March 16, 2018 – The Independent Commission of Investigations (INDECOM) accepts in part the ruling of the Court of Appeal handed down this afternoon (March 16, 2018). The judgment confirmed that INDECOM can arrest, charge, initiate prosecutions and conduct prosecutions under common law without the permission of the Director of Public Prosecutions.

The Court ruled that INDECOM, as an organization or body, is not a legal person and therefore cannot arrest, charge or prosecute, under the Act in any statute or at common law. This was not a concern to INDECOM as charges are laid by individual investigators employed by INDECOM. [Order 2 (i)]

However, the Commissioner of INDECOM and his investigative staff can arrest, charge and prosecute at common law. [Order 2 (iv-v)]

The Commissioner of INDECOM and his investigative staff can exercise the powers of arrest, charge and prosecution without a ruling from the DPP. [Order 2 (vi)]

The Court further ruled that, on a prosecution brought by an INDECOM investigator, the investigator can have that prosecution conducted by Counsel of his or her choice without needing the permission of the DPP.

The Court disagreed that INDECOM under section 20 had the power to arrest, charge and prosecute. This specific ruling will be reviewed further by the Commission and a decision made regarding appeal. [Order 2 (ii)]

The Order of the judgment reads:

  1. The appeal against the decision of the Full Court delivered on 30 July 2013 is allowed in part, as the Full Court recognized that the Independent Commission of Investigations Act, 2010 (the Act) does not confer the power to charge, but incorrectly declined to grant further declarations.

 

  1. The order of the Full Court is set aside and the following order is substituted:

(i) the Independent Commission of Investigations (INDECOM) is not empowered by section 20 of the Act, statute or common law to arrest, charge or prosecute any person for any criminal offence;

(ii) section 20 of the Act does not empower the 1st respondent or any of his investigative staff to arrest, charge or prosecute any person for any criminal offence.

(iii) section 33 of the Act does not create an offence which would ordinarily empower the 1st respondent or any of his investigative staff to arrest any person for a breach of that section;

(iv) the Act does not abrogate the common law right possessed by the 1st respondent and each member of his investigative staff, in their respective private capacities, to initiate a private prosecution against any person for any criminal offence under section 33 of the Act;

(v) subject to restrictions that exist at common law, the Act does not abrogate the common law right possessed by the 1st respondent and each member of his investigative staff, in their respective private capacities to arrest or charge any person or initiate a private prosecution against any person for any criminal offence; and

(vi) the 1st respondent and his investigative staff may exercise their said private rights at common law without first obtaining a ruling from, or the permission of, the Director of Public Prosecutions.

 

  1. No order as to costs.

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