Privy Council rules in favour of Jamaicans for Justice

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Privy Council rules in favour of Jamaicans for Justice

Monday, March 25, 2019

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LONDON, United Kingdom (CMC) — The London-based Privy Council today upheld an appeal by the human rights group, Jamaicans for Justice (JFJ), challenging the decision of the Police Service Commission (PSC) to promote a former police officer despite allegations of his involvement in extra-judicial killings.

In its ruling, the Privy Council, the island's highest court, acknowledged however that the ruling was “academic” since Senior Superintendent Delory Hewitt has since retired.

The PSC had promoted Hewitt from superintendent to Senior Superintendent in 2011 and the JFJ had asked that the PSC should have made it a duty to ensure that allegations of extrajudicial killings against such an officer are fully and independently investigated before accepting a recommendation that he be promoted.

The PSC had sought a review of the allegations from the Commissioner of Police, who forwarded a brief report prepared by the Bureau of Special Investigations (BSI) of the Jamaican Constabulary Force (JCF). But the PSC did not send the report to JFJ and later issued a claim for judicial review, seeking to quash the PSC's decision to recommend Supt Hewitt for promotion and to require it to conduct an effective and impartial investigation into the allegations of misconduct against him.

Before the Court of Appeal the focus had shifted to requiring the PSC to cause such an investigation to be undertaken by INDECOM, the independent complaints commission set up under the Commission of Investigations Act 2010. The claims failed in the courts below.

Lady Hale, who read the ruling of the Privy Council, noted that the purpose of setting up the PSC under section 129 of the Constitution of Jamaica is to insulate the JCF from political influence.

She said when recommending officers for promotion, the PSC is governed by the Police Service Regulations 1961, which allow the PSC to consult with any public officer it considers proper and desirable and require the attendance of witnesses or production of documents.

It has the power to call for a report from the Independent Commission of Investigations (INDECOM).

But she noted that the issue is whether there is any duty, either at common law or under the Constitution, to make that inquiry before making a decision.

“The PSC, like the JCF and INDECOM, must exercise its functions in a manner which is compatible with the fundamental rights of all persons, including the right to life, the right to equality before the law and the right to due process of law, guaranteed by section 13 of the Constitution.”

The Privy Council said that it is disposed to accept that the right to equality before the law affords every person protection against irrationality, unreasonableness, fundamental unfairness or the arbitrary exercise of power.

“These are in any event fundamental common law principles governing the exercise of public functions, and applicable in this case irrespective of whether they have the status of a constitutional right.”

Lady Hale said the common law provides a straightforward answer to the question of whether the PSC gave proper consideration to the recommendation to promote Supt Hewitt, without exercising its powers to call for further inquiries, when it knew that serious allegations had been made against the officer and that no independent investigation had taken place.

“There was no statutory duty to do so, but a proper discharge of the PSC's functions did require it.

“While the level of serious violent crime in some parts of Jamaica was a grave concern, there was also a grave concern, both nationally and internationally, that some members of the JCF were overly inclined to take the law into their own hands in dealing with it, risking violations of the right to life, to due process of the law and to equality before the law of the people involved. Supt Hewitt was involved in a large number of fatal incidents and no independent investigation had taken place.”

The Privy Council said that the PSC had the power to ask INDECOM to investigate, and such an investigation might reveal a different picture from the brief information with which the PSC had been provided.

“The final decision would still be that of the PSC, but there was a reasonable prospect that a properly informed PSC might have made a different decision,” the Privy Council ruled.

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