Police Federation and Others v Commissioner of The Independent Commission of Investigations and Attorney General

• Jurisdiction: Jamaica
• Judge: Marsh J,Fraser J
• Judgment Date: 30 July 2013
• Court: Supreme Court (Jamaica)
• Docket Number: CLAIM NO. 2011HCV06165
• Date: 30 July 2013

[2013] JMFC Full 3

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

Cor:

The Honourable Mr. Justice Marsh

The Honourable Mr. Justice Campbell

The Honourable Mr. Justice Fraser

CLAIM NO. 2011HCV06165

Between

In The Matter of an Application for an Order for Relief and Constitutional Redress

and

In The Matter of Section 19 of the Constitution of Jamaica

and

In The Matter of the Independent Commission of Investigations Act

The Police Federation

First Claimant

Merrick Watson (Chairman of the Police Officers' Association)

Second Claimant

The Special Constabulary Force Association

Third Claimant

Delroy Davis (President of the United District Constables' Association)

Fourth Claimant

and

The Commissioner of The Independent Commission of Investigations

First Defendant

The Attorney General of Jamaica

Second Defendant

Mr. Donald Gittens & Mr. Seymour Stewart instructed by Jamlaw Caribbean for the Claimants

Mr. Richard Small and Ms. Shawn Wilkinson instructed by Ms. Shawn Wilkinson for the First Defendant

Ms. Althea Jarrett Director of Litigation instructed by the Director of State Proceedings for the Second Defendant

Ms. Paula Llewellyn Q.C. Director of Public Prosecutions and Ms. Meridian Kohler Deputy Director of Public Prosecutions appeared as amici curiae

Constitutionality of legislation — Whether section 20 of the Independent Commission of Investigations (INDECOM) Act is unconstitutional — Effect of section 20 conferring on the Commissioner and investigative staff of INDECOM, in the exercise of their duty, like powers, authorities and privileges as are given by law to a constable — Whether INDECOM's officers have the powers of arrest and charge — Whether INDECOM's officers having such powers would undermine the Office of the Director of Public Prosecutions

Marsh J

1 By Amended Fixed Date Claim Form filed on the 10th October 2010, the Claimants, the Police Federation, Merrick Watson (Chairman of the Police Officers Association); the Special Constabulary Force Association and Delroy Davis (the United District Constables Association) respectively sought administrative order and/or constitutional redress under Section 25 of the Constitution of Jamaica. They contended that the provisions of Sections 13 (3) (a), 14 and 19 of the Constitution are likely to be contravened by the first Defendant in relation to them.

2 The relief claimed by the Claimants against the first Defendant (the person appointed pursuant to Section 3 (2) of the Independent Commission of Investigations Act, and called hereafter “the Act”, the Commissioner, the following: —

• i. A declaration that Section 20 of the Independent Commissions of Investigations Act 2010, construed against the provisions of Sections 13 (3) (a), 14 and 19 of the Constitution does not confer on the Defendant, the power to arrest and/or charge anyone for any criminal offence, or for the offence of Murder or for any felony and neither does the common law.

• ii. A declaration that neither the said Section 20 of the Act nor the Common Law does not confer on the Defendant the power to arrest and/or charge a member of the Jamaica Constabulary Force or of the Island Special Constabulary Force or any District Constable.

• iii. A declaration that any act by the Defendant to charge any member of the Jamaica Constabulary Force, Island Special Constabulary Force or any District Constable for any criminal offence, arising from circumstances that occur in the execution of their duties, in the absence of a ruling from the Director of Public Prosecutions that the member be so charged would be likely to contravene the rights of such a member under Sections 13 (a) and 15 of the Constitution, in that it would deprive such a member of Legitimate Expectation, derived from the custom and practice of the Director of Public Prosecutions, that such member would not be so charged in the absence of such a ruling.

• iv. Interim relief by way of an injunction to restrain the Defendant from arresting and or charging and/or from in any manner to interfere with or restrict the personal liberty of any member of the Jamaica Constabulary Force or of the Island Constabulary Force or of the Rural Police for or on account of any criminal offence arising from circumstances that occur in the execution of their duties, in the absence, of a ruling from the Director of Public Prosecutions that the member be so charged.

3 The legal bases the Claimants give as grounding their entitlement to the remedies sought are the following:-

• i. The Claimants all have the same or similar interest in the ‘subject matter and the issues raised in these proceedings.’

• ii. The Defendant has claimed and purported to exercise a power of arrest and charge for the criminal offence of murder against the Claimants and has grounded his power under Section 20 of the Act and under common law. They are not founded, on any reasonable interpretation of the Act, as against Section 13 (3) (a) 14 and 19 of the Constitution or under common law.

• iii. They are repugnant to procedure and guidelines set out in the Police Services Regulations 1961. They violate the Claimants' legitimate expectation to a ruling from the Director of Public Prosecutions, whether they should be arrested and/or charged for murder or any criminal offence.

4 The claim is made under Section 25 of the Constitution of Jamaica, invokes the interpretation of the Act generally, especially of Section 20 thereof, together with all the sections referred to in Section 20.

THE EVIDENCE

5 The Claimants as joint affiants state that the first Defendant has claimed and purported to exercise a power of arrest and charge for the criminal offence of Murder against the Claimants and has sought to ground his power on the said Section 20 of the said Act.

6 That they were advised by Corporal Malica Reid and believed to be true that he had been dispatched, from Kingston on November 4, 2010, as a member of a police team on special duties in Westmoreland. This was a result of orders from a superior officer. While on this said duty his party came under gunfire from a group of 4 or 5 men; the fire was returned and one of the men was hit fatally.

7 Investigations were commenced into the incident mentioned and he, Cpl. Malica Reid, on February 25, 2011 was requested to attend at Savanna-La-Mar Police Station where an investigator from the Independent Commissioner for Investigations arrested and charged him for the murder of one Fredrick Mickey Hill, alleged to have been killed during the incident of November 4, 2010. He was subsequently taken to the Savanna-La-Mar Resident Magistrate Court, appeared before a Resident Magistrate, was detained and his fingerprints taken.

8 If the injunctive relief sought by the Claimants is not granted, the Defendant will pursue the course he has embarked upon ‘of arresting and charging us and our members under the circumstances complained about in this claim’. It is also the affiants' claim that after the arrest and charge of Malica Reid, the Defendant has ‘arrested and charged other members of the Jamaica Constabulary Force for the offence of Murder.’

SUBMISSIONS

9 Counsel for the first Defendant submitted that it amounted to an abuse of the process of the Court for the Claimants to have brought the instant claim for Constitutional redress, as:

• i. There are alternative remedies,

• ii. The claim is academic as there is no issue joined between the Claimant and the first Defendant.

• iii. Matters for determination do not raise constitutional issues that are essentially questions of statutory interpretation of the common law on which any Court can pronounce.

10 The Declarations sought by the Claimants boil down to two issues, namely:

• i. Does the INDECOM Act or the common law confer on the first Defendant the power to arrest or charge anyone for a criminal offence?

• ii. Does the INDECOM Act or the common law confer on the first Defendant the power to arrest or charge a member of the Jamaica Constabulary Force without the requirement of a ruling from the Director of Public Prosecutions?

11 Neither of these questions raises constitutional issues as by merely adding the phrase ‘construed against the provisions of sections 13 (3) (a) and 14 and 19 of the Constitution’, does not raise the issues to issues of constitutional interpretation. These issues are essentially issues of either statutory interpretation and/or interpretation of the common law — determination of which is well within the ordinary court's jurisdiction.

12 Where there exist alternative remedies, the bar to access to the Constitutional Court is embodied in Section 19 (4) of the Jamaica Constitution. This is stated thus. ‘…the Supreme Court may decline to exercise its powers and may remit the matter to the appropriate court…if it is satisfied that adequate means of redress for the contravention alleged are available to the person concerned under any other law.’

13 It is a further submission that the Claimants are possessed of alternative remedies in respect of the Claims they have brought to the Constitutional Court. Despite the first Defendant's contention that the claim is baseless, he submits that, if the matter can properly be pursued, it would have had to be in the form of a claim for declarations as to statutory interpretation without resorting to the Constitutional Court. A similar requirement exists in respect of Judicial Review matters. In R ex parte Livingstone Owayne Small v. The Commissioner of Police and the Attorney General HCV 2362 of 2003 delivered on 18th September, 2006 Campbell J, at paragraph 15 expounded the principle thus:

…the availability to an alternative remedy is a bar to the grant of judicial review. It is settled that judicial review is a remedy of ‘last resort.’

14 The first Defendant contended further that having...