Malica Reid v Commissioner of the Independent Commission of Investigations, Attorney General of Jamaica, Director of Public Prosecution, Isaiah Simms and Eric Daley

• Jurisdiction: Jamaica
• Judge: Straw J
• Judgment Date: 15 March 2011
• Judgment citation (vLex): [2011] 3 JJC 1801
• Court: Supreme Court (Jamaica)
• Docket Number: CLAIM NO. 2011 HCV 00981
• Date: 15 March 2011

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

CLAIM NO. 2011 HCV 00981

BETWEEN

MALICA REID

APPLICANT

AND

THE COMMISSIONER OF THE INDEPENDENT COMMISSION OF INVESTIGATIONS

1 ^ST RESPONDENT

AND

THE ATTORNEY GENERAL OF JAMAICA

2 ^ND RESPONDENT

AND

DIRECTOR OF PUBLIC PROSECUTION

3 ^RD RESPONDENT

AND

ISAIAH SIMMS

4 ^TH RESPONDENT

AND

ERIC DALEY

5 ^TH RESPONDENT

^{st th th}

^nd

Indecom Act - Application for Leave to Apply for Judicial Review - Powers of Arrest

Straw J

1 1. The applicant, a corporal of police with the Jamaica Constabulary Force has applied for leave for Judicial Review in relation to, inter alia, the following issues:

• 2 a. The lawfulness of the purported exercise of powers of arrest and charge by the Commissioner of the Independent Commission of Investigations who derives his powers from the Independent Commission of Investigations Act (Indecom Act).

• b The review the lawfulness of the purported exercise of powers of arrest and charge by private citizens who derive their powers from the Justice of the Peace Jurisdiction Act.

• c. To review the lawfulness of the Act of prosecuting a police officer without first obtaining the ruling of the Director of Public Prosecution (DPP).

2 3. Although the hearing of this matter concerned the issue of leave, all the relevant parties were served and arguments heard from all save and except the third respondent who declined to be heard at this stage.

3 4. Rule 56 3 (1) (d) of the Civil Procedure Rules ( CPR) 2002 states that the application for leave must state whether an alternative form of redress exists and, if so, why judicial review is more appropriate and why the alternative has not been pursued.

4 The Relevant Issues Giving Rise to the Application

5 5. In November 2010, the applicant was a member of a police team involved in a gun battle with alleged gunmen. Mr. Roderick Hill was shot and killed during this incident.

6 The Commissioner of Indecom commenced investigations into the matter and on February 25, 2011, the fourth and fifth respondents who were officers of Indecom, arrested and charged the applicant for the murder of Mr. Hill, and (on the instructions of the first respondent through its Commissioner) detained and placed the applicant before the Resident Magistrate's Court in Savanna-la-mar.

7 6. He was remanded in custody by the Resident Magistrate, Her Honour Ms. Lyle Armstrong on the application of the first respondent and detained at the Savanna-la-mar Police Station jail.

8 7. At about 4:15 p.m., he was returned to court before the Magistrate who told him, he would be released as there were some issues with the manner in which he was placed before the court and he was asked to return on March 1, 2011.

9 8. On that date, the Resident Magistrate heard legal arguments from the first respondent and the applicant's attorney-at-law. He was then asked to return to court on March 16, 2011 for a ruling on the issue whether the first respondent has locus standi to conduct a case in court against him and whether he has a right to charge him for murder without a ruling from the third respondent.

10 9. As of the date of delivery of this judgment, the above-mentioned date has now passed. However, arguments and submissions commenced in the matter from March 14, 2011.

11 However, on March 17, 2011, there were new developments as the court was informed that the DPP had entered a nolle prosequi in the Resident Magistrate's Court in the prosecution “purportedly” commenced by the Commissioner of Indecom. Further, on the date of delivery of this judgment, a voluntary bill of indictment had been entered in the Home Circuit Court against the applicant on the charge of murder.

12 10. Counsel for the applicant therefore withdrew the application for prohibition in relation to the Resident Magistrate.

13 11. Mr. Small submitted that the issue of judicial review was now entirely academic, save and except for the allegation that the arrest was unlawful. He submitted that the alternative remedy, a civil trial, is available to the applicant.

14 12. Mr. Cameron, on behalf of the applicant asked the court to consider the effect of the refusal on the applicant if he had to institute proceedings in a civil court for the tort of false imprisonment as he would have the burden of proving both malice and lack of reasonable and probable cause.

15 Reasons for Judgment

16 13. This is a seminal case and, although the terms of reference have shifted since the submissions commenced, the issues are still relevant. At this time, the application for certiorari is unnecessary. However, the court still has to assess the relevant facts within the framework of the purpose for judicial review as the applicant is seeking to obtain several declarations.

17 14. Albert Fiadjoe, Commonwealth Caribbean Public Law, (3 ^rd edition), in examining the issue of judicial review, states as follows (pg. 15):

‘The power of judicial review may be defined as the jurisdiction of the superior courts to review laws, decisions, acts and omissions of public authorities in order to ensure that they act within their given powers. Broadly speaking, it is the power of the courts to keep public authorities within proper bounds and legality — Its jurisdiction is always involved at the instance of a person who is prejudiced or aggravated by an act or omission of a public authority —

Once an...