The Police Federation v The Commissioner of The Independent Commission of Investigations

JurisdictionJamaica
CourtCourt of Appeal
JudgePhillips JA,Brooks JA,F Williams JA
Judgment Date16 March 2018
Neutral CitationJM 2018 CA 26
Docket NumberSupreme Court Civil Appeal No 73/2013
Date16 March 2018

[2018] JMCA Civ 10

In The Court Of Appeal

Before:

The Hon Miss Justice Phillips JA

The Hon Mr Justice Brooks JA

The Hon Mr Justice F Williams JA

Supreme Court Civil Appeal No 73/2013

Between
The Police Federation
1 st Appellant

and

Merrick Watson (Chairman of the Police Officers Association)
2 nd Appellant

and

The Special Constabulary Force Association
3 rd Appellant

and

Delroy Davis (President of the United District Constables Association)
4 th Appellant
and
The Commissioner of The Independent Commission of Investigations
1 st Respondent

and

The Attorney General of Jamaica
2 nd Respondent

Mrs Jacqueline Samuels Brown QC, Lorenzo Eccleston, Miss Marsha Samuels and Donald Gittens instructed by JamLawCaribbean for the appellants.

Richard Small, Mrs Shawn Wilkinson and Miss Yanique Taylor instructed by the 1 st respondent.

Miss Althea Jarrett instructed by the Director of State Proceedings for the 2 nd respondent.

Miss Kathy Pyke and Mrs Denise Samuels-Dingwall instructed by the Director of Public Prosecutions appearing amicus curiae.

Administrative Law - Power of Commissioner of Independent Commission of Investigation to arrest, charge and initiate prosecutions of police officers — Whether power could undermine the constitutional authority of the Director of Public Prosecutions.

Phillips JA (DISSENTING IN PART)

1

This appeal sought to challenge the decision of the Full Court delivered on 30 July 2013, wherein Marsh, Campbell and Fraser JJ found inter alia, that: (i) the Commissioner of the Independent Commission of Investigations (the 1 st respondent) and his investigative staff had the power to arrest, charge and initiate prosecutions of police officers; (ii) there was no requirement for a ruling from the Director of Public Prosecutions (the DPP) before police officers are criminally charged; and (iii) that the 1 st respondent's power to arrest, charge and prosecute did not undermine the constitutional authority of the DPP. This decision is being challenged on the basis that inter alia, the Full Court failed to recognize or accept that neither the Independent Commission of Investigations Act, 2010 (the Act) nor common law, conferred the power to arrest, charge or to initiate prosecutions on the 1 st respondent or his investigative staff, and that the Full Court failed to give sufficient regard to the long-standing custom and practice for the DPP to issue a ruling before police officers are charged with criminal offences.

Background
2

The Police Federation (the 1 st appellant) is constituted by section 67(1) of the Constabulary Force Act, and represents police officers on matters affecting their general welfare and efficiency. Merrick Watson (the 2 nd appellant) is a Superintendent of Police, and Chairman of the Police Officers' Association, a voluntary association consisting of police officers above the rank of Inspector. The Special Constabulary Force Association (the 3 rd appellant) is constituted by section 26(1) of the Constables (Special) Act, and represents special constables (as they then were) on matters affecting their general welfare and efficiency. Delroy Davis (the 4 th appellant) is the Chairman of the United District Constables Association, a voluntary association consisting of district constables.

3

The 1 st respondent is constituted pursuant to section 3 of the Act and as indicated, is the Commissioner of the Independent Commission of Investigations (INDECOM), which is a Commission of Parliament that undertakes investigations concerning allegations of unlawful and/or arbitrary actions by members of the security forces and other state agents. Pursuant to section 3(1) of the Act, INDECOM consists of the 1 st respondent and pursuant to section 8 of the Act, INDECOM for the purposes of the Act, may appoint and employ employees and agents including investigators. In section 2 of the Act “investigator” is defined as in relation to an investigation under the Act as “an employee or part of [INDECOM] assigned duties in relation to that investigation”. Pursuant to section 26(1) of the Act, INDECOM's functions may be performed by any member of its staff or by any other person (not being a member of the security forces or a specified official) authorised for that purpose by INDECOM.

4

The 1 st respondent had claimed and purported to exercise the power to arrest, charge and prosecute police officers under section 20 of the Act and the common law. However, the appellants contended that the 1 st respondent had no such authority, and any purported exercise of such powers was being done in contravention of the Constitution of Jamaica (the Constitution). The appellants therefore filed an amended fixed date claim form on 10 October 2011, containing an application for administrative orders and/or constitutional redress, in which they sought the following:

“[1] A Declaration that section 20 of the Act, construed against the provisions of sections 13(a) and 15 of the Constitution, does not confer on the [1 st respondent], the power to arrest and/or charge anyone at all for any criminal offence, or for the offence of murder, or for any felony, and neither does the common law.

[2] A Declaration that section 20 of the Act, construed against the provisions of sections 13(a) and 15 of the Constitution, does not confer on the [1 st respondent], and neither does the common law, 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, for any criminal offence, or for the offence of murder, or for any felony, arising from circumstances that occur in the execution of their duties, in the absence of a ruling from the [DPP] that the member be so charged.

[3] A Declaration that under the Police Services Regulations 1961, sections 31 and 33, now in force under and pursuant to the Constitution, the [1 st respondent] cannot lawfully charge any member of the Jamaica Constabulary Force, or of the Island Special Constabulary Force, or any District Constable, for any criminal offence, or for the offence of murder, or for any felony, arising from circumstances that occur in the execution of their duties, in the absence of a ruling from the [DPP] that the member be so charged.

[4] A Declaration that any act by the [1 st respondent] to charge any member of the Jamaica Constabulary Force, or of the Island Special Constabulary Force, or any District Constable, for any criminal offence, or for the offence of murder, or for any felony, arising from circumstances that occur in the execution of their duties, in the absence of a ruling from the DPP that the member be so charged, would likely contravene the rights of such a member under sections 13(a) and 15 of the Constitution in that it would deprive such member a Legitimate Expectation, derived from the practice and custom of the DPP, that such member would not be so charged in the absence of such a ruling.

[5] A Declaration that any act by the [1 st respondent] to charge any member of the Jamaica Constabulary Force, or of the Island Special Constabulary Force, or any District Constable, for any criminal offence, or for the offence of murder, or for any felony, arising from circumstances that occur in the execution of their duties, in the absence of a ruling from the DPP that the member be so charged, would likely contravene the rights of such member, under Section 15 of the Constitution, not to be unlawfully deprived of the member's personal liberty.

[6] Interim Relief by way of an injunction to restrain the [1 st respondent] 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 Special Constabulary Force, or of the Rural Police, for or on account of any criminal offence, or for the offence of murder, or for any felony, arising from circumstances that occur in the execution of their duties, in the absence of a ruling from the DPP that the member be so charged.

[7] All necessary and consequential directions.” (Underlined as in original)

5

The grounds upon which these orders had been sought are, inter alia that:

“[1] The [1 st respondent] has claimed and has purported to exercise a power of arrest and charge for the criminal offence of murder against members of the Federation and of the aforesaid associations and of the Jamaica Constabulary Force, and has grounded his power under Section 20 of the Act, and under common law.

[2] The claim and exercise of power aforesaid are in violation of the constitutional provisions referred to above, for the following reasons:

(a) they are not, on any reasonable interpretation of the Act, against sections 13(a) and 15 of the Constitution, founded therein, nor under common law.

(b) they are repugnant to the procedure and guidelines set out in the Police Service Regulations 1961.

(c) they violate the legitimate expectation of the [appellants] and their members to a ruling from the DPP whether they should be arrested and/or charged for Murder or any criminal offence.

[3] This claim is made under Section 25 of the Constitution of Jamaica and involves the interpretation of the Act generally, particularly section 20 thereof, and the sections referred to in the said section 20.” (Underlined as in original)

6

The claim form was supported by a joint affidavit filed on 10 October 2011, and sworn to by the appellants' various representatives and Corporal Malica Reid. Corporal Reid deponed inter alia, that he had been arrested and charged by an investigator from INDECOM for the murder of Frederick Mickey Hill in Negril in the parish of Westmoreland on 4 November 2010. He averred that he was detained at the Savanna-La-Mar Police Station, and placed before the Parish Court where he was fingerprinted. He further deponed that on 1 March 2011, the 1 st respondent in addressing the Parish...

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