Two leading United States investigators were in Jamaica last week to determine whether “Constable John Doe”, a double agent who worked in the top secret interception facility in Kingston, had illegally passed on wire-tap information to the US authorities in the case of Ortavia Lamandez Austin, also known as “Mandez”, a Jamaican living in the USA, as he did in the case against Christopher “Dudus” Coke.

The investigators are lawyer Ephraim Savitt and Gerard Gardner, head of Gardner Investigative Services, both of New York. They have been appointed by the United States District Court, Eastern District of New York, to investigate the matter. The federal government is meeting the cost of their investigation and mission to Jamaica which demonstrates the extent to which the Americans will go to pursue the course of justice.

Constable John Doe, a member of the Jamaica Constabulary Force, not only worked in the multinational interception facility, but was also a covert agent for the US Drug Enforcement Agency and it is believed that he illegally passed on intercepted communications concerning other wire-tapping. He is now living and working in the USA.

He signed and sworn to an affidavit on May 14, 2009 in which he alleges to have been personally involved in authorised wire-tap investigations in Jamaica during the period April 2007 through October 2007. He alleges also that based on that involvement, he is able to confirm the recordings referred to in the affidavit of a cooperating witness as telephone calls that were recorded in Jamaica pursuant to court authorisation, from April 2007 to October 2007. He was not authorised to do so.

The Interception Act sets out the legislative mechanism for the interception of communications. The purpose of the mechanism is to preserve the overarching constitutional right of freedom of expression. Intercepted communications require a warrant issued by the Supreme Court upon an application under the Communication Interception Act by an “authorised officer”, that is, the commissioner of police, the officer of the Jamaica Constabulary Force in charge of internal security or the National Firearm and Drug Intelligence Centre, chief of defence staff or head of the Military Intelligence Unit of the Jamaica Defence Force. When a warrant is received and communication is intercepted, such communication is subject to strict control.

The Act states that an “authorised officer” may apply to a judge for a warrant authorising the person named in the warrant to disclose the communications to such persons and in such a manner as may be specified in the warrant. The Act also states that it is a criminal offence, subject to imprisonment, to disclose the existence of a warrant or an application for a warrant, other than to a person to whom such disclosure is authorised under the Act. When Constable John Doe of the Jamaica Constabulary Force disclosed the evidence to the US Grand Jury, he did not have the authority of the Jamaican judge to do so. Nor is the Grand Jury one of the persons mentioned in the Act to whom the information can be disclosed. Therefore, under the laws of Jamaica, Constable John Doe may be subject to criminal proceedings under the Act for having disclosed the existence of a warrant to persons who are not subject to disclosure.

The wire-tap evidence referred to in John Doe’s affidavit is inadmissible under the domestic laws of Jamaica, particularly the Interception of Communications Act. Any request for an extradition founded on evidence obtained in contravention of the Act could not support criminal proceedings in Jamaica. Some lawyers argued that what is inadmissible in the court of the requested country (Jamaica) should not be admissible in the court of the requesting country (USA).

In the case of Austin, a judge of the Supreme Court issued a warrant in 2006 authorising a telephone company to intercept all telephone communications to and from a cell number and to furnish all intercepted communications to one of the authorised officers.

Austin, who is from Rockfort in Eastern Kingston, and others were indicted by the Grand Jury in New York on several drug charges.

The charges are that:

*Between August 1, 2004 and October 22, 2009 he, together with others, did knowingly and intentionally conspire to distribute a controlled substance knowing that such substance would be unlawfully imported into the USA from a place outside thereof, which offence involved 1,000 kilogrammes or more of a substance containing marijuana.

* Between August 1, 2004 and October 22, 2009 he, together with others, did knowingly and intentionally conspire to import a controlled substance into the USA which offence involved 1,000 kilogrammes or more of a substance containing marijuana.

* Between October 3, 2007 and October 10, 2007 he, together with others, did knowingly and intentionally attempt to distribute a controlled substance, knowing that such substance would be unlawfully imported into the USA which involved 100 kilogrammes or more of a substance containing marijuana.

* On or about October 7, 2007 he, together with others, did knowingly and intentionally attempt to import a controlled substance into the USA which offence involved 100 kilogrammes or more of a substance containing marijuana.

* On or about and between September 1, 2008 and September 13, 2008 Austin, along with Derrick Magnus, also known as “Brownman”, together with others, did knowingly and intentionally distribute a controlled substance, knowing that such substance would be unlawfully imported into the USA, which offence involved 1000 kilogrammes or more of a substance containing marijuana.

* On or about September 13, 2008 he and Derrick Magnus, together with others did knowingly and intentionally import a controlled substance in the USA, which offence involved 1000 kilogrammes or more of a substance containing marijuana.