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Lawyer: INDECOM should outsource prosecutorial function

Published:Friday | October 18, 2013 | 12:00 AM

Edmond Campbell, Senior Staff Reporter

TOP-FLIGHT criminal lawyer Senator Tom Tavares-Finson has suggested that the Independent Commission of Investigations (INDECOM) should farm out its prosecutorial function to private counsel.

The opposition senator's proposal comes against the background of concerns raised by retired medical practitioner Dr Winston Dawes about the combined powers granted to INDECOM without being subject to oversight.

In a presentation Wednesday to a joint select committee of Parliament, reviewing the INDECOM Act, Dawes argued that the commission's mandate which covers investigation, arrest and prosecution, constitutes a dangerous concentration of power vested in the police oversight body.

"The problem I have with this is that it is open to abuse and people can fit the facts based on their point of view. So if members of INDECOM are anti police, they can then slant their investigations to get certain results," Dawes opined.

Tavares-Finson was sympathetic to Dawes' argument noting that there was some amount of unease in relation to INDECOM's powers to investigate, charge and prosecute.

While acknowledging that he concurred with the judgment of the court that gives INDECOM the power to prosecute members of the security forces who breach the Act, Tavares-Finson said: "There is some basis for the unease that people feel about your department actually prosecuting the matters.

"There is a basic unease with the notion of someone actually prosecuting the case who has been involved in the investigation," he added.

The Jamaica Defence Force's (JDF) legal officer, Lieutenant Colonel Patrick Cole, told committee members that there should be a firewall between investigation and prosecution because the prosecutor should be balanced in his approach.

procedurally unfair

"As we have seen in our jurisprudence, the prosecutor should be a minister of justice, that means he holds scales evenly. Now if you have the investigator also being the prosecutor, we are saying that it can be procedurally unfair," the JDF counsel contended.

Responding to the concerns, INDECOM Commissioner Terrence Williams said there were cases in the common law where prosecutors did not participate in the investigation and have misconducted themselves.

"The fact that you are part or not part of an institution or body which is investigating doesn't preserve ethics in and of itself," he said.

Williams said the commission had proposed in its submission to Parliament that counsel could be instructed to do prosecutions on behalf of INDECOM.

The head of the police oversight body said he did not expect a prosecutor to be involved in an investigation, carrying out interviews and collecting evidence at the crime scene.

He said the commission would have in place an internal firewall protection to prevent seepage from prosecution into investigation.

Williams said he would have no problem with this internal firewall protection being institutionalised in the legislation.

edmond.campbell@gleanerjm.com