Appeal filed against ruling on INDECOM powers

BY PAUL HENRY Coordinator - Crime/Court Desk

Wednesday, October 02, 2013

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AN appeal has been filed against the decision of the Constitutional Court in July that the Independent Commission of Investigations (INDECOM) has the power to arrest, charge and prosecute the police without the customary ruling from the Director of Public Prosecutions (DPP).

"The commissioner and the investigative staff of INDECOM have the power of arrest both under common law and by virtue of the [INDECOM] Act, having being conferred with the powers of a constable," said the conclusion of the 124-page ruling.

"The commissioner and investigative staff have the powers at common law to charge and initiate prosecutions of members of the police force. There is no requirement for a ruling of the DPP before members of the police force are arrested and charged by officers of INDECOM," added the ruling handed down by Justices Horace Marsh, Lennox Campbell and David Fraser.

But in September, the Jamaica Police Federation, Merrick Watson (chairman of the Police Officers Association), the Special Constabulary Force Association, and Delroy Davis (president of the United District Constables Association) made good on their promise to contest the decision of the court.

The appellants listed a number of grounds for appeal including:

* that the court wrongfully failed to recognise or accept that by the clear and express words of section 20 of the Act, in conferring the powers of a constable on the commissioner of INDECOM, the Act restricted those powers to facilitate only the investigative duties of the commissioner; and

* that the court wrongly failed to give sufficient regard or recognition to the long-standing practice and custom of the DPP to issue a ruling before members of the police force can be arrested and charged for criminal offences arising from circumstances that occur in the execution of their duties. The court, they contend, also "failed to give sufficient regard to the legitimate expectation of the appellants to such a ruling".

The appellants are seeking several orders, among them:

* A declaration that section 20 of the INDECOM Act, constructed against the provisions of Sections 13(a) and 15 of the Constitution of Jamaica does not confer on the commissioner of INDECOM the power to arrest anyone in general, or a member of the JCF or the ISCF or a District Constable in particular, for any criminal offence;

* A declaration that the common law does not confer on the commissioner, the power to charge a member of the JCF or the ISCF or a District Constable in particular, for any criminal offence 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; and that

*Any such action without the ruling of the DPP "would contravene the rights of such a member under sections 13(a) and 15 of the Constitution, in that it would deprive such member of 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 and would constitute an unconstitutional deprivation of the member's personal liberty".




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