Wed | Aug 23, 2017

Preventative detention: DPP brings clarity to legal terms

Published:Wednesday | February 15, 2017 | 2:29 AM
Llewellyn

Director of Public Prosecutions Paula Llewellyn has sought to bring clarity to the issue surrounding the use of preventative detention by the police which was announced by the PM and attorney general last week. Here is the text in full from Llewellyn.

Re:  “Preventative Detention”: What is it?

I have noted the robust discussion on the above captioned phrase in the public domain. As a public service I now make available a comprehensive dissertation to the public discourse in an effort to provide context and to explain aspects of the legal terms involved in an informed discussion of the issues arising.

THE POWERS OF ARREST

HISTORY

In relation to the United Kingdom and by extension the Commonwealth historians are divided as to the origin of the office of Constable.  Some (and it seems to be the conventional wisdom) date the office to the Norman conquest-1066-when William the duke of Normandy became William I King of England.   

Other historians perhaps not wishing to ascribe the origin of such an important office to a roguish French interloper, have pushed the boundaries back to Alfred the Great circa 871 CE.

The term was also used at the local level within the feudal system however, describing an officer appointed to keep order.

With the establishment of an empire, the office was planted around the world wherever a British flag was planted and people were conquered and subjugated to British rule.

If WIKIPEDIA  is to believed then the history of law enforcement in Jamaica began in 1716 when night watchmen were appointed to serve the cities of Port Royal, Kingston, and the parishes of Saint Catherine and Saint Andrew. In 1832 the first attempt to establish a permanent police force began, and William Ramsay was appointed Inspector General of the police force in 1835.

In the aftermath of the Morant Bay Rebellion in 1865 the decision was taken to establish a para-military organisation which is known today as the Jamaica Constabulary Force. This institution was established in 1867.

DUTIES OF THE FORCE


Section 13 of the Constabulary Force Act sets out the duties of the members of the Jamaica Constabulary Force. These duties are as follows:

[1] to keep watch by day and by night,

[2] to preserve the Peace,

[3] to detect crime,

[4] to apprehend or summon before a Justice, persons found committing any offence or whom they may reasonably suspect of having committed any offence, or who may be charged with having committed any offence,

[5] to serve and to execute all summonses, warrants, subpoenas, notices, and criminal processes issued from any Court of Criminal Justice or by any Justice in a criminal matter ; and

[6] to do and perform all the duties appertaining to the office of a Constable.

Please note that although the right of the Constable to arrest a citizen on reasonable suspicion that he is about to commit an offence is not expressly provided for in the Constabulary Force Act (which codifies all other duties of the Constable at Common law), this arrest which could be called a “preventative arrest” would still obtain at common law and is also recognized in the Constitution as a circumstance which could cause the deprivation of one’s liberty.

It is generally accepted that the most coercive power in possession of the Constable is the power of arrest. This of course would attach to ALL police officers.

WHAT IS AN ARREST?

The law defines an arrest as the beginning of imprisonment. It occurs when a law enforcement
officer states in terms that a person is arrested, when he either:-

[i]  uses force to restrain the individual concerned or

[ii]  when by word or conduct he makes it clear that he will if necessary use force to prevent the individual from going where he wants to go1. The constable who is using the method of word or conduct must use clear and unambiguous language. The subject being arrested must not be able to draw an inference that he has a choice whether or not to accompany the police. In the words of Lord Parker a former Lord Chief Justice of England and Wales:-

A police officer should use very clear words to bring home to a person that he is under compulsion, and the simplest words to use are "I arrest you2" 

There is no such thing as either a symbolic arrest or custodial arrest. There is either a complete arrest or there is no arrest at all. An arrest is complete only when the person /suspect is in fact prevented from leaving the custody of the officer. As stated before this may be accomplished either by physical restraint or by words alone provided that he submits to the restraint3.

An arrest has three purposes either individually or collectively. These are:

[i]  Preventive (in order to terminate a breach of the peace actual or prospective or in the case of the statute terminate the commission of an offence against its provisions).  

[ii] Punitive (e.g. to take a person before a court of law to answer for an offence); or

[iii]  Protective (e.g. where drunk or mentally disordered persons are arrested for their own protection).4

It would seem that the use of the phrase “preventative detention” is really interchangeable with the phrase “preventative arrest”. Both phrases, given the context previously outlined would embrace the concept of the Constable being able to arrest someone on reasonable suspicion that they are about to commit an offence.

WHO CAN ARREST?

District Constables or as they are known members of the Rural Police shall have all the powers of constables, and they shall exercise their office at all times when required to do so by any Justice, or any officer of the Constabulary to whom such district constable is by this Act made subordinate, and also, whenever in his judgment the public safety or welfare, or the ends of justice demand it5.

In addition to District Constables the power of arrest has been conferred upon other entities such as Fisheries Inspectors, Game Wardens6 where they may arrest (without warrant) any person committing or reasonably suspected of having committed an offence for which the fishery inspector has jurisdiction7. 

Forest Officers also posses this power to arrest (without a warrant).8

The Agents of the Independent Commission of Investigations (INDECOM) are also conferred with the powers of a Constable, pursuant to Section 20 of their enabling legislation – The Independent Commission of Investigations Act. These powers, authorities and privileges as are given to a Constable are conferred upon them solely for the specific purpose of giving effect to particular Sections of their legislation.

However, they are not in fact Constables and they cannot exercise such powers outside of the jurisdiction of their Act9.

A power of arrest without a warrant is also conferred on the ordinary citizen but she may ONLY arrest in circumstances where she has witnessed the felony being committed or the felony has already been committed.


THE CONSTITUTIONAL CONTEXT

The power of arrest and detention by a Constable of police can only be valid if it conforms to the constitution.

The Charter of Rights and Fundamental Freedoms, 2011 in section 13 guarantees the rights and freedoms set out in subsections (3)10 and (6)11 of this section and in sections 14, 15, 16 and 17; and the main issue is does the power of arrest  abrogate, abridge or infringe rights guaranteed under the Charter of Rights, 2011. Can such a power be justified in a free and democratic society?

Section 13(2) (b) of the Charter states:-

Parliament shall pass no law and no organ of the State shall take any action which abrogates, abridges or infringes those rights.

The power of arrest is on the face of it an interference with the constitutional guarantee of liberty.

THE COMMON LAW, STATUTE AND THE POWER OF ARREST

The powers of arrest entrusted to a Constable are a mixture of common law and statutory powers. 

CATEGORIES OF ARREST

The powers of arrest are divided into 2 categories:-

[1] Arrest without a Warrant; and

[2] Arrest with a Warrant

ARREST WITHOUT WARRANT

The police have at common law and at statute the power to arrest and lay charges. Section 15 of
the Constabulary Force Act confers upon the police the power to arrest without warrant in
certain circumstances

It shall be lawful for any Constable, without warrant, to apprehend any person found committing any offence punishable upon indictment or summary conviction and to take him forthwith before a Justice who shall enquire into the circumstances of the alleged offence, and either commit the offender to the nearest jail, prison or lock-up to be thereafter dealt with according to law, or grant that person bail in accordance with the Bail Act.

Moriarty’s Police Law 19th edition lists these certain and special circumstances. At common law the police are only empowered to arrest without a warrant in certain cases.

[i]  Where the offence is committed within his own view. The Court of Appeal of Jamaica has held that where a power is conferred by statute to arrest a person found committing an offence, the arrest must, in most cases, be made while the offence is actually being committed, or on fresh pursuit12.

[ii]  On his own reasonable suspicion, which must be based on two factors:  [1] the information and evidence that he has before him and [2] his honest belief that an offence has been committed or is about to be committed. 

[iii]  on the charge of a third person.

Some examples of arrest without warrant are as follows:-

Section 18 of the Constabulary Force Act states that “it shall be lawful for any Constable to apprehend without warrant any person known or suspected to be in unlawful possession of opium, ganja (Cannabis Sativa), morphine, cocaine or any other dangerous or prohibited drugs, or any person known or suspected to be in possession of any paper, ticket or token relating to any game, pretended game or lottery called or known as Peaka Peow or Drop Pan, or any game of a similar nature and to take him forthwith before a Justice who shall thereupon cause such person to be searched in his presence”.

In relation to the possession of ganja those provisions are subject to the recent amendment to the Dangerous Drugs Act where the weight of the substance is the relevant factor.

Section 62 of the Larceny Act not only empowers the Constable to arrest without a warrant but also the ordinary citizen where they find any person committing a breach of the provisions of the Larceny Act (eg. Simple Larceny, Robbery With Aggravation, Praedial Larceny, False Pretences etc) and forthwith have such person taken together with the property, if any, before a Parish Judge or Justice of the Peace to be dealt with according to law.

Section 4 of the Towns and Communities Act prescribes that it shall be lawful for any constable to take into custody, without warrant, any person who shall commit any of the offences hereinbefore mentioned13 within view of any such constable, and in like manner when the offender is unknown, without warrant to take into custody any such offender who shall be charged by any other credible person with recently committing any of the said offences, though not committed within view of such constable, but within view of the person making such charge.

Section 7 of the Towns and Communities Act also mandates a constable to take into custody, without a warrant, all drunken, loose, and disorderly persons whom he shall find disturbing the public peace, or disturbing any inhabitant or passenger, and all persons whom he shall find between the hours of nine at night and six in the morning lying or loitering in any high-way, piazza, or other open place, and not giving a satisfactory account of themselves. All such persons shall be guilty of an offence against this Act.

Section 31 of the Public Order Act states that a constable may arrest without warrant any person reasonably suspected by him to be committing or to have committed any offence against the provisions of the Act.

 

ARREST WITH WARRANT

Section 16 of the Constabulary Force Act prescribes the power of arrest with a warrant. It states that:-

Any warrant lawfully issued by a Justice for apprehending any person charged with any offence may be executed by any Constable at any time notwithstanding that the warrant is not in his possession at that time but the warrant shall, on the demand of the person apprehended, be shown to him as soon as practicable after his arrest.

CONSTITUTION AND ARREST

Although said before that an arrest is technically an infringement to the rights of liberty and free movement it must also be said that no rights are absolute and constitutionally guaranteed fundamental rights can be derogated from when it can be demonstrably justified as necessary in a free and democratic society.

Section 14 (1) of the Charter states that no person shall be deprived of his liberty except on reasonable grounds and in accordance with fair procedures established by law in certain circumstances. Importantly two of those exceptional circumstances are in subsection (1)(f) which states that one’s liberty may be deprived by way of arrest or detention:-

(i)  for the purpose of bringing him before the competent legal authority on reasonable suspicion of his having committed an offence; or

(ii)  where it is reasonably necessary to prevent his committing an offence.
 

This provision in the Charter is a constitutional codification of principles of common law touching and concerning the power of arrest.

 

ARREST TO PREVENT

At common law the police has the power to arrest where they reasonably suspect that an offence is about to be committed.

At common law where the offence is a felony (murder, attempted murder, wounding with intent, Causing Grievous Bodily harm with Intent, Simple Larceny, Larceny of Cattle, Praedial Larceny, Illegal Possession of a Firearm etc) the Constable can arrest without warrant in the circumstances where: [a] the felony is committed or [b] on reasonable suspicion that a felony has been committed or is about to be committed14.  

Where the offence is a misdemeanour the rule is that the officer’s power to arrest (without a warrant) may be exercised where there was a reasonable ground for supposing that a breach of the peace was about to be committed or renewed in his presence15. 

The reasonableness of the exercise of this power of prevention rests on two plinths.

[1]  That the exercise of the power was justifiable; and

[2]  That the period of detention was not unjustifiably lengthy.

At all times when exercising this power the police must act in accordance with the provisions of s.14 (2)(b) of the Charter which states that:

“at the time of his arrest or detention or as soon as is reasonably practicable, to be informed, in a language which he understands, of the reasons for his arrest or detention”.

In addition any person so arrested or detained shall have the right:
(a)  to communicate with and be visited by his spouse, partner or family member, religious counsellor and a medical practitioner of his choice16; and
(b)  to communicate with and retain an attorney-at-law17.

Furthermore, the police must be mindful of the provisions of s.22 of the Bail Act which state that where a person who is arrested or detained is not charged within twenty-four hours after such arrest or detention, he shall be brought forthwith before a Resident Magistrate or a Justice of the Peace who shall order that the person be released or make such other order as the Resident Magistrate or the Justice of the Peace thinks fit, having regard to the circumstances.


IN SUMMARY

It is very important to be reminded of the following propositions of law:

[i] An arrest must be justified by some rule of positive law. In short the power to arrest must be exercised for a proper purpose. Therefore an arrest is lawful if one has reasonable grounds for suspecting that person has committed an offence or is about to commit one.

However, the police officer (when acting on reasonable suspicion) must approach the arrest function with objectivity and make all such inquiries as are immediately and reasonably practicable. However, she is not obliged to discount all possible defences or seek complete proof before carrying out an arrest.  

[ii] An arrest will be unlawful-even if made on the basis of reasonable suspicion of having committed an offence- if the arrester knows at the time of the arrest there is no possibility of a charge ever being made18.  

[iii] “Reasonable cause” or “Reasonably suspected” refers to the facts in existence at the time of the arrest and not on the state of the law or the arrester’s particular view of the law and those facts can be based on evidence which would not be admissible in Court such as hearsay as long as it is reasonable and the Constable believes in it19. The factual circumstances should be such that the ordinary man in the street, acting without bias or prejudice, would fairly have suspected the suspect/accused of having committed the offence.

[iv] Every Police officer on arresting a citizen must inform the person arrested of the reason for the arrest - Either at the time of the arrest or as soon as is reasonably practicable after the arrest. This applies even though the reason for the arrest is obvious –unless this information is given, the arrest is not lawful20 and then the constable becomes liable for false imprisonment21. 

The authorities establish the proposition that if one arrests without a warrant upon reasonable suspicion for a crime which does not require a warrant the arrester must in the ordinary circumstances of the case inform the suspect of the reason for his arrest22. 

The grounds for arrest may be in colloquial language or slang if the constable forms the view that the person being arrested is likely to understand. As long as the words used aptly describe the offence for which the arrest is made. So words such as “Hey rude yout’ me a scrape you up fi tief de yam dem from off a Mass Claudie farm down a Junction” may be regarded as sufficient.

The officer may not give reasons on which he does not intend to rely. He may not lead a person to think that he will be arresting him for one offence when in truth he plans on arresting him for another23.

However, the requirement that the person arrested ought to know the grounds upon which he is being arrested does not exist if the circumstances are such that he must know the general nature of the alleged offence for which he is detained24. E.g. he is caught in the act of committing the offence by the constable.   

[v]  A Police Officer may use reasonable force to make an arrest of a suspect/accused especially if he resists or attempts to escape. Reasonable force is determined by taking into account all the circumstances including the nature and degree of the force used, the gravity of the offence for which the arrest is to be made, the harm that would flow from the use of force against the suspect, and the possibility of making the arrest or preventing the harm by other means. The only force that may be used is that which is necessary to secure and subdue the suspect.

Force cannot be used where the suspect does not resist arrest or attempt to escape. Accordingly constables must resist the temptation to drop a few ‘licks’ on the suspect to punish or chastise him for his offence (Please see also the Jamaica Constabulary Force Human Rights and Policy Use of Force and Firearms Policy).

[vii] Where in the lawful course of his duties – such as making an arrest- a Constable is assaulted or the suspect/accused resists his arrest by the officer, such a person is guilty of an offence.  Such a person would be liable on conviction to the punishment of a fine of two thousand dollars ($2000)25.

[viii] Non-Jamaican nationals are entitled to the diplomatic protection of their countries. So the relevant embassies are to be notified when such an arrest is made.

[ix]  Just because an arrest has been made does not necessarily lead to the assumption that a charge will be laid. Where an arrestable offence has been committed (e.g. murder), and the constable in his investigation had reasonable cause for suspecting the person arrested to be guilty of the offence, he was entitled to arrest him and that the interrogation of a suspect in order to dispel or confirm a reasonable suspicion was a legitimate cause for arrest. So when a constable exercised his discretion to arrest and took into consideration that the suspect might be more likely to confess their guilt if arrested and questioned at the police station that was a relevant matter and therefore did not render the exercise of his discretion unreasonable and did not make the arrest unlawful26.

EXTRAORDINARY CIRCUMSTANCES

The Constabulary Force Act makes allowances for arrest and detention in extraordinary circumstances where upon an evaluation of the nature or extent of criminal activity in any particular locality or area, the Commissioner of Police27 has reasonable grounds to believe that in the interest of public safety or public order or for the purpose of preventing or detecting crime, it is necessary so to do he may establish a cordon around the area28.

The cordon can only last for twelve hours29.

For more drastic measures such as a curfew which would restrict citizens within that locality to remain within their premises during the hours so specified unless otherwise authorized in writing by the member of the Security Forces who is in charge of enforcing the curfew then the Commissioner of Police must receive written approval of the Minister of National Security. 30

During the period of such cordon or curfew the police shall have the powers of search without a warrant in relation to searching dwelling houses in order to apprehend any person upon reasonable suspicion that he is in the course of committing or has committed or is about to commit, an offence31.

This arrest or detention can only be made where the Officer in charge of the cordon or curfew is satisfied that there is reasonable ground for the arrest or detention of such person32.

SAFEGUARDS

Where any person is arrested or detained that person shall -

(a)  immediately be told the reason for his arrest or detention;

(b)  forthwith be taken before a Justice of the Peace who shall determine whether or not there are reasonable grounds for the arrest or detention.

If a Justice of the Peace is satisfied that the detention or arrest of any person is reasonably required in the interest of justice he may, having regard to such further investigations as may be necessary, order that -

(a)  such person shall be remanded in custody for a period not exceeding twenty-four hours; and

(b)  at the expiration of the period of twenty-four hours, the person shall be taken before a Resident Magistrate33

Where a Justice of the Peace is not satisfied that the detention or arrest of any person is reasonably required in the interest of justice, he shall order that the person be released forthwith34.

CONCLUSION

In our view at the Office of the DPP the phraseology ‘preventative detention’ is merely descriptive of what powers the common law has always provided for a Constable where that Constable is arresting a citizen who is reasonably suspected to be about to commit an offence– no more and no less. We have deliberately sought to trace the history of this functionary, that is, the Constable as well as to examine the issues of “arrest” and reasonable suspicion. This will show that the power of the Constable to arrest a citizen once they have reasonable cause to suspect that this citizen is about to commit an offence was well known at common law and has been recognised by the Constitution. Again we reiterate that the phrase “preventative detention” is interchangeable with the phrase “preventative arrest” in the context previously outlined.

It is hoped that this opinion prepared in consultation with me, by the Legal and Legislative Unit of the Office of the DPP headed by Mr. Jeremy Taylor, Senior Deputy Director of Public Prosecutions, will provide clarity in discussions on this matters in the public domain.

Ms. Paula V. Llewellyn, Q.C.  
Director of Public Prosecutions