INDECOM has powers of arrest, court rules
Barbara Gayle, Justice Coordinator
The Independent Commission of Investigations (INDECOM), which is headed by attorney-at-law Terrence Williams, scored a major victory yesterday when the Constitutional Court ruled that INDECOM and its investigators had the power to arrest, charge, and prosecute members of the Jamaica Constabulary Force.
A number of police groups, including the Jamaica Police Federation, the Police Officers' Association, the Special Constabulary Force Association, and the United District Constable's Association, took INDECOM to court seeking declarations that under the INDECOM Act, it had no power to arrest and charge the police.
The application was filed after INDECOM investigators arrested and charged Corporal Malica Reid with the murder of Negril businessman Frederick 'Mickey' Hill in November 2010. The director of public prosecutions (DPP) terminated the proceedings on the basis that INDECOM members did not have the power to bring the case before the court. The DPP then instituted her own proceedings against Reid.
Justices Horace Marsh, Lennox Campbell, and David Fraser handed down the unanimous decision yesterday.
Marsh, in his written judgment, said: "The INDECOM commissioner and his investigators have the power of arrest both under common law and by virtue of the [INDECOM] Act, having been conferred with powers of a constable by virtue of Section 20 of the said act." He said also that INDECOM and its investigators have the powers of common law to charge persons as well as to initiate prosecution of members of the police force for the purposes of the act.
"There is no requirement for prior ruling by the DPP before members of the police force can be arrested and charged by INDECOM and its investigators," the court held.
However, the court ruled that "the powers of the INDECOM commissioner and his investigators in no way dilute the DPP's constitutional authority to continue, take over, or discontinue any prosecution where such a course is deemed by the DPP".
DPP DECLINES TO COMMENT
DPP Paula Llewellyn, who had appeared in the matter as a friend of the court, said yesterday that she had no comment to make on the ruling as she had not yet seen the judgment.
Attorneys-at-law Donald Gittens and Seymour Stewart, who represented the claimants, had argued that the INDECOM Act and common law did not confer powers on INDECOM and its investigators to arrest and charge anyone for a criminal offence.
Attorneys-at-law Richard Small and Shawn Wilkinson, who represented INDECOM, had argued that if INDECOM and its agents did not have the powers of arrest, it would result in an absurdity, which could not have been the intention of Parliament. They argued that under the INDECOM Act and at common law, INDECOM and its agents had the power to arrest and prosecute.
INDECOM was established by Parliament in 2010 to investigate allegations of misconduct by members of the security forces.