13 years later, no charges in police-involved father, son killing


13 years later, no charges in police-involved father, son killing

Senior staff reporter

Tuesday, June 23, 2020

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FORMER deputy spokesman on justice for the Jamaica Labour Party Harold Malcolm says 13 years after his brother, Winston Malcolm, and nephew were killed in an incident involving the police, his family continues to suffer as charges are yet to be laid despite the Coroner's Court giving the go-ahead in 2015.

Malcolm broke down during a forum hosted by human rights advocacy group Jamaicans for Justice (JFJ) yesterday, calling for legislative reform to allow the Independent Commission of Investigations (INDECOM) to initiate prosecutorial proceedings as part of its mandate.

He said the delays in the system have compounded the grief and suffering of the family more than a decade after his 44-year-old brother and 20-year-old nephew Winston Malcolm Jr were killed in their home.

“The family still mourns ... This is 13 years ... Somehow you think you've adjusted, you think you've healed... We have not been able to celebrate a Father's Day with my brother, who had three daughters who had to grow up without him; my nephew never got the chance to lead a life. We have a system, which the delay itself inflicted pain and hurt and frustration on us. Witnesses are wary, many we don't know where they are. We need a system which is expedited, which can move much more swiftly,” Malcolm stressed.

He explained that two police officers were held “slightly accountable” with the Coroner's Court having ruled in 2015 that they should be charged with murder. However, he said that journey was a long one fraught with frustration, recounting the constant moving of sittings of the court across parishes, months apart, and the stress of coordinating witnesses, “so you can imagine the logistics of moving around... eventually after eight years [when] we got a ruling from the Coroner's Court; we were in Half-Way-Tree. Even the physical courthouses that we had to go to and the delays, and the various places we had to go, that took a toll [on us],” he said.

Malcolm said he felt a decision could have been made in the case by the Office of the Director of Public Prosecutions (ODPP).

“But that is the prerogative of the DPP's office, so the matter was sent to the Coroner's Court... After several months, we got a ruling from the Coroner's Court that these two police officers should be charged... and the judge sent the verdict of the jury to the DPP. We are in 2020 and we haven't got anywhere past that.

“The politicians and those who are in authority continue to fiddle while we burn... I wonder at what stage are we going to have the level of accountability that we need to have?” he said.

Malcolm is of the view that even with the additional resources that have been allocated to the ODPP, there is no significant impact on the systems.

“I don't see the difference, in terms of how things move through the system,” he said.

Malcolm said he is hopeful that Prime Minister Andrew Holness will use his office to make some real changes in the justice system, in order to hold police officers accountable.

“It is also important for them [the police]... to move on with their lives too. We need a strong oversight body; we need an INDECOM that can move cases forward, because the system that we have now is not serving Jamaica,” he insisted.

Marcia Fraser, the mother of Mario Dean who died after reportedly being beaten while in police custody in 2014 after he was arrested for a marijuana spliff, also pleaded for INDECOM's powers to be expanded to allow it to take matters through the courts. She said the commission's hands are tied and “we are going to fight for them”.

In May, the United Kingdom-based Privy Council ruled against INDECOM in its appeal to initiate criminal prosecutions, but the court also ruled that the commission has the power to bring action where its investigations are being obstructed without lawful justification.

The panel of judges said INDECOM does not have the power to arrest, charge or prosecute, as there is nothing in the 2010 Act that brought the commission into being to suggest that it was intended that it should perform any function in relation to the prosecution of incident offences.

Meanwhile, JFJ yesterday pointed out that the Privy Council decision was not about whether INDECOM should have these powers, but strictly about whether the present wording of the law gives it those powers.

JFJ contended that without the basic powers of being able to initiate proceedings similar to the police, the police itself would have to agree to charge and arrest themselves, secure court dates for, and bring their own officers to court. JFJ argued that the police cannot be expected to execute these duties against their peers without favourable bias, and that this opposes the concept of independent oversight.

The human rights lobby group claimed that, prior to the establishment of INDECOM, this was the type of procedure that existed, which saw a widespread and well-documented culture of impunity in the JCF. It stressed that regressing to this situation would make police oversight meaningless, and render INDECOM impotent, as it would only be able to conduct investigations and provide recommendations, with enforcement left to those implicated in the wrongdoing.

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