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INDECOM eyes Privy Council

Commission may challenge court ruling that it has no power to arrest, prosecute cops

BY TANESHA MUNDLE
Observer staff reporter
mundlet@jamaicaobserver.com

Saturday, March 17, 2018



THE Independent Commission of Investigations (INDECOM) is now considering going to the Judicial Committee of The Privy Council in London following a ruling by the Court of Appeal that the commission does not have the power, under the INDECOM Act, to arrest, charge or prosecute any member of the Jamaica Constabulary Force (JCF) or any other person.

The ruling was handed down by the court yesterday in a two-to-one split decision.

However, at the same time, the Appeal Court also ruled that the commissioner and individual investigators from INDECOM have powers at common law to arrest, charge and prosecute without the permission of or a ruling from the director of public prosecutions (DPP).

In a release yesterday, INDECOM said, while it accepts the court ruling in part, it will be reviewing the ruling which states that INDECOM does not have the power under Section 20 of the INDECOM Act to prosecute, arrest or charge, and a decision will be made regarding appeal.

Members of the police force and INDECOM have been battling in court for years over whether INDECOM has the legal right to charge them.

As a result, the Police Federation mounted a challenge to INDECOM's powers under the Act and, following a ruling by the Constitutional Court in 2013, it went to the Appeal Court.

Lawyers who represented the Police Federation had argued that INDECOM had been usurping the powers of the (DPP) in bringing charges against members of the JCF.

In the meantime, the Court of Appeal, in its majority decision, also ruled yesterday that, based on Section 20 of the INDECOM Act, Commissioner Terrence Williams and his investigators only possess the power to investigate and make recommendations.

The majority decision stated that the Act does not nullify the common-law right possessed by INDECOM's head and its investigators, in their respective private capacities, to initiate private prosecution against any person for any criminal offence under Section 33 of the Act.

The court said further that INDECOM and its investigative staff may exercise their private rights at common law without first obtaining a ruling or permission from the DPP.

But, following the ruling yesterday, the Police Federation claimed the decision as a victory for the police and other members of the force, including district constables, while DPP Paula Llewellyn said the ruling did not surprise her.

Chairman of the Police Federation Cecil McCalla said: “The Police Federation central executive and also the rank-and-file members of the constabulary force, we are extremely happy for the landmark ruling. The Police Federation has been the lone voice in the wilderness from 2010 asking for the INDECOM Act to be reviewed because we believe it breaches the right of the police, hence we are really happy.”

Llewellyn, for her part, said, “I am not surprised, we are dealing with the law,” but declined to expound on why she was not surprised.

The Government prosecutor, however, said she has always been of the view that INDECOM, like the JCF, should have an oversight body, which would deal with concerns about abuse of process and abuse of power.

Nevertheless, the DPP emphasised that her office is always ready to render assistance to INDECOM or any investigative body in the execution of their duties.

Meanwhile, the Appeal Court yesterday also quashed the conviction of Deputy Superintendent of Police Albert Diah.

He was convicted of breaching the INDECOM Act.

Deputy Superintendent Diah was convicted in 2014 of interfering in an INDECOM probe and was fined $800,000.

He was accused of preventing members of a police team involved in a fatal shooting from handing over their weapons to INDECOM investigators in Central Village, St Catherine, in 2013.

But DSP Diah appealed his conviction on the basis that INDECOM did not have the authority to prosecute him.

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