Reform INDECOM Act: Response to Court of Appeal Decision on INDECOM’s Powers

On March 16, 2018 the Court of Appeal ruled that the Independent Commission of Investigations (INDECOM) had no statutory authority to charge, arrest and prosecute members of the security forces who commit unlawful acts, such as extrajudicial killings. The court ruled however, that INDECOM’s officers could charge, arrest and prosecute under common law – just like any other member of the public. This means that INDECOM’s officers must now make private arrests and prosecutions in their personal capacity, despite working for and being paid by the public.

Parliament must implement reforms to the INDECOM Act agreed to in 2015

In 2015, Parliament agreed to settle this issue by amending the INDECOM Act to clarify INDECOM’s power to charge, arrest and prosecute officers by explicitly placing it in the law. However, nothing was done, leaving the law unclear. Now, given the court decision, INDECOM’s legal powers and the fate of hundreds of victims who have active cases of police abuse is uncertain. Jamaicans for Justice (JFJ) is deeply concerned by the present situation and calls on the Parliament to speedily execute the delayed reform of the INDECOM Act. We urge Parliament to keep its promise to maintain an effective and balanced police oversight body.

Bi-partisan consensus on enshrining INDECOM’s power to arrest, charge and prosecute officers who commit wrongdoing in law has existed since 2015. Parliament, in reviewing the INDECOM Act determined that “INDECOM’s entitlement to prosecute” needed to be clarified in law and it drafted new subsections 4(1)(d) and (e) to the INDECOM Act that explicitly gave INDECOM power to “institute and undertake criminal proceedings” or delegate that power to “any person qualified to practice as an Attorney-at-Law.”

Parliament also agreed to explicitly clarify INDECOM’s powers to arrest and lay criminal charges by adding a new subsection to section 20 of the INDECOM Act that confirms INDECOM officers’ “powers, authorities and privileges…including: (a) To arrest as is given by the law to a constable; (b) To lay criminal charges and to serve summonses as are given by law to a constable.” If it had implemented these reforms, the present problem would not exist.

INDECOM officers working for and paid by the public should not be acting privately.

The Court’s decision requires that INDECOM’s officers charge, arrest and prosecute officers in their private, personal capacity – making INDECOM the only state entity where officers are personally linked to and personally exposed to outcome of the criminal matter. In The Police Federation v INDECOM, the court ruled that:

“INDECOM’s investigators should also bear in mind that, acting as private citizens, they would not have the benefit of the defences in law that a constable would have to charges of wrongful arrest and malicious prosecution. They would, as a consequence, wind up finding themselves personally exposed to the financial consequences of an adverse judgment in a claim based on either or both of those torts.”

The implication of this is that INDECOM’s officers who carry out a public function assigned by Parliament, funded by public funds can only so in a private capacity. Moreover, they may be privately responsible for any suit based on ‘wrongful arrest’ or ‘malicious prosecution.’ At present, when a police constable arrests or the Director of Public Prosecution prosecutes someone as public officials, they are not privately exposed. By failing to execute the reforms to the INDECOM Act achieved through bi-partisan consensus, successive governments may compromise the efficacy of INDECOM.

But even worse, if members of the security forces are in fact wrongfully arrested or prosecuted, they may not be able to recover the suitable compensation from the government to which they are entitled like ordinary citizens can. Instead. they can only hope that an INDECOM investigator has the financial means to satisfy a personal civil judgement. Given the present wages paid, such an option may not provide meaningful recourse.

Simply put, the current status of the law does not help anyone and does not enable INDECOM to fulfil its purpose. It exposes both members of the security forces and INDECOM officers to messy ‘private arrests’ and ‘private prosecutions.’ Given the fact that arrests and prosecutions will continue, Parliament must resolve this impasse quickly as it may negatively affect the work of both INDEOM and the security forces.

We call on Parliament to resolve this as quickly as possible. The failure to resolve this may have a negative effect on the work of INDECOM, its officers and the police force.