VETERAN physician and outgoing fourth vice-president of the Jamaica Athletics Administrative Association, Dr Winston Dawes, has cautioned against any move to grant the Independent Commission of Investigations (INDECOM) powers to arrest and prosecute in addition to its investigative powers.

In a letter to the Joint Select Committee of Parliament reporting on the INDECOM Act, Dr Dawes argued that “it is dangerous to hand that level of power and authority to any body without oversight and interaction with other established agencies”.

According to Dr Dawes, while the powers of independent investigation should not be argued, the ability of arrest and prosecution combined with that function is a “dangerous concentration of power”.

He also questioned whether INDECOM, on arresting a police officer, will command the commissioner of police of the correctional services to provide jail space or whether they will have their own jails.

Dr Dawes also wanted to know if, in a case where INDECOM decides to prosecute, it would demand space in the courts from the chief justice in preference over other cases.

“When the police investigate a case they have to interface with the director of public prosecutions who then looks at the merits before there is a court case. INDECOM would have all these powers without any oversight. If there is any bias against one or many police officers, then they could fabricate evidence, arrest and bring to trial the accused,” he said.

Dr Dawes noted that although at trial the officer may be found innocent, the stress could have long-lasting negative effects on their health.

Addressing the committee during its sitting at Gordon House in downtown Kingston on Wednesday, Dr Dawes said granting the powers of arrest and prosecution to the commission left the possibility for persons to use their powers “in a biased way”.

“The part of it with investigations I have no problem, but the problem that bothers me is, if power is given to them for arrest and prosecution there is no oversight, and I think it is possible for there to be abuse of power, because if there is a bias to one or many police officers, evidence may be tampered with,” Dr Dawes said.

“We already have public agencies which take care of these; for the powers of arrest and incarceration there is the police commissioner, there is the director of correctional services; and for prosecutions there is the director of public prosecutions. We should not bypass these lightly unless there is some dire emergency,” he added.

Said Dr Dawes: “Although, for the moment, we might have people who are honest, the possibility exists that in the future there might be people who are dishonest and will use their powers indiscriminately and in a biased way.”

But INDECOM’s Commissioner Terrence Williams responded by saying that a fundamental misunderstanding was at the base of Dr Dawes’criticisms.

“Dr Dawes’ submission assumes that currently prosecutions in Jamaica are all initiated by the police having interaction with the DPP before prosecution is launched and that INDECOM, by operating in a manner without such interaction with the DPP, would be operating in an extraordinary way without oversight,” Williams told the committee.

He said out that on the contrary, 90 per cent of prosecutions in Jamaica are initiated by the police without any involvement by the DPP.

“There is no concern with the DPP, there is no DPP permission, the DPP would know nothing about the prosecution and this includes the more serious offences such as murder.

“All prosecutions in Jamaica commence with oversight in that the prosecutor is the person bringing the prosecution, who in most cases is a policeman but can be an ordinary citizen, going to the justice of the peace or to the clerk of the courts or a resident magistrate and saying ‘here are the allegations, I would like for a charge to be laid against this person and a summons or warrant issued for the person’,” he explained.

“The JP is supposed to listen to the allegations and exercise his or her own judgement, and if so sign the information, thereby making the charge good and issue the summons or the warrant. So it is not true to say that INDECOM launching a prosecution would be without oversight,” Williams said.

“It would be the same way that a police officer or an ordinary citizen launches a prosecution. In the same way the DPP can intervene and take over the prosecution or end the prosecution. That is the oversight in our constitution, it is no different for INDECOM or the police,” he said.

Commissioner Williams said the reason it might be difficult for some persons to understand is that they perceive that the DPP’s office is in charge of every prosecution in Jamaica, which is a falsity.

“The DPP is the supervisory prosecuting authority in Jamaica, it prosecutes many of the cases in Jamaica but many more are prosecuted by the clerk of the courts and by private prosecutors.

“It is a manifest falsity to say INDECOM launching a prosecution would be without oversight,” Commissioner Williams maintained.

On the question of arrest and charge, he said “it is an absurdity that INDECOM, an independent investigator, investigates an incident and when it comes to the charging and arrest stage would then send the file back to the agency they are investigating and say to them, ‘would you consider charging’?”

The commissioner also said “there is no need for INDECOM to have separate remand facilities”.

On Wednesday, Lieutenant Colonel Patrick Cole, chief legal officer for the Jamaica Defence Force, argued that there should be a separation in the presentation of the evidence.

“There needs to be a firewall between investigation and charge and presentation to ensure procedural fairness,” he insisted.