May 4, 2020 – The Judicial Committee of the Privy Council has delivered its decision concerning the general work and authority of The Independent Commission of Investigations (INDECOM) and effective police accountability. The consolidated cases (INDECOM vs Police Federation and Lewin v Albert Diah) concerned issues that have spanned the lifetime of the Commission, originating from circumstances in 2011 and 2013.
The Privy Council was presented with issues for consideration:
- Whether INDECOM, the Commissioner of INDECOM and/or INDECOM’s investigative staff can, in their official capacity arrest and/or initiate a prosecution;
- Whether a claim of uncertainty about the lawfulness of a request made by an INDECOM investigator can amount to a lawful justification for failure to comply with that request;
- Whether a claim by a police officer that he or she is following the instruction of a superior officer can amount to a lawful justification for failure to comply with a request made by an INDECOM Investigator; and
- Whether INDECOM’s investigative procedures and requests need to be published in police Force Orders or otherwise be made known to police command as a condition for the police officer to obey the request.
Judgment of the Privy Council
The Privy Council has ruled that:
- INDECOM, the Commissioner of INDECOM and/or INDECOM’s investigative staff may prosecute offences that arise from s. 33 of the Act (e.g. resistance, obstruction, or false statements during the investigation) but not prosecute or arrest in any offence arising from the incident itself (e.g. murder, wounding).
- The Court of Appeal erred in quashing the conviction of Deputy Superintendent Albert Diah for resisting INDECOM’s request as:
- that request did not need the foreknowledge of police command;
- It was no defence to say that he was uncertain on the law; and
- It was no defence to say that he was following a superior’s order.
The Commission notes that this is the first time in about four decades that the Privy Council has reversed a decision of the Jamaican Court of Appeal that had quashed a conviction. The Commission is pleased for this particular ruling, as if the decision of the Court of Appeal was affirmed, it would threaten the independence of INDECOM’s investigation. INDECOM encourages police officers to appreciate INDECOM’s investigative authority and to be cooperative and courteous.
The Commissioner of INDECOM, Terrence Williams, noted that “as the points were decided only partly in favour of the Commission’s arguments, the Commission is hopeful that there will be continuation of the efforts to reform the INDECOM Act, as agreed five years ago by the Joint Select Committee of Parliament.
The Albert Diah Case
On August 29, 2013, INDECOM received a report and commenced an investigation into the fatal shooting of a young woman in St. Catherine. During the investigation, then Deputy Superintendent Albert Diah, refused to comply with instructions of INDECOM Investigators and prevented certain investigative steps, namely the processing of firearms. On November 20, 2013, Deputy Superintendent Diah, by summons, was charged with (i) Obstructing the Commission and (ii) Failing to comply with a lawful requirement. On October 31, 2014, Deputy Superintendent Diah was convicted and the following month (November 20) sentenced to pay a fine of $400,000.00.
Following the conviction, Deputy Superintendent Diah appealed both the conviction and sentencing. The ruling of the Court of Appeal on March 16, 2018, by majority order (Phillips and Williams JJA), with Brooks JA dissenting, allowed the appeal against the convictions for breaches of s.33 of the INDECOM Act and set aside his sentence. Formal verdicts of acquittals were substituted.
The Police Federation Case
The case was first argued before the Full Court in February 2012 and a ruling delivered on July 30, 2013. The Court concluded that:
- INDECOM have the power of arrest both under common law and by virtue of the Act, having been conferred with the powers of a constable;
- The Commissioner and investigative staff have powers at common law to charge and initiate prosecutions of members of the Police Force
- No requirement for a ruling of the DPP to arrest and charge officers
- Powers of INDECOM to arrest, charge and prosecute does not undermine the constitutional authority of the DPP.
The matter was argued before the Court of Appeal in 2016 and a judgment delivered on March 16, 2018.