Sunday 9 August, 2020

Privy Council upholds Court of Appeal ruling on INDECOM powers

The United Kingdom-based Privy Council has upheld a Jamaican court ruling that the Caribbean island's Independent Commission of Investigation (INDECOM) has no power to arrest or prosecute police personnel.

The Judicial Committee of the Privy Council, Jamaica’s final appellate court, handed down the judgment on Monday morning.

INDECOM had presented arguments in February of this year, urging the Privy Council to overturn the Court of Appeal’s decision which indicated that the commission does not have the power under section 20 of the INDECOM Act, to arrest, charge or prosecute any member of the Jamaica Constabulary Force (JCF) or any other person.

The Appeal Court, in a 2-1 decision, said INDECOM officers as private citizens, could carry out arrests and prosecution under common-law without the permission of, or a ruling from the director of public prosecutions (DPP).

According to the Privy Council, two preliminary issues were of concerns, which are the legal status of INDECOM and its capacity to act and the interpretation of the INDECOM Act.

The law lords ruled that although the Act does not expressly incorporate the Commission, it creates the Commission as a distinct entity with perpetual succession, which consequently places it in a position of analogues to that of a statutory corporation, as quasi-corporation.

The Privy Council said the commission only has the powers conferred directly or indirectly upon it by the Act or other relevant legislation.

According to the Privy Council, it is clear that the Commission’s role is investigative from the long title of the Act, and from section 4, which sets out the Commission’s functions. The act does not confer any express powers on the Commissioner, the Commission or its staff to prosecute incident offences.

Meanwhile, the Police Federation, which had brought the matter to the Jamaican Court of Appeal on behalf of Deputy Superintendent of Police (DSP) Albert Diah, said it welcomes the decision of the Privy Council.

In a statement, the Police Federation thanked both the local and UK-based attorneys who worked on the case and said the ruling was “a victory for all of us”.

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