Sat | Jan 19, 2019

Jacqueline Samuels-Brown | INDECOM ruling a no-brainer

Published:Wednesday | March 21, 2018 | 12:00 AM
Jacqueline Samuels-Brown

The recent unanimous decision of the Court of Appeal in the case initiated by the Police Federation and others against INDECOM puts it beyond doubt that on a literal interpretation of the INDECOM Act, the Independent Commission of Investigations has no power of arrest, charge or prosecution. All three judges came to this conclusion.

The court's decision was arrived at after close examination of the language of the INDECOM Act, particularly sections 20 and 4, and in the context of a review of the entire scheme of the act.

In its judgment, the court noted that had the language of the act not been clear, there is another rule of law that would have allowed it to refer to the official records of the parliamentary debate that accompanied the passing of the INDECOM Act. This is permissible as an aid to determining Parliament's intention when the language of legislation is not clear. In fact, the lawyers who represented the Police Federation went out of their way to secure the official transcript of these parliamentary debates, the Hansard report.

The transcript undoubtedly supports the conclusion reached by the court. For example, during the debate in the Senate, both government and opposition senators emphasised the need to give INDECOM greater investigative powers than the limited ones which the Police Public Complaints Authority at that time enjoyed. The recent statement by the current minister of justice that "the parliamentary committee ... had agreed that the oversight body should have the power to arrest and prosecute police personnel" makes no reference to this public parliamentary discussion which is recorded.




Indeed, I have been reliably informed that in the period immediately following the passing of the INDECOM Act, INDECOM would routinely refer its investigations to the Office of the DPP for her decision whether to prosecute or not. Later on, this practice changed.

The majority decision of the court relates to the separate issue of whether the limited right that every citizen has to arrest persons and to lay and prosecute charges for criminal offences can be exercised by an officer employed to INDECOM arising out of an INDECOM investigation. One judge of the court said no. Two judges said yes. Yet, the yes vote was not without caveat.

While ruling that INDECOM officers retained their private citizen's right of arrest, the majority of the court noted that there "... would seem to be some incongruity if the investigators were to use statutory authority to investigate an incident and thereafter to claim the right as private individuals to institute a prosecution of a person based on that investigation".

One of the three judges disagreed with her fellow judges on this point. Phillips, JA, in her dissenting judgment, having noted these very "incongruities" set out the reasons why, in her judicial opinion, the common-law powers of private citizen's arrest cannot be ascribed to INDECOM.

Despite ruling that INDECOM officers have the same rights as private citizens of arrest, the court nevertheless urged caution in INDECOM officers proceeding to exercise such a right, noting that the private citizen can only arrest when a serious crime is committed in his/her presence and there is "moral certitude" of criminality. Additionally, the court reiterated that a private citizen cannot effect arrests for statutory offences.

Although this did not form a part of the court's reasoning, not being necessary for arriving at its decision, the public should be aware that while police officers are answerable to several commissions and bodies, including the Police Service Commission, the Bureau of Special Investigation, the Inspectorate of Constables, and various rules and regulations, the INDECOM Act specifically provides that apart from appeals and like court procedures, "no proceedings shall lie against [it or its officers] for anything he may do or say in the performance of his functions under this act".

Finally, at the appeal hearing, the DPP's lawyer put forward arguments supporting INDECOM's then position that the act gave it powers of arrest, charge and prosecution. The DPP now seems to have accepted the court's ruling and has publicly announced her intention to seek an early meeting with the current commissioner of INDECOM, presumably to discuss the way forward.

- Jacqueline Samuels-Brown, QC, is an attorney-at-law. Email feedback to