INDECOM-Police Fed battle not quite over
Court could be asked to review past cases in light of Privy Council ruling, says Rowe
THE JAMAICA Police Federation will be heading back to court to test the impact of yesterday’s Privy Council ruling which reaffirmed a 2018 Court of Appeal ruling in its favour, that the Independent Commission of Investigations (INDECOM) does not have the power to arrest or prosecute members of the Jamaica Constabulary Force or its auxiliaries.
Chairman of the Police Federation, Sergeant Patrae Rowe, told The Gleaner that cases which preceded this judgment would have to be assessed with a view to getting the courts to make a decision in light of the Privy Council ruling.
“I know that some work is being done in that regard, so we wait to see what are the implications of this ruling on those cases,” Rowe told The Gleaner.
“It is a full victory for us, and certainly, we are not gloating, but we are happy that this matter is settled once and for all, and all parties can now carry out their duties without consideration for what is the prescriptive direction in law on this matter. So the Police Federation welcomes the judgment and we are happy that at least this aspect of it is settled,” he said.
The judgment was in respect of an appeal brought by INDECOM against a Court of Appeal ruling into the fatal shooting of Frederick Mikey Hill by the police on November 4, 2010. Following an investigation, INDECOM initiated the prosecution of Corporal Malica Reid for Hill’s murder, after which the respondents brought an action seeking administrative orders and constitutional redress under Section 25 of the Constitution that the commission had exceeded its powers.
The Court of Appeal held that the neither the act nor common law authorised the commission or its commissioner or staff to initiate the prosecution of an offence which had been the subject of an INDECOM investigation. INDECOM then took the matter to the London-based Privy Council, Jamaica’s final appellate court.
Director of Public Prosecutions (DPP) Paula Llewellyn, with whom the INDECOM boss has had a history of clashes, said she was not surprised by the Privy Council’s decision.
“I had always thought that as a matter of law that that judgment would have been upheld. I have no surprises in respect of the findings of the Privy Council,” she said. “They have affirmed and confirmed my understanding of the legal issues.”
Meanwhile, INDECOM has not given up on the fight, citing a lack of clarity in the INDECOM Act as a stumbling block and pinning its hope on legislators for a favourable resolution.
“The time is now apt for Parliament to clarify the provisions of the INDECOM Act to fulfil the promise of full, independent police accountability by the reforms [contained] in the Joint Select Committee of Parliament Report of 2015,” INDECOM Commissioner Terrence William told The Gleaner.
He explained that given the importance of police accountability and the lack of clarity in the act, the commission had to take action to have the matter resolved.
Jacqueline SamuelsBrown, QC, one of the lawyers who represented the Police Federation in London, pointed out that the Privy Council ruling has settled the matter for good.
“While the judges of the Privy Council recognised that like every other private citizen INDECOM officers may initiate private prosecutions, the court has made it clear that these officers are not permitted by the law to use information gathered in the course of an INDECOM investigation to launch a private prosecution,” she said.
“The judges of the Privy Council have been specific in declaring that the power to prosecute INDECOM investigated offences remain strictly with the Office of the DPP.”