Green light
REEN... was returned to Cabinetearlier this month although the Officeof the Director of Public Prosecutionshad not yet ruled on his attendance ata party during a no-movement day
DPP rules that Government minister should not be charged for no-movement day party

MINISTER without portfolio in the Office of the Prime Minister Floyd Green will not face criminal charges for his alleged participation in a birthday party on a no-movement day last September.

Green, the Member of Parliament for St Elizabeth South Western, walked away from the Cabinet, where he was serving as the minister of agriculture, amidst public outrage after a video surfaced with him at a birthday party, which was reportedly staged for his personal assistant, Gabriel Hylton.

He was returned to the Cabinet by Prime Minister Andrew Holness in a recent shuffle and given the portfolio responsibility for the National Identification System despite the possibility that he could be charged for breaching the Disaster Risk Management Act (DRMA) for his presence at the party on a no-movement day.

But yesterday news came that the Office of the Director of Public Prosecutions (ODPP) has told the police that it has found no basis to charge Green and others who were allegedly at the party, including councillor for the Mona Division in St Andrew Eastern Andrew Bellamy.

It is understood that the ODPP told the Jamaica Constabulary Force of its decision last Friday.

According to Jamaica Observer sources, the case file submitted to the ODPP by the police included a video purportedly from the party but the island's chief prosecutor ruled that a viable prosecution would be difficult as there were no statements from the employees of the New Kingston-based hotel.

It is understood that the ODPP also found that Green and Bellamy were exempt from the no-movement day, based on the provisions of the DRMA.

Observer sources say the ODPP has also told the police that they may consider bringing charges against the management of the hotel for hosting the party but made it clear that this would need additional statements for a successful prosecution.

Green, after a video of the Moët Champagne party went public, offered his resignation to the prime minister.

“Today, I have disappointed so many; my family, including my son, my prime minister and most importantly, the people of Jamaica who I have sworn to serve.

“No matter how briefly, and regardless of the circumstances, I should never have participated in any engagement that could indicate a lack of appreciation of the difficult and serious realities that now face the entire country,” said Green, in his resignation letter released to the media.

“My actions have demonstrated a lack of sensitivity for the difficult realities that all of us are facing currently.

“It was wrong. I accept that this was an error in judgement and that it sends the wrong signal, especially in light of the Government's drive to reduce the spread of COVID-19. For this I am really and truly very sorry,” added Green.

His presence at the party was condemned by the parliamentary Opposition and civil society, but several Jamaicans, included his constituents, called for his return to the Cabinet.

Their wish was granted earlier this month when Prime Minister Holness returned the young lawyer to the Executive in a Cabinet shuffle.

After his return, he said: “I feel grateful because I have been given another opportunity to serve at this level. I think it is a real honour and a humbling experience… to be a part of the discussions that help determine the future of the country and especially at this time, so I am very grateful... I am grateful and humbled by the confidence the prime minister has placed in me to give me another opportunity at this level.”

He constituents were also happy to see him back.

David “Folby” Folb, an Englishman who owns and operates the Lashings Boutique Hotel and Villas in Treasure Beach, said Green's recall to the Cabinet was a sensible move.

“I'm not surprised; this is an outstanding, hard-working MP. I think Jamaica is a better place for people like him,” he said.

“Jamaica has got a first-class MP and minister. We are extremely lucky in this area to have him,” he added.

Opposition Senator Donna Scott Mottley, however, said she was disappointed with the way Green's return to the Cabinet was handled by Prime Minister Holness.

“There are several people in the Government who are well liked and admired on both sides, and I don't take any issue with his return to the Cabinet. I believe that he was doing a very good job in the position he held, but what is concerning to me is how the issue has been handled,” Scott Mottley, the deputy leader of Opposition business in the Senate, told the Upper House.

See full Legal Opinion by the ODPP below.

January 28, 2022

Mr. Anthony McLaughlin

Acting Assistant Commissioner of Police

Counter-Terrorism and Organized Crime Investigative Branch

45 East Queen Street

Kingston

Thru: Ms. Paula V. Llewellyn CD, Q.C

Director of Public Prosecution

Dear Mr. McLaughlin:

Re: Request for Legal Opinion in Alleged Breach (es) of the Disaster Risk Management Act committed on the 14 September 2021 at the R Hotel, New Kingston.

Background

Having consulted with the Learned Director of Public Prosecutions, I am directed to write regarding the matter at the caption and in relation to a case file which was submitted to our office on Friday the 15th day of October, 2021. The Office apologizes for the delay in preparing this written opinion.

This matter involves an alleged birthday celebration which is believed to have occurred on Tuesday the 14th day of September, 2021 at the R Hotel which is a licensed hotel under the Tourist Board Act. This function was allegedly attended by a serving member of parliament, as well as a councillor of a municipality, together with other individuals.

The 14th day of September, 2021 was declared by the Prime Minister to be a “No Movement” day by virtue of section 3 of the Disaster Risk Management Act No. 9 (Amendment 2) (No. 2) hereinafter referred to as “DRMA Order 9 Amendment 2”. Additionally, licensed hotels are obliged to adhere to strict rules and protocols which are contained in the Covid-19 Ministry of Tourism Health and Safety Protocols- Protocols for the Jamaica Tourism Sector 2020. These protocols have been incorporated into the Disaster Risk Management Act (Order) 9 by virtue of section 14(10) of this legislation which shall hereinafter be referred to as “The Principal Act”.

Recommendations

Having assessed the case file with enclosures and the legislative provisions under the Disaster Risk Management Act 2015 and the additional risk management measures which have been gazetted in Orders which have been implemented by the Prime Minister pursuant to the powers under section 26(2) of the Disaster Risk Management Act 2015, it is the considered view that no criminal charges ought to be preferred against Mr. Floyd Green, Mr. Andrew Bellamy, Ms. Gabriel Hylton and Mr. Dave Powell. However, it is the considered view that charges may be laid against the R Hotel for breaches of the Principal Act. Due to the high public interest and the nature of the persons involved, a detailed opinion has been prepared and is being issued at this time.

The Disaster Risk Management Act No. 9 (Amendment 2) (No. 2) - DRMA Order 9 Amendment 2

In preparing this written opinion, it was important to firstly examine the Disaster Risk Management Act, 2015 and in particular section 26(1)-(2) of this legislation. Section 26(1) states that where the Office of Disaster Preparedness and Enforcement Management reports to the Minister of the existence of a local condition in Jamaica which threatens to endanger public safety and that additional measures are needed to safeguard the public at large, the Minister shall give written notice to the Prime Minister.

The Prime Minister, having received such a report, is authorized to declare the whole or any part of Jamaica to be a disaster area. Further, the Prime Minister is also empowered to direct the enforcement of any measures recommended by the Office of the Disaster Preparedness and enforcement management, or any other measures which the Prime Minister deems expedient with a view to removing or managing the hazard or mitigating the harmful effects of the hazard.

On the 10th day of March, 2020, it was reported that Jamaica had recorded its first confirmed case of the Sudden Acute Respiratory Syndrome Coronavirus 2 (SARS-COV-2), hereinafter referred to as “Sars-Cov-2” within the Island. Sars-Cov-2 was reported as a virus which had been declared a global pandemic which had been spreading throughout the world. Following the report of this confirmed case within the Island, some three days later on Friday the 13th day of March, 2020, the Disaster Risk Management (Declaration of Disaster Area) Order, 2020 was gazetted.

By virtue of this Order, the Minister responsible for disaster preparedness and emergency management, having given written notice to the Prime Minister that Jamaica was threatened and being affected by the SARS- CoV-2, and that additional measures were needed to safeguard the society at large - Jamaica was declared to be a disaster area.

Disaster Risk Management Act Orders – SARS-COV-2

Following this declaration, several orders have been made by the Prime Minister under section 26 of the Principal Act. These Orders have been passed and gazetted from time to time under the rubric “The Disaster Risk Management Act, Order…”. Each Order outlines a list of measures which have been implemented to treat with the management of the Sars – Cov- 2; they all include a commencement date and the measures are given effect to a particular date which may be classified as the termination date. It must be noted that each order which has been gazetted must be read together with any subsequent orders which amend the Principal Order. It is important to appreciate this fact. For the purpose of this ruling, the Disaster Risk Management Act (Order 9) will be termed as the Principal Order which contained relevant provisions which remained effective at the material date of the 14th day of September, 2021. This Principal Order came into operation on the 11th day of August 2021. These measures were effective for the period August 11- August 31, 2021. However, there were subsequent amendments to this Order which ought to be read together with the Principal Act. These subsequent orders are as follows:

1. Disaster Risk Management Act (Order 9) (Amendment) Order 2021 came into operation on the 20th day of August, 2021. These measures were effective for the period 20th day of August – 7th day of September, 2021 and was to be read together with the Principal Act.

2. Disaster Risk Management Act (Order 9) (Amendment) (No. 2) Order 2021” DRMA Order 9 Amendment 2” came into operation on the 3rd day of September, 2021. These measures were effective for the period the 3rd day of September – 17th day of September, 2021 and were to be read together with the Principal Act and all further amendments to that Act.

Therefore, on the 14th day of September, 2021, the relevant legislative instruments which governed the Covid-19 protocols were contained in the Principal Order and the Disaster Risk Management Act (No.9) (Amendment) (No's 1 & 2), Orders 2021 which were passed on the 11th day of August, 2021 and the 3rd day of September, 2021 respectively. To be clear, section 1(1) of the Amendment No. 2 stated that it was to be read and construed as one along with the Disaster Risk Management Act No. 9 (Order 2021) which was dated the 11th day of August, 2021 and which expired on the 31st day of August, 2021, together with the further amendments made under the DRMA Order No. 9 Amendment 2.

The above Orders include specific provisions which treat with hotels and resorts which are licensed under the Tourist Board Act, as well as particular exemptions in respect of persons who hold specified offices within the country.

In this ruling, I will seek to examine the position of hotels under the DRMA and then examine the treatment of categories of persons under the legislative instruments.

Hotels & The Disaster Risk Management Act

Section 14(10) of the Principal Order, dated the 11th day of August, 2021, states as follows;

“…During the period from August 11, 2021, to August 31, 2021, only hotels and resort cottages (as those terms are defined in the Tourist Board Act) that are licensed under the Tourist Board Act and certified by the Tourism Product Development Company Limited shall operate, and shall do so only in accordance with the “COVID-19 Ministry of Tourism Health and Safety Protocols – Protocols for the Jamaica Tourism Sector 2020...”.

This provision was modified by virtue of section 2 of the DRMA Order 9 Amendment 1 states as follows:

“The principal Order is amended by deleting the words “August 31, 2021” wherever they appear and substituting therefor in each case the words “September 7, 2021”.

”The provision was further modified by virtue of section 2 of the DRMA Order 9 Amendment 2 states as follows:

“The principal Order is amended by deleting the words “September 7, 2021” wherever they appear and substituting therefor in each case the words “September 17, 2021”.

In light of the preservation of this provision which was contained in the Principal Order, it will be important to now explore whether the R Hotel was in fact licensed and if so, whether they operated in accordance with the Covid-19 Ministry of Tourism Health and Safety Protocols- Protocols for the Jamaica Tourism Sector 2020.

The R Hotel

The Director of Tourism, Mr. Donovan White, in a letter dated the 15th day of October, 2021, and which was forwarded to the Office of the Director of Public Prosecutions by Deputy Superintendent Badley, indicates that a Jamaica Tourist Board Hotel License was issued to Renfrew Management Limited to operate the R Hotel on the 8th day of October, 2020. We were also provided with a copy of the hotel license issued to Renfrew Management Limited. We are therefore satisfied that the facility was in fact permitted to remain in operation at the material time in spite of the “No movement day” restrictions which were imposed and in effect on the 14th day of September, 2021.

Although the facility was permitted to remain in operation, it is now important to explore whether the facility was being operated in accordance with the Covid- 19 Ministry of Tourism Health and Safety Protocols at the material time under investigation.

In examining the protocols, and seeking to interpret the relevant provisions, I have firstly assessed carefully the aims and objectives of the Protocols as outlined within the Protocols themselves. Within the introductory paragraph of the Protocols (Page 8 paragraph 2), it states as follows: -

“…Safe and resilient tourism has consistently been a foundation element of Jamaica's tourism industry. Tourists and Jamaicans alike have high expectations for Jamaica as a top Caribbean tourist destination. These protocols reflect the ongoing commitment to meeting these expectations. Specifically, they take into account the health, safety and well-being of tourists, employees and communities, seeking to reduce the risk of exposure to SARS-COV-2 while promoting an enjoyable and relaxing experience…”.

The aim of the Protocols was to ensure that the tourism sector could be re-opened whilst ensuring safety for tourists, employees and the community at large. In light of this, the Protocols explored measures which should be implemented within a facility which operates within the sector. In respect of the various measures included in the Protocols, I have confined my research to the aspects of the Protocols which treat specifically with the rules governing bars and restaurants.

This approach has been taken in light of video recordings which were provided to our office which suggest that the area in which persons were gathered and which appeared to be the area under investigation, appeared to be a bar with an outdoor dining space. Further in this ruling, I will outline in detail the contents of the video recording. However, in summary, the area of focus appears to consist of a bar with a seating area which consisted of tables and chairs which were set with what appeared to be knives, forks and glasses. Again, for this reason, I have considered the rules regarding bars and restaurants.

Covid-19 Protocols for Bars within a Hotel Facility

The Ministry of Tourism Health Protocols outlines specific rules regarding bars and restaurants. As it concerns bars, these protocols can be found at pages 23- 25 of the document. It states that patrons must wear face masks until seated within the bar. At the point of being seated, such masks can be removed. It must be noted that based on the Protocols, there is no further requirement to wear a mask whilst in the bar or dining area. Additionally, seating capacity must be reduced to 70% ensuring that there is at least 6 feet spacing between tables and chairs. This is aimed at facilitating a 6 feet distance between groups seated in the bar area. It also states that surfaces should be wiped throughout the course of opening hours and bar tops should be sterilized at a minimum of every 30 minutes.

As it concerns restaurants, it also indicates that patrons may remove face masks once they are seated. It states that the maximum group size should be no more than 10 individuals. It also states that the facility should eliminate the use of any table pre-sets including cutlery, glassware, mugs and table decorations.

The Video Recordings

In this matter, there were video recordings of the outdoor dining at a restaurant and bar which were submitted along with the case file. Additional footage of the lobby area as well as the entrance to the R Hotel were also viewed at the Communications, Cybercrimes and Forensics Division “CFCD”.

Further, in this ruling, we will treat with legal issues concerning the authenticity of these recordings. At this stage, we will explore the contents of the recordings. The video recordings depict the following:

1. The Entrance/ Driveway – The footage of the driveway showed several cars entering the premises during the period under observation. In terms of the driveway, it appears that the cars on entering the premises, drive around to the rear of the premises and the parking lot cannot be seen in the video footage. It was observed that there were some persons who entered from the roadway by foot. However, the vantage point of this camera does not assist in properly identifying the persons seated in the cars or the persons walking onto the premises.

2. The Lobby -The lobby appears to be a small circular space which unlike other lobbies is a very small space which only accommodates persons entering and accessing elevators and staircases with no check in facility or personnel from the hotel to greet patrons. It appears to have an entrance door allowing for persons who enter the premises by foot to access the hotel through this “front door”. The persons who enter through this door are facing the camera and can be seen more clearly. However, the camera within the lobby shows that several persons enter the lobby from other doors within the premises. There appear, to be about three internal doors within the lobby. In respect of patrons who enter the lobby through these internal doors, it cannot be said when they arrived at the premises or where they are coming from into the lobby. Persons who enter through the front door can be seen entering from the roadway or entrance gate or to the side of the premises.

3. The restaurant – This footage is very helpful in that, it depicts the dining area before guests arrive and throughout the period in which guests arrive and ultimately leave the area in the night. The tables are clad with pre-set cutlery on each table. It appears that the tables and chairs are evenly spaced. Whilst viewing the footage, it is observed that several persons arrived in this area and remained there for some time. The footage as well as still images depict at some points what appears to be a toast with glasses raised. At this juncture, there were 19 persons standing around the centre table appearing to toast someone or something at the table.

An issue for consideration in this ruling was whether the Ministry of Tourism Protocols was being followed in the video recordings which were submitted along with the case file and which were directly viewed at the CFCD.

Whether the Protocols was adhered to at the R Hotel?

In examining the Ministry of Tourism Health Protocols, I have considered the issue of the absence of face masks being worn by patrons at the restaurant. It is observed that there is no requirement under the Protocols for patrons to wear face masks whilst at the bar or restaurant within the compound. As such, the fact that the patrons in the videos were not wearing masks, does not constitute a breach of the protocols of the Principal Act.

I have also considered the number of persons seated and standing around the centre table at the time of the apparent toasting. At this juncture, there were 19 persons around the table. The protocol includes measures regarding seating arrangements at a bar and restaurants. It states as follows:

“[As it concerns bars] …Reduce seating capacity to 70%, ensure that there is at least 6 ft of space between tables/ seating or if furniture is immovable ensure guests/ groups of guests are seated 6 ft apart from other groups… Restrict seating at the physical bar to be limited to a space between each seat. Do not allow for congregation at the bar…”.

In respect of restaurants, on page 19 of the document it states as follows:

“…Encourage large groups (6 and above) to make reservations beforehand and establish a maximum amount of reservations that can be made for any day. Maximum group size should be no more than 10 individuals. Monitor seating capacity frequently and engage with patrons should wait time be extended…”

This area of focus where the persons congregated was in fact a dining area where, based on the video produced, the tables were in fact clad with what appeared to be cutlery prior to the arrival of guests and as such the rules applicable to restaurants must be applicable to such dining spaces.

The video depicts some 19 persons standing and seated in one specific area without any social distancing and not wearing masks. This arguably may run counter to the intention of the Principal Order and subsequent amendments which include several rules governing the additional measures which were deemed appropriate to mitigate against the hazard caused by the Sars-Cov-2 Pandemic. This is arguably a breach of the Ministry of Tourism Protocols.

Whether criminal charges should be laid and if so, against whom?

Based on the material provided in the video recordings, it appears that the strict protocols contained in the Ministry of Tourism Protocols may not have been adhered to as it concerns the number of persons who were gathered at the centre table at varying points. However, in determining the issue of a breach of the Principal Act, I have sought to firstly explore in detail, the general provisions under this Act, together with the exemptions if any, as it regards hotels. Consideration is further given to the issue of whether a breach of the Ministry of Tourism Health Protocols constitutes a breach of the Principal Act.

Section 12 of the Principal Act governs the general prohibitions regarding gatherings in public. It states as follows: -

“The following directions are given to all persons in any public place –

(a) Subject to the exceptions listed in the Fourth Schedule, and except as otherwise provided in this Order, gatherings in any public place during the periods from August 11, 2021, to August 31, 2021, shall not exceed 10 persons at a time;

(b) Each person at a gathering in a public place shall maintain a distance of at least 182.88 centimetres (or 6 feet) from other persons (“social distancing”); and

(c) When in a public place (which, for the avoidance of doubt, includes a workplace and a licensed public passenger vehicle), each person shall wear a mask fitted to that person's face so as to cover that person's nose and mouth.”

These provisions were preserved under DRMA Order 9 Amendment No. 2. It must be noted that the Fourth Schedule of the Principal Act excludes Tourist establishments as defined in the Public Health Tourist Establishments Regulation 2000. Therefore, the restrictions applicable to gatherings in public as contained in section 12 of the DRMA Order 9 are not applicable to the R Hotel.

Therefore, where there is a gathering of individuals at a hotel facility and such gathering exceeds 10 persons, there is no breach of section 12 of the DRMA by these individuals who have gathered in such a space. However, a further issue is whether such gatherings may constitute a breach of the Covid-19 Ministry of Tourism Protocol. In light of this, the question to be answered is whether a breach of the Ministry of Tourism Protocol constitutes a breach of the DRMA Order 9.

Section 14(10) of the DRMA Order 9, as outlined above, obliges hotels and resorts to operate ONLY in accordance with the Covid-19 Ministry of Tourism Protocols. By virtue of the stipulations under section 14(10), the Ministry of Tourism Health Protocols has been incorporated within the DRMA. Therefore, a breach of the Protocols would amount to a breach of the DRMA itself.

The question may be asked who would be responsible for this breach? Would it be the R Hotel or the individuals seated and standing around the table at the material time? It is the considered view that the R Hotel and its management are responsible for ensuring that the Ministry of Tourism Protocols are enforced and therefore where such protocols are breached on their property, they would be liable for sanctions under the DRMA.

Further in this ruling, I will discuss the recommendation of the Office in this regard.

I will now explore a very important issue which arose in this ruling. The persons seen in the video are allegedly seen at the R Hotel on a day which was declared by the Prime Minister pursuant to his powers under the Disaster Risk Management Act and which was subsequently gazetted in the form of the Disaster Risk Management Act Order 9 to be a “No Movement” day.

Exempted Categories of Persons Under the Disaster Risk Management Act

The office has also considered carefully the implications of the 14th day of September, 2021 being declared a “No Movement” day. In this ruling, the investigations surround Mr. Floyd Green, Mr. Andrew Bellamy, Ms. Gabrielle Hylton, and Mr. Dave Powell who are alleged to have been a part of this group of persons who were engaged in the social gathering under investigations. It must be stated that there was no material provided to the office which demonstrated that the above persons were found to have left their place of abode on the date of the 14th day of September, 2021.

A video which depicts persons physically present at a location does not assist in making a determination as to when such persons arrived at the particular location. Where such persons are shown to be present at a hotel facility, taken at its highest it demonstrates that they may have been guests at the facility at the material time. It does not assist us in respect of when they commenced being guests at the facility or when they left the facility. This information would have been useful certainly in respect of the persons who did not enjoy full exemptions from the “No Movement” orders.

Nevertheless, our office was asked to examine carefully whether there were any breaches of the Disaster Risk Management Act and if so, by whom. For this reason, we considered carefully the correlation between the various provisions of the Disaster Risk Management Act which were relevant to this aspect of the legal opinion in this matter.

Section 10(1) of the Principal Act states as follows;

“10.— (1) Except as otherwise permitted under the Third Schedule, each person is directed to remain at an abode or place of residence (including the yard) during the period from August 11, 2021, to August 31, 2021, during the hours from 7:00 pm each day to 5:00 am the following day, beginning at 7:00 pm on August 11, 2021, and ending at 5:00 am on September 1, 2021, except that

— (a) each person is directed to remain at an abode or place of residence (including the yard), during the hours from

— (i) 6:00 pm on Saturday to 5:00 am the following Sunday; and

(ii) 2:00 pm on Sunday to 5:00 am the following Monday; and …”

The DRMA Order 9 Amendment 2 made the following amendments to the above provisions as follows;

“Paragraph 10(1) of the principal Order is amended—

(a) by deleting sub-paragraphs (g) and (h) and inserting the following as paragraphs (g) to (j)—

“(g) beginning at 6:00 pm on Saturday, September 4, 2021, and ending at 5:00 am on Wednesday, September 8, 2021;

(h) during the period from Wednesday, September 8, 2021, to Saturday, September 11, 2021, during the hours from 7:00 pm each day until 5:00 am the following day, beginning from 7:00 pm on September 8, 2021, and ending at 5:00 am on September 11, 2021;

(i) beginning at 6:00 pm on Saturday, September 11, 2021, and ending at 5:00 am on Wednesday, September 15, 2021; and

(j) during the period from Wednesday, September 15, 2021, to Saturday, September 18, 2021, during the hours from 7:00 pm each day until 5:00 am the following day, beginning from 7:00 pm on September 15, 2021, and ending at 5:00 am on September 18, 2021.”; and….”

By virtue of the above provisions, the 14th day of September, 2021 was a day in which all persons were obliged to remain at an abode or place of residence unless they were exempted by virtue of other provisions within the Principal Act.

At the material time on the 14th day of September, 2021, Mr. Green served as a member of parliament and the Minister of Agriculture and Fisheries. In respect of Mr. Andrew Bellamy, he was asked in a question and answer session concerning whether he was a councillor of the Mona Division at the material time. He made no comment. However, it appears that he may have been a councillor at the material time. In light of the above, I will examine the Disaster Risk Management Act in respect of the nature and extent of the exemptions which existed at the material time.

It must be noted that, unlike general legislative provisions which usually apply across the board to persons without exceptions, the Disaster Risk Management Act includes exemptions for specified categories of persons as also for specified businesses.

The relevant provisions regarding the exemption of persons are to be found in the third schedule of the Principal Act. The 3rd Schedule of the Principal Act outlines as follows:

“…Persons permitted to leave their abode or Place of Residence during the specified hours during the relevant periods under Paragraph 10 and 11 are as follows;

The holder of an office, or for the purposes of the employment, service, activity or authorization, or duties (as the case may be) described below:

1. The holder of any of the following offices –

…(b) member of either House of Parliament; …

5. Any person employed in a service concerning the provision of health, water, food, electricity, public works, sanitation, firefighting, civil aviation or telecommunications…

27. Mayors and Councillors of Municipal Corporations, or the Chief Executive Officer, Chief Technical Officer or Inspector of the Poor of a Municipal Corporation or City Municipality….”

Based on the above, Mr. Floyd Green, who is an elected Member of Parliament would have been given a privileged position of benefiting from complete exemption under paragraphs 10 and 11 of the Principal Act in respect of being allowed to leave his place of abode during the specified hours of curfew or “no movement” days. There is no qualification in respect of this exemption. A member of the House of Parliament was allowed to leave his place of abode without restriction.

In respect of Mr. Bellamy, if he is, in fact, a Councillor of the Mona Division, by virtue of the list of exempted persons, councillors of municipalities also enjoyed similar exemptions from the curfew provisions which enabled them to move freely.

Although the wording of these sections speaks for itself, it was important to compare these provisions with previous provisions treating with exemptions for members of Parliament and Councillors under the Disaster Risk Management Act. As such, I also examined the Disaster Risk Management (Enforcement Measures) Order 2021 dated Friday the 15th day of January, 2021. In that Order dated the 15th day of January, 2021, the 3rd Schedule reads as follows:

“…Persons permitted to leave their abode or place of residence during the specified hours during the relevant periods under paragraph 10 and 11.

For the purposes of the employment, service, activity or authorization, or duties (as the case may be) described below:

Duties as a holder of any of the following offices –

(b) Office of member of either House of Parliament…”

In conducting a comparative analysis of both provisions, it is my understanding that the provisions as they were constructed within the January 2021 order is that the categories of persons such as a Member of Parliament and the Governor General as also a Member of the Judiciary were only exempt whilst engaged in their duties as a holder of these officers. However, the words, “Duties as a holder of any of the following offices” was modified in the subsequent Order 9 of 2021 to read “The Holder of any of these offices…”.

The effect of the modification and newer formulation in the Principal Act is that there is an absolute exemption where the individual holds such an office hence the use of the terminology “the holder of any of the offices”.

As such, none of the restrictions under the DRMA in respect of the restriction of movements during curfew hours or on “No Movement” days applied to these categories of persons. If Parliament had intended that such exemptions were to be qualified, they should have retained the provisions as contained in the previous Orders under the Disaster Risk Management Act.

A similar position exists in respect of Councillors. In examining the wording, the DRMA Order 9 Schedule 3 removed the qualification of limiting the exemptions to the strict performance of duties in the specified office.

In assessing the above provisions, it is the considered view that there was no breach of the Disaster Risk Management Act where a member of Parliament or a Councillor is found to have left his place of abode on a no movement day or during curfew hours.

Re: Mr. Dave Powell

Mr. Dave Powell has indicated in his question and answer document that he is employed at the National Solid Waste Management Authority. I have been provided with no evidentiary material to verify this information. If he is so employed to the National Solid Waste Management, the issue arises whether he would also benefit from full exemption to the restrictions regarding movement during the curfew hours.

Schedule 3 of the DRMA Order 9, creates an exemption for any person employed in a service concerning the provision of public works and sanitation. Consequently, if Mr. Powell is employed to the National Solid Waste Management Authority, he would also benefit from similar exemptions to that enjoyed by Mr. Green and Mr. Bellamy.

Ms. Gabriel Hylton

As stated above, there was no material provided to the office which demonstrated that Ms. Hylton was found to have left her place of abode on the date of the 14th day of September, 2021. The footage of the lobby shows a lady dressed in a white dress entering this area from an internal door. This person is not seen entering through the front door of the premises, nor leaving through this door for the duration of the footage. In this regard, a video that depicts a person physically present at a location does not assist in deciding as to when this person arrived at the location. Where such persons are shown to be present at a hotel facility, taken at its highest, demonstrates that they may have been guests at the facility at the material time. It does not assist us in respect of when he/she commenced being guests at the facility or when they left the facility. The provisions which govern the restriction of movement on particular dates, could not have prevented persons checking in to a hotel or resort facility prior to the particular date and remaining as guests through to the actual “no movement” date. On this case file, there is nothing to assist in determining when Ms. Hylton arrived at the hotel and when she departed the facility. As such, it is the considered view, that the evidence is insufficient to ground criminal charges for breaching the “no movement” provisions.

Absence of Masks & Social Distancing

In the videos which were provided, persons were seen without masks, and also at varying points, there was an absence of social distancing. Our office was asked to assess this particular issue in light of the DRMA provisions.

Section 12 of the Principal Act reads as follows:

“ The following directions are given to all persons in any public place—

(a) subject to the exceptions listed in the Fourth Schedule, and except as otherwise provided in this Order, gatherings in any public place during the period from August 11, 2021, to August 31, 2021, shall not exceed 10 persons at a time;

(b) each person at a gathering in a public place shall maintain a distance of at least 182.88 centimetres (or 6 feet) from other persons (“social distancing”); and (c) when in a public place (which, for the avoidance of doubt, includes a workplace and a licensed public passenger vehicle), each person shall wear a mask fitted to that person's face so as to cover that person's nose and mouth.”

Firstly, in respect of the restrictions regarding the gathering of persons in a public space, hotels are exempt by virtue of the Fourth Schedule. Further, in respect of the wearing of masks, the Ministry of Tourism Protocols posits that guests are allowed to remove their masks once seated. Additionally, it refers to social distancing between differing groups being maintained at 6 feet in a hotel setting. In light of the specified rules for hotels, it is evident that Parliament intended to create specific rules for this sector in respect of mask-wearing, social distancing and gatherings in a public space. As such, it is the considered view that guests at a hotel are not bound by the strict general protocols contained within section 12 of the Principal Act.

Contents of Case File

This case file consists primarily of a witness statement of one Mr. Oshea Morgan, a Network and Systems Administrator, together with video recordings and several documents which pertain to the court proceedings embarked on by the police to secure the video footage in this matter.

Having assessed this matter, the critical issue is whether there is sufficient evidentiary material which suggests that there have been breaches of the Disaster Risk Management Act at the R Hotel which is situated at 2 Renfrew Road, Kingston by person(s) on Tuesday the 14th day of September, 2021, and if so by whom.

In this matter, the entire case for the prosecution would rest on the video footage which was extracted in this matter. A critical issue is whether the Crown can prove that this video footage is authentic and further whether it is sufficient to prove the commission of an offence.

The Production of the Video Footage

The video recordings which were contained within the file submitted to the office were produced following a Court Order of Senior Parish Court Judge, Mrs. Lori- Ann Cole Montague, pursuant to the powers of the Parish Judge under section 21 of the Cybercrimes Act 2015.

On the 30th day of September, 2021, the learned Judge made the following order:

“That Mr. Barrington Daley produces in a forensically sound manner in its original format to Deputy Superintendent of Police, John Badley, an authorized officer pursuant to section 21 of the Cybercrimes Act 2015, the data footage contained on CCTV at R Hotel located at 2 Renfrew Road, Kingston for Tuesday September 14, 2021 between 12 midday to 12 midnight at the entrances of the Reception Area and Fifth Floor Lounge for the purposes of a criminal investigation and criminal proceedings within forty-eight (48) hours of the service of this Order.”

In addition to the relevant court documents which accompanied this file, the office was also provided with a witness statement of the person who downloaded the video footage in compliance with the Court Order. Based on the material provided, this footage represented the recordings on the 14th day of September, 2021 from 12MD to 12AM.

Witness Statement – Mr. O'Shea Morgan

In a statement, Mr. O'Shea Morgan stated that during the latter part of September 2021, he was briefed by his General Manager, Mr. Barrington Daley and instructed to secure the system which contained video footage for the period September 13, 2021 midnight to September 14, 2021 midnight in its original state; ensuring that the system was virus- free and functional. On the 4th day of October, 2021, Mr. Morgan extracted the data using a software, so as to facilitate its preservation. This was done using the CCTV Management Software. The initial extraction was not done in the presence of the police, but as Mr. Morgan explains it, was done to preserve the data in keeping with the Notice of Preservation which was served by the police.

On the 5th day of October, 2021, technical personnel from the Communications and Forensics and Cybercrimes Division attended the hotel and viewed the extracted footage which remained on the CCTV system. On the 6th day of October, 2021 at approximately 9:40 AM, DSP Badley visited the R Hotel where Mr. Morgan in his presence, transferred the requested data from the CCTV system to a green and white 128 GB Kingston Flash Drive. This data contained CCTV footage for the Courtyard Dining area, Restaurant Lobby, Main Lobby on the ground floor and the front door to the building of the R Hotel Kingston for the period September 14, 2021 from 12:00hrs to 23:59hrs.

Mr. Morgan indicated that the footage provided to the police, does not contain any date or time stamp displayed due to the system's function when data is extracted in its raw format.

We were provided with a statement from Detective Sergeant Denton Gordon who was present when the footage was downloaded by Mr. Oshea Morgan and transferred to a thumb drive. This thumb drive was provided by the police.

Analysis of the Video Recording – Authenticity

The Law of Admissibility of Video Evidence

The Court of Appeal decision of R v Lynden Levy et al (SCCA Nos 152,155, 156, 157 and 158/1999 delivered on the 16th day of May, 2002) constitutes the locus classicus within our jurisdiction concerning the admissibility of video evidence. In that case, the Court of Appeal endorsed and adopted the decision of the Supreme Court of Canada in the case of The Queen v Alexander Nickolovski (1996) 3 SCR 1197. The decision of Nickolovski establishes that video evidence can in fact be used as the sole means of proving the commission of an offence and as identifying the accused as the perpetrator of a crime.

Video evidence has been described as real evidence or testimonial evidence. However, being 'real evidence', means that the prosecution must bear in mind the parameters in which real evidence is admissible. As noted in the opening paragraphs on the discourse surrounding "Real Evidence" in Blackstone's Criminal Practice 2005, it was stated as follows;

"Real evidence is usually some material object, the existence, condition or value of which is in issue or relevant to an issue, produced in court for inspection by the tribunal of fact... Little if any weight can attach to real evidence in the absence of accompanying testimony identifying the object and connecting it with the facts in issue..."

Therefore, there must be some accompanying evidence or testimony identifying the object and connecting it with the facts in issue. There are three ways in which a video recording could be deemed admissible in evidence. They are as follows;

1) The crown may prove the contents of a photograph or film by the production of the original;

2) The crown may prove the contents by the production of a copy which is proved to be authentic; or

3) The crown may prove the contents of a photograph or film by the parole evidence of witnesses who have seen the photograph or film.

Analysis

It is the considered view that there is sufficient evidentiary material to support the authenticity of the video footage in this matter which was directly removed from the system in the presence of the police and placed on a thumb drive which was provided by the police.

Recommendations

The Office, having carefully assessed the case file and the legislative provisions applicable to this matter, will make the following recommendations;

1. That no criminal charges be laid against Mr. Floyd Green, Mr. Andrew Bellamy, Ms. Gabriel Hylton and Mr. Dave Powell. However, it must be noted that such gatherings of persons without the wearing of masks is unwise given the on-going Pandemic which continues to affect the people of Jamaica at this time as also at the material time under investigations. The general restrictions regarding wearing a mask in a public space and the limitations on public gatherings under section 12 of the Principal Act are not applicable to hotel facilities given the provisions of the Ministry of Tourism protocols;

2. That criminal charges may be laid against the R Hotel for breach of section14(10) of the Principal Act for its failure to abide by the Ministry of Tourism Protocols relating to the manner in which the guests congregated in the dining area at the material time. Particularly in respect of the congregation of some 19 persons in the restaurant dining area. This is recommended, though the DRMA creates an exemption for hotels in respect of the general limitation of gatherings in a public space as contained in section 12 of the Principal Act, the Ministry of Tourism Health Protocols creates rules regarding the number of persons which may be gathered in a dining area, as well as states that there shall be no congregating at a bar within the facility. As such, the Protocols places a responsibility on the hotel to manage its guests and to ensure that there is safety in respect of the operations of the facility.

3. As indicated previously, the video footage of the restaurant shows some nineteen persons who are congregating in the vicinity of the table where the celebrations occur. The police asked us to offer assistance in respect of the approach to be taken concerning these individuals, some of whom are unknown to the police and are not properly identified through any evidentiary material gathered during the investigations. The office would recommend that in respect of these other persons who are seen in the footage as being involved in the celebratory events, efforts be made to locate and identify these persons. However, even if these persons can be identified and located, no criminal charges can be laid unless we can demonstrate that they disobeyed the “no movement” orders which obtained at the material time. The same principles as are applicable to Ms. Hylton would be applicable to them. If these individuals can be proved to have entered the hotel during the curfew hours, we may consider whether any recommendations can be made at that time.

4. A breach of section 14(10), like all other breaches of the DRMA constitutes a summary offence which attracts a maximum penalty of $1,000,000.00 by virtue of section 52 of the Disaster Risk Management Act 2015.

Sincerely,

_______________________________

Deputy Director of Public Prosecutions

For the Director of Public Prosecutions.

cc: Major General Antony Anderson, CD, JP, MDA, B.Eng (Hons.)

Commissioner of Police

Mr. Fitz Bailey

Deputy Commissioner of Police (DCP)

Crime & Security Portfolio

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