ttorney Arthur Kitchin put up a strong fight last week Thursday to convince the Court of Appeal that a policeman, who merely begged a chance for someone who was being arrested, did not warrant a severe penalty such as dismissal from the Jamaica Constabulary Force.
The court, after hearing lengthy submissions from Mr. Kitchin on the circumstances of the case and the regulations governing the Police Force, upheld the submissions and set aside the dismissal order.
Constable Fitzroy Clarke, who was dismissed from the Force in May 1998, will have his case sent back to the police commissioner, who will have to impose a penalty under Part 2 of the Second Schedule of the Police Service Regulations 1961, which deals with minor offences. The relevant sections state that the penalties which may be imposed on members below the rank of inspector, in respect of minor offences dealt with summarily (by the commissioner) are:
a) deprivation of pay for a period not exceeding four days;
b) confinement to barracks for a period not exceeding five days;
c) severe reprimand; and
d) caution.
Cons. Clarke was dismissed from the Police Force after he was found guilty of two charges at a Court of Enquiry, which heard disciplinary charges brought against him. A letter, dated April 30, was sent to him informing him that he was dismissed from the Force with effect from May 15, 1998, in respect to two charges.
Charge one stated that "you being a member of the Jamaica Constabulary Force conducted yourself contrary to the discipline, good order and guidance of the Force in that you openly admitted to Constable C. Benbow who was effecting an arrest on Seymour Spence for breach of the Dangerous Drugs Act that you gave Seymour Spence bags containing ganja to 'juggle' (sale) and that you said 'juggling haffi go on' at Ward Avenue, Mandeville in the parish of Manchester on January 13, 1995 at about 6.30 p.m. and such action tends to cause discredit to the Jamaica Constabulary Force".
He was also dismissed in relation to charge two, which stated that "you being a member of the Jamaica Constabulary Force conducted yourself contrary to the discipline, good order and guidance of the Force in that you attempted to influence Constable Benbow not to take action against Seymour Spence who committed a breach of the Dangerous Drugs Act by telling Constable Benbow to give Seymour Spence (the accused) a chance".
Challenge
Cons. Clarke filed a motion in the Supreme Court challenging his dismissal. The Full Court dismissed the motion on January 28 last year. He filed an appeal on the ground that the Full Court erred in law by failing to find that the police commissioner acted without or in excess of his jurisdiction by taking into account matters which he ought not to have taken into account in arriving at his decision or that his decision was unreasonable.
It was also argued that the Full Court erred in law by failing to find that although there was no evidence to support charge one, the said disciplinary charge was so inextricably linked with charge two that an adverse finding by the Court of Enquiry in respect to charge one would have operated unfairly to Cons. Clarke's prejudice.
Two policemen had testified at the Court of Enquiry that they received a report on January 13, 1995 and went to Ward Avenue. They went to a shack some distance from the road where they saw Spence with the ganja in two plastic bags. They said that they saw Cons. Clarke at the entrance to the shack on Ward Avenue. One of the policemen said that Cons. Clarke was present when Spence said he gave him the ganja to juggle and Cons. Clarke did not deny the accusation but only begged for a chance for Spence.
The other policeman said Cons. Clarke was not present when Spence said Constable Clarke gave him the ganja to "juggle".
Cons. Clarke testified at the Court of Enquiry and denied giving Spence the ganja. He said he knew Spence, who was a mechanic who fixed the police service vehicle. Spence also testiifed and he said he did not tell anyone that Cons. Clarke had given him any ganja to "juggle". He said he was convicted of the ganja charges and fined $5,000 or six months.
Attorney Lackston Robinson, from the Attorney-General's Department, conceded in the Court of Appeal that there was no evidence to support charge one against Cons. Clarke, therefore the commissioner was in error in dismissing him on that charge. Mr. Robinson said further that the commissioner was correct in dismissing Cons. Clarke on charge two.
The Court of Appeal, comprising Ian Forte, president of the Court of Appeal, Justice Clarence Walker and Justice Howard Cooke, posed several questions and referred to the fact that there was a discrepancy in the evidence given by the two policemen at the Court of Enquiry.
The court, in allowing the appeal, said that charge one, not having been proved, then charge two standing by itself, as Mr. Kitchin argued, fell properly under section 29 of the Second Schedule of the Police Service Regulations 1961, which deals with minor offences.
The court set aside the Full Court's ruling and quashed the commissoner's order dismissing Cons. Clarke from the Police Force. The court ordered that the commissioner must determine the appropriate penalty which must be imposed in relation to the minor offence.
