CHAIRMAN of the Police Federation Sergeant Raymond Wilson has charged that the interpretation of the Act governing the Independent Commission of Investigations (INDECOM) has resulted in the unfair and unjust treatment of the police as well as the removal of certain of their rights.
In a submission last week to the Joint Select Committee of Parliament charged with reviewing the Act, Sergeant Wilson said while the federation accepted the principle of police oversight and are very much in favour of the principle of an independent body whose remit is to carry out investigations into allegations of misconduct by the police in the lawful course of duty, it was at odds with the agency on several fronts.
"We believe that that Act and its interpretation by INDECOM have resulted in unfair and unjust treatment of members of the police force during the conduct or course of an investigation. The manner in which the Act is interpreted and enforced by INDECOM has disregarded due process and has literally resulted in the removal of certain rights from members whose conduct may be under investigation," he told the committee.
Wilson said that the federation's first point of concern was with the point at which INDECOM becomes involved in an investigation. "We think that INDECOM's early control of the investigative process when a police officer is involved in an event that results in the loss of life or injury to a citizen has created an undue burden on our members," Wilson said. "Indeed it results in our members being treated as criminals; suspects from that early stage every time they are involved in such events. We want to make it clear that if there is evidence that creates a need for such an investigation and they are treated as suspects we have no quarrel. We in effect operate under the burden or the presumption of guilt as we are seeing it and we believe this must be remedied," he contended.
In proposing a remedy to the problem of the presumption of guilt, the Jamaica Police Federation chairman said the Act should clearly distinguish and define two types of investigations -- administrative and criminal.
"We are submitting
that this (administrative investigation) ought to be an investigation that holds a police officer to give an account for the act or omission resulting in the death, injury or breach of human rights of a member of the public, but an investigation where none of the materials gathered and used should be transformed into evidence that can be used against such member should it become necessary to conduct a criminal investigation. We are recommending that the Police Civilian Oversight Authority be given full oversight of this administrative investigations process," Wilson told the committee. "We propose that INDECOM conduct criminal investigations and not administrative investigations".
Noting that "the posture of INDECOM at all stages of the investigation is prosecutorial", the federation chairman said considering that an incident must involve an act of misconduct for same to fall within the remit of INDECOM , it was left to conclude that INDECOM has been acting ultra vires of the Act.
He said: "If INDECOM is allowed to continue to conduct both administrative and criminal investigations and to have the power to arrest and prosecute then the rights of the concerned officer will continue to be infringed."
According to Wilson, research conducted to determine the results of the "unfair application of the Act" on police officers had shown that police officers were fearful that they would be arrested at the scene of fatal shootings or other incidents. "This is so because INDECOM does not initiate such investigation on the basis of any reported misconduct but rather simply because a fatal shooting or such incident took place," he said.
Commissioner of INDECOM Terrence Williams, responding to the suggestion that INDECOM conduct criminal investigations and not administrative investigations, said this would be a breach of the right to life of the person killed. "The jurisprudence says investigations must start promptly so we cannot wait for an administrative investigation conducted by the police before we start. The jurisprudence also says members of the security forces must give their statement promptly. So if we were to follow what Chairman Wilson says we would fall back into bad practice and the Jamaican police force would be acting in a way which would be unconstitutional and we would fall back into a position that we were in before," he insisted.
In the meantime, Wilson said members reported great mental stress brought on just by thinking about their personal welfare and inability to finance legal representation. According to the Police Federation head, INDECOM has been using coercion to compel members to give statements without the benefit of persons having legal consultation.
According to Wilson, the frequent demands by INDECOM for members, especially operation support units that play a critical role in high crime areas, to visit their offices in pursuance of their investigations have significantly depleted the operational strength of these units.
"The manner and methodology employed by INDECOM could seriously compromise national security especially if confidential sources are revealed," Wilson added.
He said there were clear instances which suggested that INDECOM in their quest to prosecute police officers would go to any length to obtain information, even if it means compromising confidential sources.