Yanique Taylor | Police search of students is unlawful
As I stood in line at the supermarket the other night, being held hostage by the cashier who found it more pressing to finish her conversation than cash my goods, I was drawn to Television Jamaica's Prime Time News where the police were conducting searches of schoolboys in the Spanish Town area. The communications officer for the Jamaica Constabulary Force (JCF) explained that criminals, in particular extortionists, dressed as schoolboys in uniform, were using this disguise to carry out their criminal activities and avoid detection. The JCF, therefore, planned and initiated a drive to start searching males dressed in school uniforms.
Whilst I understand that the JCF undoubtedly faces a formidable challenge in fighting crime and have had to devise innovative means of addressing this vicious monster over the years, the police must, however, remain conscious of the fact that crime-fighting objectives should not be at the expense of constitutionally guaranteed rights and freedoms of law-abiding citizens. The proposed and executed actions of the police officers appear to be unlawful and directly infringe upon the rights and associated freedoms of these students.
Section 13 (3) (j) (i) of the Charter of Fundamental Rights and Freedoms guarantees a right to protection from the search of person and property. It simultaneously recognises this right and places an obligation on the State to respect the right by stating that no organ of the State should take actions which infringe on or abridge those rights. It is prudent to highlight, however, that the right is not absolute, as it may be abrogated where the rights of another person is being infringed upon or where it is provided for via statute. This abrogation must, however, be demonstrably justifiable in a free and democratic society. In the fairly recent decision of Gary Hemans v The Attorney General in the Jamaican Supreme Court, Justice Batts reiterated that "persons under the Queen's peace are entitled to freedom from search of their person or property unless such a search is legally justified".
In the United States (US), a 'Stop and Frisk' policy (the analogous practice to the JCF's 'Stop and Search' modus operandi) instituted by the New York Police Department in 1999, was deemed unconstitutional as it violated the Fourth Amendment right to be free from unreasonable searches and seizures. This was based on a ruling of the US District Court in 2013 and was unanimously upheld by a three-judge panel in the Second Circuit in 2014.
In the past, the police were empowered under the Vagrancy Act, 1842, to stop and search individuals in a public place once they suspected that they might commit a criminal offence. This act has, however, since been repealed and therefore the police no longer has such powers.
Working on intelligence
The JCF, in this current situation, is purporting to search persons in school uniforms, having received information that extortionists associated with the Clansman gang were disguising themselves as such. In order to legally execute these searches, there must be a legislative prescription which authorises the members of the JCF to do so. Failing such prescription, the search is unlawful.
Extortion, the offence with which the police are concerned in the instant case, is made punishable under the Larceny Act. A perusal of Section 63 (1) of this statute reveals that a search of a person may be conducted where it is reasonably suspected that such person has in his possession/custody any property pursuant to an offence under the Larceny Act, provided that a search warrant has been obtained in this regard. The actions of the police officers in arbitrarily searching these students in hopes of identifying extortionists or person committing other offences is, therefore, not based on any legal authority and hence requires consent of the person being searched.
The law recognises the duty of the police to conduct warrantless searches once a person has been arrested for an offence. In one decision in the United Kingdom House of Lords, the court held that it was a well-established principle at common law that where a person has been arrested, the officer effecting said arrest could search that person and seize articles found on him. Notably, unlike Jamaica, the UK's position is buttressed by the statutory authority (the Police and Criminal Evidence Act).
The police in Jamaica can therefore arrest a person and subsequently search that person. However, where the police is devoid of a warrant to effect the arrest, the arresting officer must have formed a reasonable suspicion that the arrestee has or is about to commit an offence. (The discussion as to reasonable suspicion is best left for another article).
Therefore, unless a person expressly consents to a search, a statute permits warrantless search, a search follows a lawful arrest, the authority for the search must be evinced in a search warrant outlining the basis for the search and the act which permits such a search. Failing either, the search, as proposed by the police officers, is unlawful. Until there is passage of a law facilitating searches in the context we currently see members of the JCF executing them, we must entreat these members to refrain from engaging in this unlawful enterprise lest they be made subject to disciplinary action and/or legal suit.
It is then abundantly clear that the searches being executed by JCF members, as documented on Television Jamaica's Prime Time News on Monday, November 7, 2016, need to be conducted in the proper legal context. There can never be a trade-off between the constitutionally guaranteed rights of law-abiding citizens and the JCF's objectives of preventing and detecting crime. The members of this noble organisation must never forget that they are also sworn 'to serve, protect, and reassure with courtesy, integrity and proper respect for the rights of all'.
- Yanique Taylor is the legal officer at the Independent Commission of Investigations (INDECOM).