forwarded to the Defence Board. The new year brought an objection to a search of JDF by INDECOM.

Objection to search warrant

17 The Attorney General's chambers by letter of January 8, 2016, objected to the search of the JDF, referring to the Official Secrets Act and the perceived impropriety of the execution of a search warrant on the premises in all the

circumstances. The Solicitor General's opinion was that the court should be asked to consider the situation because weighty and complex issues were being raised

18 Within days, on January 12, 2016, attorneys-at-law for INDECOM indicated that the warrant was not in fact a search warrant. INDECOM had no intention of conducting a search of the headquarters, but rather, expected to be given access to the records and other items for inspection and copying as considered necessary and pertinent. The Official Secrets Act would not prevent such disclosure.

Application for Judicial Review

19 Thereafter, the claimants filed Notices of Application for Court Orders 8 for leave to apply for judicial review of the decision of INDECOM to issue the warrant and notices and seeking specified reliefs. On 20 January 2016, JDF was granted leave to seek judicial review. INDECOM, through its counsel, gave an undertaking not to execute the warrant or to give effect to the notices until the determination of the Fixed Date Claim Form filed in the matter.

Certificate of immunity

20 Meanwhile, the Minister of National Security had issued a certificate of immunity dated 7 January 2016 certifying that no action, suit, prosecution or other proceedings shall be brought or instituted against any Officers or Ranks of the JDF in respect of the orders to fire and the firing of mortar rounds during the emergency period as defined and interpreted in regulation 45(5) of the Emergency Powers (No.2) Regulations 2010.

Fixed date claim form

21 On 29 January 2016, the claimants filed a fixed date claim form with supporting affidavits, seeking the following reliefs.

• 1. An Order of Certiorari quashing the Warrant dated December 22, 2015 issued by a Justice of the Peace on an application by the Independent Commission of Investigations pursuant to section 4(3) of the Independent Commission of Investigations Act and directed to the 1 ^st Claimant (hereinafter called the “Warrant”).

• 2. An Order of Certiorari quashing all Notices to persons unnamed issued pursuant to section 21 of the Independent Commission of Investigations Act and...