Some drivers rarely miss an opportunity to flash their headlights and warn other motorists of the presence of a police speed trap. For years the police have been trying to stop this practice through moral suasion. They have lamented the fact that, unlike other countries, there is no law in Jamaica which would allow them to prosecute persons who insist on informing on the police. But is this really so?

While it is true that Jamaica doesn’t have legislation that expressly deals with this practice, one wonders why the police have not sought to charge these persons (“flashers”) with obstructing a constable, which is an offence under the Constabulary Force Act punishable by fine or imprisonment.

There are English authorities that are clear on the point. In one case, a lorry driver who was aware that he was coming upon a speed trap, tried to warn drivers who were overtaking him to slow down by waving his hand outside his window. None of the drivers he warned were stopped by the police. Instead he became Quaco’s Shirt and was charged with obstruction of a police constable in the execution of his duty based on a provision in the English law that is almost identical to the provision in our Constabulary Force Act. The Court found that there were 3 questions to be answered – (1) was there any obstruction of the constable? (2) was the constable acting lawfully in the execution of his duty? and (3) was the obstruction intended to obstruct the constable in the execution of his duty?

In considering the case, the Court confirmed that the proper meaning of the word obstruct in the context of the English Act is to “do any act which makes it more difficult for the police to carry out their duty”. Although the lorry driver’s defence was that he was signaling a turn and then changed his mind, the Court was convinced that he intended to warn other drivers and thereby obstruct the police. They were careful to draw a distinction between cases where someone warns another with the intention of preventing the commission of a crime, from cases where a crime is being committed, or is likely to be committed, and the warning is given so that the crime may be suspended while there is danger of detection. They found the lorry driver fell into the latter category.

In spite of his bad intentions, it turned out that none of the drivers whom he warned were actually speeding (probably because they were stuck behind his slow-moving lorry), none appeared likely to break the speed limit, and none of them slowed because of his signaling. The lorry driver got off since the Court found that there was no obstruction of the police, only an attempt to obstruct and that was not an offence. The irony is that if all the drivers he warned were foolish enough to get caught speeding anyway, he might have gotten off as the police would not have actually been obstructed at all.

Some flashers may argue that they don’t know as a fact that the person is speeding and therefore they don’t really intend to obstruct the police. It’s true that it might involve some amount of guesswork, not least of all because one must be travelling at least 10 mph over the speed limit to be charged with speeding under our Road Traffic Act. But the English Court has stated that it is equally an offence to tip-off a person who is likely to commit an offence as it is to warn someone who’s already broken the law. A constable’s duty extends to the prevention of crimes that have not yet been committed, and so the tipping-off may obstruct him if his duty includes the observation of a person’s usual conduct. Thus, in a case where a plain-clothes policeman went into a bar to observe if drinks were being sold past the permitted time, he was obstructed by someone else who recognized him and tipped-off the bartender so that they stopped serving drinks before an offence could be committed. It would seem, therefore, that a driver who flashes his lights at another driver and causes him to slow down may be found to have obstructed the police even if the speed limit is never actually broken, so long as it was likely to have been broken but for the success of the warning.

The police have also complained that apart from warning drivers of speed traps, some drivers are giving away the locations of their check points and thereby allowing serious criminal activity to escape the police dragnet. This raises the question of whether a person who obstructs a constable needs to be aware of the duty that the constable was carrying out at the time. A prosecutor might argue that if someone knowingly obstructs the police, then he ought to be accountable notwithstanding his ignorance of the particular crime that might have been uncovered but for his actions. Aside from the legal issues and the chances of a successful conviction, the mere possibility of having to answer criminal charges should be a deterrent in itself. That is, if moral suasion wasn’t enough.

It’s not clear why the police have formed the view that the law doesn’t permit them to charge flashers for obstructing a constable in the exercise of his duty. Should that view change, don’t expect any warning.

Gavin Goffe is an Associate at Myers, Fletcher & Gordon and a member of the Firm’s Litigation Department. Gavin may be contacted at gavin.goffe@mfg.com.jm or through www.myersfletcher.com