CONFRONTING THE

CHALLENGES: A Report on INDECOM’s First Year,

Current Investigations, and a

Special Investigation into the

Identification of JCF and JDF

Personnel During Operations.

[2]

TABLE OF CONTENTS

Chapter I: Introduction 5-8

Chapter II: Challenges and Approaches 9

Previous Institutions 10-11

Achieving Effectiveness:

Delay 12-14

Delays Regarding DPP’s Ruling 14-16

Delayed Forensic Analysis 16-17

Powers to Arrest 17-18

Special Investigation into the Identification of JCF and JDF Personnel During Operations:

Introduction 18-19

Poor Record Keeping 19-20

Mask Wearing and Obscured Badge Numbers 21-23

Challenges to INDECOM Investigations:

Access to Records 24-26

Chapter III: Proposals for Legal Reform 27

Powers of a Constable 28-31

Examination of Documents 31-33

Members of the Security Forces to Remain for Examination 33-34

Limited Admissibility of Compelled Answers 35-38

Procedure for Judicial Review 39--40

Corrections 40

[3]

Coroner’s Inquests 41-42

Chapter IV: Recommendations for Action (Pursuant to Section 23) 43

Jamaica Defence Force (JDF) Identification Numbers 44-46

Identification Numbers (JCF) 46--47

Minimising the Risk of Collusion 47

Chapter V: Corporate Services Division 48

Human Resources 49-50

Office Locations 50-51

Office Management/ Procurement Department 51

Finance & Accounting Department 52

Police Public Complaints Authority 52-53

Estimates of Expenditure 53-54

FINMAN Accounting Software 54

Information Technology 55

Appendices 56

Rulings Issued by the Director of Public Prosecutions 57-62

Cases Awaiting Ruling from the Director of Public Prosecutions 63-67

[4]

Total Complaints by Parish (2011) 68-69

Categorization of Concerned Officer by Rank (2010) 70

Disposal of Complaints (2010) 71

Categorization of Complaints (2010) 72

Total Complaints by Parish (2011) 73-74

Disposal of Complaints (2011) 75-76

Categorization of Complaints (2011) 77-78

Age Group of Complainants 79

Case Management Status Reports: Team A [i]-[cxxxvii]

[5]

Chapter I

[6]

1. INTRODUCTION

1.1 The Independent Commission of Investigations (INDECOM) was founded to

offer effective and independent investigations of allegations of the abuse of the

rights of citizens by members of the Security Forces1. The initial tasks were to

appreciate the legal mandate, review prevailing practices, settle organizational

structure, seek budgetary support, procure the necessary facilities and

equipment, and hire and train staff. During this period INDECOM has also

continued investigations started under the Police Public Complaints Authority

(PPCA) and commenced new investigations in response to incidents and

complaints.

1.2 The arrangements for the investigation of the alleged abuses of the rights of the

citizen prior to the inauguration of INDECOM were often not compliant with the

international standards concerning the right to life. The Independent

Commission of Investigations Act (“the Act”) has been a step forward but an

urgent need for further reforms remains to clarify or ensure that:

(a) INDECOM has the same powers and authorities to investigate, arrest and charge members of the Security Forces suspected of crime as the Jamaica Constabulary Force (“JCF”) has concerning the ordinary citizen;

(b) the agents of the state are accountable for the use of force; and (c) investigations are completed with promptitude.

1.3 It is humbly submitted that, absent these proposed reforms, the State remains in

jeopardy of breaching its international obligations regarding the right to life.

1.4 The State, where its agents take life or otherwise use force against the citizen, is

required to conduct an independent and effective investigation2.

1JCF, ISCF, Rural Police, JDF and Corrections. 2 UN Principles on the Effective Prosecution and Investigation, McCann v UK (1995) 21 EHHR 97 [193].

[7]

1.5 An effective investigation must determine whether or not the use of force was

justified and, where found unjustified, identify the culpable state agents so that

they may be subjected to trial and possible punishment3. Lord Bingham of

Cornhill explained:

“The purposes of such an investigation are clear: to ensure so far as possible that the full facts are brought to light; that culpable and discreditable conduct is exposed and brought to public notice; that suspicion of deliberate wrongdoing (if unjustified) is allayed; that dangerous practices and procedures are rectified; and that those who have lost their relative may at least have the satisfaction of knowing that lessons learned from his death may save the lives of others.”

1.6 The modern view of an independent investigation requires that the investigator

have no hierarchal or institutional connection with the suspected offenders and

exercise practical independence4. The Act has, in this regard, improved the

arrangements in Jamaica by establishing an independent agency to conduct these

investigations.

1.7 A fundamental principle of an effective investigation is promptitude5. Therefore,

merely creating an independent agency will not suffice. Jamaica’s arrangements

for investigation of the use of force by State agents continue to be plagued by

delay, inertia and lack of adequate resources. INDECOM’s early operations have

confronted these problems and this report suggests further steps that ought to be

taken to ensure compliance with the mandate. The most important reform

proposed calls for immediate increase in human and material resources at the

Jamaica Constabulary Force Forensic Laboratory as, under the current

arrangements, investigations are routinely delayed for over a year awaiting the

results of testing. 3 UN Principles paragraph 9 and 18, Jordan v UK (2001) 37 EHHR 52 [107] 4 Edwards v UK (2002) 35 EHHR 487 [69] 5 Edwards v UK (2002) 35 EHHR 487 [72]

[8]

1.8 Of particular note was the ease with which an agent of the State can be

anonymous in his or her interaction with the public and how this anonymity

contributes to lack of accountability and impunity. To combat this challenge

greater supervision and enforcement of existing rules is the first step. We further

recommend extending the requirement to wear identification numbers to the

gazetted ranks of the police force and to the army, when engaged in internal

security operations. Finally, we recommend the reconsideration or ending of

practices that do not encourage whistle-blowing.

[9]

Chapter II

[10]

2. CHALLENGES AND APPROACHES

Previous Institutions

2.1 In the Michael Gayle Case, the Inter-American Commission of Human Rights

(“IACHR”) found that the investigative arrangements in Jamaica failed each of the

requirements of impartiality, promptitude and effectiveness6. They urged the formation

of an independent body:

“...with the authority to fully and effectively investigate...in a manner that would result in the criminal prosecution and punishment of those responsible”7

2.2 INDECOM replaced the PPCA as the sole independent agency concerned with

these investigations. The PPCA reportedly suffered from the false perception that

it was a part of the police force, inadequate powers, failure to fully utilise

investigative powers, and inadequate resources8.

Figure 1

6 Report No 92/05 Case 12.418, Oct 24, 2005. 7 Paragraph 94. 8 Michael Gayle paragraph 96.

[11]

2.3 The JCF has had two (2) main formations engaged in the investigation of alleged

abuses by their membership: The Bureau of Special Investigations (BSI) and the

Inspectorate Branch (IB). The BSI investigates police and JDF shootings whilst the

IB is concerned with other alleged malfeasances by members of the JCF.

However, it is to be noted that the BSI is currently winding-down its operations.

2.4 Clearly an investigation undertaken by these JCF formations would not satisfy

the requirements of independence. These formations themselves reportedly

suffer from inadequate resources.

Figure 2

2.5 As Figures 1 and 2 above show, the agencies had heavy workloads, difficulty

completing investigations, and strikingly low charge or conviction rates. Indeed,

a suspected officer was more likely to abscond than to be convicted.

Cases investigated

Investigations completed

Charges

Convictions

Absconded

0 500 1000 1500 2000 2500 3000 3500 4000 4500 5000

4508

3077

255

17

24

BSI Disposal of Cases from July 1, 1999 to July 12, 2011

[12]

Achieving Effectiveness

Delay

2.6 Investigations of alleged abuses have not always met the aforementioned

standards for effectiveness as illustrated in some reviewed cases where

investigators failed to:

(a) conduct the ordinary identification procedures that would cause a witness’s evidence to be treated as reliable9;

(b) cause to be promptly conducted the ordinary forensic examination of suspected members of the Security Forces10;

(c) cause to be promptly conducted the ordinary forensic examination of the alleged scenes of crime11;

(d) secure records essential to proving charges against members of the Security Forces12; and

(e) promptly collect statements from, or conduct interviews with, members of the Security Forces suspected of committing or witnessing incidents13.

2.7 Indubitably these missteps are not a feature of all cases but continue to be

observed in current investigations.

2.8 Failure to observe promptitude is the mainstay of these shortcomings. There are

four (4) main reasons:

(a) inordinate delays in receiving the results of forensic analyses;

(b) lethargy in collecting statements from members of the Security Forces;

(c) difficulties in identifying the member of the Security Forces

suspected of committing the crime; and

(d) inordinate delays in obtaining rulings from the Director of Public Prosecutions (DPP).

9 Janice Allen, DPP’s ruling on Bull Bay Case and others. 10 IACHR report on Michael Gayle, DPP ruling on Supt Hewitt. 11 IACHR report on Michael Gayle. 12 Janice Allen. 13 IACHR on Michael Gayle.

[13]

Figure 3

2.9 Cases where the ordinary citizen is suspected as being culpable do not suffer

these endemic delays. This differing treatment is not required by law and

contributes to the worsening of public confidence, the fading of the memories of

witnesses and the increasing of opportunity for suspects to tamper with potential

evidence or flee the jurisdiction.

2.10 First, where other evidence exists, the ordinary citizen would be arrested and

charged but his trial would await the results of forensic tests. For cases involving

members of the Security Forces, charges would often not be brought until the file

is complete.

2.11 Secondly, the DPP’s ruling would not normally be sought before arresting and

charging an ordinary citizen even in a case where the ordinary citizen is

suspected of having committed the same serious offences where, for the

members of the Security Forces, such ruling would almost always be sought.

[14]

2.12 Thirdly, in a case where the ordinary citizen is suspected of serious crime the

investigator is likely to promptly detain suspects and question them.

Delays Regarding DPP’s Ruling

2.13 In the past year, rulings from the DPP have been issued, on average, 27 months14

after the final submission of the file. The usefulness of seeking the DPP’s ruling

must be considered. Certainly, allegations against agents of the state may

sometimes present issues not seen in all cases concerning allegations against the

ordinary citizen; the significant feature being negating self-defence. Nevertheless

the cases involving the ordinary citizen that clearly present this very issue do not

suffer from these procedural delays, the issue remaining ultimately to be

determined by the tribunal of fact.

2.14 Prosecutions for all offences ordinarily begin at the Resident Magistrate’s Court

with the laying of information. Where the ordinary citizen is to be charged the

DPP normally plays no initial role in either reviewing the case file or granting

permission for the commencement of a prosecution. In these serious cases the

procedural steps would be convincing a Justice of the Peace as to the cogency of

their suspicion to put the case before the court, thereafter, the witnesses would

testify before a magistrate to determine if sufficient evidence exists for a trial.

This procedure protects all citizens including members of the Security Forces. We

submit that there is nothing in law calling for the members of the Security

Forces to enjoy any exceptional procedure.

2.15 Seeking the advice of the DPP might, in cases of complex legal issues, be

advantageous; but in the vast majority of cases of suspected abuse by a member 14

[15]

of the Security Forces, a well-trained and supervised investigator ought to be

able to determine whether the evidence is sufficient to charge.

2.16 The result of all of this is that when the DPP’s office heavy trial workload is

combined with the large number of complaints against the Security Forces, the

rulings on the latter complaints take a protracted time for completion.

2.17 The incumbent DPP is quoted as advocating that the current practice of the JCF

in almost always seeking her ruling before charging their members be

abandoned as this contributes to extensive and lengthy delay15.

2.18 In addition to the delay, the difference in procedure is arguably biased as it

prefers the police officer’s complaint over the ordinary citizens’. Incidents where

a police interaction with the citizen results in both sides making a complaint of

criminal conduct against the other illustrate. The police officer’s complaint will

almost immediately lead to a charge against the citizen. The citizen may suffer

immediate deprivation of liberty and face the courts with some dispatch.

Meanwhile, the citizen’s complaint will suffer the systemic delays of the current

procedure and, on average, take a year to see charges brought against the

policeman; that is, the stage the police officer’s complaint had reached almost

immediately.

2.19 Experience has shown that, in these circumstances, the citizen complainant, faced

with the anxiety and expense of defending himself in a criminal charge, often

becomes reticent and convinced that justice is imbalanced.

2.20 This state of affairs could encourage a rogue policeman, having committed a

criminal act against a citizen, to bring invented charges against the citizen. The

IACHR report on the killing of Michael Gayle by members of the JDF and JCF 15Daily Gleaner, “Corrupt Cops Should be arrested Immediately-DPP”, Friday, April 25, 2011.

[16]

reveals that after Gayle had suffered his brutal beating he was charged by a

policeman present with assault offences. The charge was later admitted to be

false. If Gayle had survived the beating he was likely to have faced the court on

these charges whilst his own complaint floundered.16

2.21 The Act requires INDECOM to have significant legal expertise reviewing

completed investigations. Indeed, this internal structure is superior to the

arrangements in the JCF. INDECOM is therefore well placed to make the

appropriate decisions regarding the commencement of proceedings.

Delayed Forensic Analysis

2.22 Ninety-five per cent (95%) of incomplete shooting related cases are awaiting the

results of forensic testing. Cases have been delayed for up to two (2) years

awaiting forensic results. Please see Figure 3 above which shows that the BSI has

a total of two hundred and seventy-nine (279) cases awaiting forensic analysis.

2.23 Forensic analysis is an essential part of modern investigations with the most

important tests being ballistic identification and gunshot residue testing. Ballistic

identification can discover whether a projectile or spent shell found in the victim

or on the scene of an incident came from the weapon issued to a member of the

Security Forces. Gunshot residue testing can assist in refuting or supporting a

contention that someone recently fired a weapon.

2.24 The Jamaica Constabulary Force’s Forensic Laboratory (the “Forensic Lab”) is

staffed by well qualified and experienced experts in various forensic disciplines.

The completion of their testing in a reasonable time is severely hampered by

their having to face Jamaica’s heavy workload with inadequate equipment and

staffing. During a tour of the Forensic Lab INDECOM was advised that gunshot 16 Michael Gayle v. Jamaica, Case 191/02, Rep. No. 8/03 I.A.C.H.R.

[17]

residue testing was one year behind and that ballistic testing was significantly

behind.

2.25 In many cases a member of the Security Forces cannot be charged without an

unfavourable result from the scientific analysis. In others the prosecutor might be

reluctant to advise charging without having sight of these results. Speedy

scientific analysis is vital.

2.26 Unless arrangements are made to improve the operations of the Forensic Lab, or

INDECOM be provided with budgetary allocations to access private local and

overseas laboratories, Jamaica will remain non-compliant with the standards for

effective and expeditious investigations. A similar recommendation was made

by the learned DPP in her detailed reasons for not deciding to resume

prosecution in the Janice Allen case.17

Powers to Arrest

2.27 On the 15th day of October, 23rd day of November and the 20th day of December,

2010 INDECOM hosted meetings with heads of the JCF and JDF, the DPP and a

representative of the Solicitor General to discuss and settle on a protocol for,

among other things, the arrest and charging of members of the Security Forces by

officers of INDECOM. Thereafter INDECOM brought charges in two (2) matters.

This power has been subjected to challenge.

2.28 If INDECOM has no power to arrest and charge the requirements for

impartiality and effectiveness will not be met as the assistance of the JCF would

always be required before a member of the Security Forces is charged. For

example:

17 Page 32-34.

[18]

(a) INDECOM would have to refer completed files to the JCF, ask them to consider it, and hope that they concur with our findings and thereupon arrest and charge; and

(b) an INDECOM investigator could not detain a member of the Security Forces suspected of crime to collect samples in the same circumstances as a constable would detain an ordinary citizen.

Special Investigation Conducted into the Identification of JCF and JDF Personnel

During Operations

Introduction

2.29 On the 6th day of September, 2010, INDECOM, pursuant to Sections 13 and 4 of

the Act, commenced an investigation into the identification of JCF and JDF

personnel during operations touching particularly on the difficulty in citizens

making cogent identifications for evidential purposes. This was the result of

reviewing files which repeatedly showed difficulty in this area as well as

numerous reports of soldiers and policemen wearing masks or policemen

obscuring badge numbers.

2.30 In this special investigation, the views of the JDF, JCF, Jamaicans for Justice,

Police Civilian Oversight Authority, Public Defender, and the Independent

Jamaica Council for Human Rights were sought. In addition, we reviewed

existing files and past investigations as well as sought of the view of the general

public by use of social networking.

2.31 Proper identification of the suspected member of the Security Forces remains a

significant struggle. In many cases agents of the State are able to be practically

anonymous in their interaction with the citizen. Anonymity encourages

impunity. Anonymity is sometimes achieved as:

[19]

(a) uniforms make it difficult for witnesses to make a visual identification;

(b) identification parade procedures are often not effectively employed;

(c) some members of the JCF fail to display their identification

numbers;

(d) some members of the Security Forces are not required to wear identification numbers;

(e) some members of the Security Forces sometimes wear masks;

(f) JCF records are sometimes not properly maintained

complicating, and sometimes preventing for example, proof of the members of the Security Forces involved in an operation or the weapons issued to them; and

(g) members of the Security Forces are sometimes loathe, or unable,

to name their colleagues involved in operations in which a citizen was killed or injured.

Poor record keeping

2.32 The Janice Allen case exemplifies how poor JCF record keeping ,combined with

failure to employ identification parade procedures, made it impossible to

cogently identify the suspect police officer. The loss of the firearm register was at

the end of an unfortunate series of events which included the fact that the police

investigators were unable to determine who issued the firearm to the suspected

officer.

2.33 In the DPP’s decision not to reopen the prosecution in the Janice Allen case,

recommendations were made to improve the JCF’s record keeping. These

included:

(i) that documents or records be kept as per Force policy and regular inspections be conducted to ensure compliance;

[20]

(ii) establishment of a central records depository or designating a safe place above ground at Police Stations to store records no longer in use to prevent destruction by vermin or natural occurrences;

(iii) records be secured once a police shooting is under investigation;

(iv) Force policy to be implemented to ensure that the person issuing firearms to officers immediately writes a statement regarding such issuance. The statement must contain information regarding: (a) name of the relevant officers; (b) date the firearm was issued; (c) type of firearm issued; (d) serial number of firearm issued; (e) number of rounds issued; (f) where the operation took place; and, (g) any other pertinent information;

(v) immediate departmental action should be taken against an officer where that officer fails to write a statement in the terms outlined in (iv) above; and

(vi) investigators investigating police shootings are to ensure that certified copies of Firearms Register entries are made at the earliest opportunity.

2.34 Despite these recommendations, the problems observed in Janice Allen still

continue. In other cases the suspect police officers would not turn their firearms

over directly to the investigator.

2.35 We continue to see many instances of poorly kept records that ought to identify,

among other things, police personnel involved in operations, firearms or

ammunition issued to such personnel, firearms reportedly recovered, and the

condition of citizens taken into custody. Further, in the case of the R v. Collin

Mann18 , the Court of Appeal quashed a conviction having found favour with

submissions and evidence that a police record had been tampered with to

strengthen the case against the appellant. INDECOM intends to make further

enquiries into the maintenance and update of records in the Security Forces and

the Department of Corrections.

18 SCCA, No. 1 of 2003 (Judgement delivered July 30th, 2004).

[21]

Mask Wearing and Obscured Badge Numbers

Mask-wearing Police Officer on Operation (Bing images)

Foreground- Officer badge number not visible Background – Officer badge number on ballistic vest (Bing Images)

[22]

Two police officers left of centre with handkerchiefs covering faces and no badge number displayed. (Bing images)

JDF soldier wearing mask (Gleaner images)

[23]

2.36 Statements and reports from members of the public allege that on several

occasions police personnel fail to display their numbers and/or wear masks,

making it difficult for identification. Our internet poll revealed that over seventy

(70) per cent of respondents claimed that in their interaction with the police, the

identification number could not be seen or was difficult to recall. Over ten (10)

per cent reported that the police officers were masked or that their gear made

identification impossible. These poll findings, although unscientific, are largely

consistent with our investigative findings.

Figure 4

JDF soldiers with faces obscured (AP images through Bing)

[24]

Challenges to INDECOM Investigations

Access to Records

2.37 In our investigations we have experienced varying treatment as regards access to

records held by the JCF and JDF. Sometimes we have been told that:

(a) we will need a warrant from a Justice of the Peace;

(b) we will need to call ahead before inspecting; or

(c) for each request, the relevant Force will have to seek the

advice of the Defence Board or the Solicitor General.

The PPCA suffered no such impediments. It is disconcerting that INDECOM

investigations have been so stymied.

2.38 For effective investigations INDECOM must have immediate access to records

held by the Security Forces to ensure that they are not lost or tampered with and

those investigations can be speedily conducted.

2.39 Indeed, in the Janice Allen case, the DPP recommended that investigators of

suspicious police shootings take prompt custody of the relevant records19 held by

the Security Forces.

Section 21 Interviews

2.40 Section 21 permits INDECOM to compel the production of a statement or the

attendance of a person to answer questions. It is an important provision which

can alleviate some of the problems caused by slowness in the members of the

Security Forces explaining what occurred at an incident. This slowness was

criticized by the IACHR in the Michael Gayle case, where it took over a week for

members of the Security Forces to give written statements. Indeed, PPCA files

reveal that on many occasions statements were not forthcoming for months and 19 Page 33, second Item 6.

[25]

sometimes not at all even when the Commissioner of Police was asked to

intervene!

2.41 INDECOM has routinely employed section 21. On the first occasion the police

officers refused to attend INDECOM, after consultation with the Director of

Public Prosecutions, commenced proceedings for breach of the Act. Since then

there has largely been compliance with our notices.

2.42 Two (2) things are of concern:

(a) the law does not permit these statements to be evidence against the maker. Therefore, if the agent of the State said, for example, that he was at a particular scene or armed with a firearm such admissions cannot be used against him in a criminal court (facts which may otherwise be difficult to prove because of the identification and poor record keeping problems mentioned above); and

(b) given the privilege against self-incrimination, a witness

can attend an interview, take oath and refuse to answer many important questions.

2.43 Recommendations on these matters can be found in Part III hereof at paragraphs

3.21 and 3.22.

2.44 Interviews of officers allegedly involved in, or witnesses of, extra judicial killings

often suffer from the reluctance of members of the Security Forces to give

evidence against a colleague.

2.45 Two current practices of the JCF and JDF tend to unwittingly support this “code

of silence”, ease collusion by agents of the State involved in alleged abuse of the

citizen, and hinder exposure of discreditable or culpable conduct.

[26]

2.46 In a recently concluded investigation INDECOM discovered that a unit of the

JCF, whose members were involved in a fatal shooting, appointed a senior officer

to vet all the statements by these members before they were furnished to

INDECOM; a practice that dissuades whistle-blowing. Further, before statements

were written participants were jointly returned to the scene by a senior officer

and the events rehearsed; a practice that risks these members of the Security

Forces tailoring their evidence for mutual consistency.

2.47 It was explained that the practice was well known throughout the Force and

intended to ensure that statements once given are complete. Despite these good

intentions the practice is rife with dangers and must cease.

2.48 The JDF has provided legal counsel for their soldiers. Whilst INDECOM

facilitates witnesses exercising their right to counsel we note, in the JDF’s

arrangements, a potential risk for conflict of interest. The JDF has appointed the

same counsel for all of its soldiers. Thus soldiers who fired their weapons (and

who might therefore be suspects) shared counsel with soldiers who did not fire

(and who might therefore be witnesses). The JDF has put counsel in a position

where he is advising a witness who might give evidence against his other client!

INDECOM has brought the matter to the attention of counsel and the JDF and

trust that they might reconsider the arrangements.

2.49 Recommendations from this special investigation may be found at Chapter 4,

paragraphs 4.1 to 4.9.

[27]

CHAPTER III

[28]

3. PROPOSALS FOR LEGAL REFORM

Powers of a Constable

Required Provision

3.1 It is recommended that the Act explicitly provides for INDECOM investigators to

have all the powers, authorities, privileges and immunities for investigations and

prosecutions within INDECOM's remit, as a constable would enjoy for

investigations and prosecutions within the constable's remit, and in particular:

(a) the power of arrest including the power to arrest with or without a warrant20;

(b) the authority to lay and, by INDECOM's Legal Officers, prosecute a criminal charge21; and

(c) the powers enjoyed by an Inspector of Police in respect of arranging

and conducting an identification parade.

Current Provision

3.2 A constable has greater power to arrest than an ordinary citizen. It is this greater

power that permits a constable to arrest without a warrant based upon reported

information as opposed to actually witnessing the events.

3.3 Section 20 of the Act provides that INDECOM has the like powers of a constable to

give effect to Sections 4, 13 and 14 of the Act. However, it is now argued that

Section 20 is ambiguous and has been made subject to Judicial Review

proceedings. In those proceedings, the claimant asserts that Section 20 grants

20 Sections 13, 15, 16 and 34, Constabulary Force Act. 21 Section 36, Constabulary Force Act.

[29]

powers only during the currency of an investigation and not after. This argument

essentially avers that after INDECOM investigates, some other person or agency

would have to arrest and charge.

3.4 The Justice of the Peace (Jurisdiction) Act provides that any person may cause a

criminal charge to be laid; obtain a warrant to arrest and execute said warrant.

Nevertheless, it is of such fundamental operational importance that the law be

amended to clarify INDECOM’s power to arrest and bring charges.

3.5 Section 20 of the INDECOM Act, in giving INDECOM the power of a constable, is

not rank specific. Currently, Inspectors are clothed with the duty/responsibility to

conduct ID parades. This power is not therefore extended to INDECOM

investigators by Section 20. Currently identification parades are being conducted

by use of videography as an advance over the face to face or one way mirror

methods previously gazetted.

Rationale

3.6 The international standards for investigating alleged abuses by members of the

Security Forces include the authority to bring suspected offenders before the

civilian courts.

3.7 Investigation, arrest, and charge are inexorably linked. During an investigation, a

constable may arrest someone in order to achieve a legitimate aim, for example, to

question him or to better collect evidence from him22. Even the restrictive

interpretation of Section 20 referred to at paragraph 3.3 above would have to

admit that INDECOM currently has this power but, an alternative argument could

be mounted that failure to explicitly so provide means that Parliament did not

22 Holgate-Mohammed v. Duke [1984] A.C. 437, Al-Fayed v. Metropolitan Police Commissioner EWCA Civ. 1579.

[30]

intend such a power. If INDECOM does not have this power, an investigator

would have difficulty collecting samples on a suspected officer’s clothing or

person. It would also mean that a suspected officer would enjoy privileges not

enjoyed by an ordinary suspected citizen.

3.8 The link between investigation and charge may also be evident in the fact that any

person seeking to lay a charge or obtain a warrant or summons must themselves

have a reasonable suspicion and cannot rely on the suspicion of another or a

superior order23.

3.9 If INDECOM has no power to arrest and charge it would mean that a member of

the JCF would always have to review a file investigated by INDECOM, and only if

he agrees with INDECOM’s determination could an arrest and charge be effected.

In this regard, the member of the JCF could not claim to be acting on INDECOM’s

instructions or even those of the DPP. In this event, the effectiveness of

INDECOM’s independent investigations would have to depend on the consent of

a member of the same Force whose member is being investigated. We humbly

submit that this would defeat the purpose of the Act, in that, an impartial and

effective investigation would be illusory.24

3.10 Additionally, it is vital for INDECOM investigators to have control over the

process of identification parades. Citizens, who are alleging that their rights have

been infringed by a member of the Security Forces, would prefer to have limited

contact with the colleagues of those officers. Also, this will emphasize and

highlight the independent nature of INDECOM and the investigation itself.

3.11 We respectfully recommend, that the new procedure as it regards video

23 O’Hara v. Chief Constable [1997] AC 286. 24 Jordan v. UK [2001] EHHR 52, 106.

[31]

identification parades, be gazetted in the same way as the previous face-to-face

and one-way mirror methods.

Constitutional Issues

3.12 It has been argued that if INDECOM has the power to arrest and charge this might

derogate from the powers of the DPP. Under Section 94(3) of the Constitution the

DPP has the power to initiate, undertake, take-over and continue, or discontinue a

prosecution. The power to initiate is not one of the exclusive powers of the DPP.25

Indeed, the vast majority of prosecutions are initiated by the police without the

reference to or the involvement of the DPP.

3.13 Granting, or clarifying the power of arrest for INDECOM investigators would not

conflict with the DPP’s powers but instead, align the investigator’s powers with

those of the constable.

Financial Implications

3.14 The power to prosecute charges brought against a member of the Security Force

may necessitate a slight increase in legal staff

EXAMINATION OF DOCUMENTS

Required Provision

3.15 INDECOM requires explicit authority to immediately have access to, and

examine reports, documents, or other evidence or information regarding

incidents held at facilities, stations or premises occupied by units or formations

of the Security Forces without the requirement of a warrant from a Justice of the

Peace.

25 Section 94(5), Constitution of Jamaica.

[32]

Current Provision

3.16 The Act attempts to deal with this matter at Section 4 but, with the greatest of

respect, there may be confusion between subsections 4(2)(a) and 4(3), in that,

although the former provision speaks to the investigator being entitled to the

aforementioned things, the latter provision seems to require a warrant. Section 4

provides:

“...(2)In the exercise of its functions under subsection (1) the Commission shall be entitled to—

(a) Have access to all reports, documents or other information regarding all incidents and all other evidence relating thereto, including any weapons, photograph and forensic data;

(b)... (c)... (d)... (3) For the purpose of the discharge of its functions under this Act, the Commission shall, subject to the provisions of this Act, be entitled (a) upon the authority of a warrant issued in that behalf by a Justice of the Peace—

(i) to have access to all records, documents or other information relevant to any complaint or other matter being investigated under this Act;

(ii) to have access to any premises or other location where the Commission has reason to believe that there may be

[33]

found any records, documents or other information...

(iii) to enter any premises occupied by any person in order to make such enquiries or to inspect the documents, records, information or property...”

Rationale

3.17 Immediate access to potential evidence is important for an investigation. Previous

cases reveal that there is real risk that records will be tampered with or destroyed

if not secured with alacrity. The fact that these documents are held at the police

station or military facility removes any invasion of privacy claim. Search warrants

are normally required when private property is to be entered.

Constitutional Issues

3.18 As noted above, the power to enter public facilities and search public records

ought not to offend any constitutional rights of the individual.

Financial Implications

3.19 There are no financial implications.

MEMBERS OF THE SECURITY FORCES TO REMAIN FOR EXAMINATION

Required Provision

3.20 Effective investigation requires explicit provision for a member of the Security

Forces involved in an incident to remain at the scene or to otherwise be

immediately available for his clothing or person to be examined.

[34]

Current Provision

3.21 Section 22 of the Act confers upon INDECOM primary responsibility for the

preservation of the scene of an alleged incident. The Commissioner of Police is

required to cause his officers to swiftly attend at the scene for initial preservation

of the scene and members of the Security Forces involved in an incident,

particularly the senior member, are to take the necessary steps to preserve the

scene.

Rationale

3.22 The existing provisions of the Act fail to recognise that important evidence may

equally be obtained from the person of the involved officer as from the scene.

Indeed, the IACHR report on the Michael Gayle killing criticises the failure to

promptly examine the clothing of the suspected officers.

Constitutional Issues

3.23 The privilege against self-incrimination does not ordinarily apply in the taking of

physical samples from a suspect26.

Financial Implications

3.24 There are no financial implications.

26 Archbold 2011, para. 12-2, R v. Apicella 82 Cr. App. R. 295, CA.

[35]

LIMITED ADMISIBILITY OF COMPELLED ANSWERS (S. 21)

Required Provision

3.25 Parliament is asked to make provision in the Act that:

(a) any member of the Security Forces who discharges his/her firearm is called upon to account for such conduct in a manner admissible against him/her in court;

(b) any failure to answer would not in itself be a crime but a breach of discipline possibly permitting dismissal from the relevant Force; and

(c) any failure to answer would be a factor from which a

jury could draw an adverse inference.

3.26 By way of example, a Soldier or Police Officer may be compelled after an incident to answer questions such as:

(a) Did you discharge your firearm at premises situate at

4 Candy Lane, Kingston 13 on the 5th of August 2010

between 10:00 and 11:30 a.m.? If your answer is yes;

(b) State the model and serial number of the firearm and

the amount of rounds fired?

Current Provision

3.27 INDECOM is empowered by Section 21 of the Act to serve a notice to compel the

production of a statement, document or thing.27 INDECOM can also require any

person to attend and answer questions upon oath.28

3.28 A statement furnished by a concerned officer or answers given to questions

obtained compulsorily pursuant to Section 21 is not, as a matter of law,

27 Section 21(1). 28 Section 21(3).

[36]

admissible against that concerned officer at his trial as the common law prohibits

statements that are not voluntarily made from being admitted into evidence.

Thus, an answer given to INDECOM’s request pursuant to Section 21 of the Act

is likely to be ruled inadmissible at the trial of the maker of the statement.

Rationale

3.29 Experience has shown that cases involving members of the Security Forces

present significant difficulties regarding identification. The officer’s uniform, the

fact that he is not normally known to the citizen and various insidious practices

such as poor record keeping and mask wearing can contribute to an atmosphere

of impunity.

Constitutional Issues

3.30 The Privy Council29, the ECHR30 and the Court of Appeal of England and

Wales31 have approved legislation for the admission of a person’s compelled

answers at his trial. In the landmark cases, the statutory arrangement called for

answer to a single question and the penalty for failure to comply with the

requirement to answer was moderate and non-custodial. The departure from the

constitutional principle against self-incrimination was considered proportionate

in order to secure the public interest.

3.31 The case considered Section 172 of the UK’s Road Traffic Act which compelled

the owner of a motor vehicle to name the driver of the vehicle on a particular

occasion. Where the owner by this compulsion named himself as the driver, it

was held that this admission was admissible against him to prove that he was the 29 Procurator Fiscal v. Brown (Brown v. Stott) [2001] 2 All. E.R. 97. 30 31 O’Halloran &. Francis v. UK [2008] 46 EHHR 21; [2007] Crim. L. Rev. 897.

[37]

driver when an offence was committed. This decision and reasoning was

approved by the ECHR. 32 Lord Bingham stated:

I do not for my part consider that section 172, properly applied, does represent a disproportionate response to this serious social problem, nor do I think that reliance on the respondent's admission in the present case, would undermine her right to a fair trial. I reach that conclusion for a number of reasons.

(1) Section 172 provides for the putting of a single, simple question. The answer cannot of itself incriminate the suspect, since it is not without more an offence to drive a car. An admission of driving may, of course, as here, provide proof of a fact necessary to convict, but the section does not sanction prolonged questioning about facts alleged to give rise to criminal offences such as understandably was held to be objectionable in Saunders, and the penalty for declining to answer under the section is moderate and non-custodial. There is in the present case no suggestion of improper coercion or oppression such as might give rise to unreliable admissions and so contribute to a miscarriage of justice, and if there were evidence of such conduct the trial judge would have ample power to exclude evidence of the admission.

(2) While the High Court was entitled to distinguish ... between the giving of an answer under section 172 and the provision of physical samples, and had the authority of the European Court in Saunders ... for doing so, this distinction should not in my opinion be pushed too far. It is true that the respondent's answer whether given orally or in writing would create new evidence which did not exist until she spoke or wrote. In contrast, it may be acknowledged, the percentage of alcohol in her blood was a fact, existing before she blew into the breathalyser machine. But the whole purpose of requiring her to blow into the machine (on pain of a criminal penalty if she refused) was to obtain evidence not available until she did so and the reading so obtained could, in all save exceptional circumstances, be enough to convict a driver of an offence ... it is not easy to see why a requirement to answer a question is objectionable and a requirement to undergo a breath test is not. Yet no criticism is made of the requirement that the respondent undergo a breath test.

(3) All who own or drive motor cars know that by doing so they 32 O’ Halloran and Francis v. UK 2008) 46 EHHR 21, {2007] Crim. L.R. 897.

[38]

subject themselves to a regulatory regime. This regime is imposed not because owning or driving cars is a privilege or indulgence granted by the State but because the possession and use of cars (like, for example, shotguns ...) are recognised to have the potential to cause grave injury. It is true that section 172(2)(b) permits a question to be asked of "any other person" who, if not the owner or driver, might not be said to have impliedly accepted the regulatory regime, but someone who was not the owner or driver would not incriminate himself whatever answer he gave. If, viewing this situation in the round, one asks whether section 172 represents a disproportionate legislative response to the problem of maintaining road safety, whether the balance between the interests of the community at large and the interests of the individual is struck in a manner unduly prejudicial to the individual, whether (in short) the leading of this evidence would infringe a basic human right of the respondent, I would feel bound to give negative answers. If the present argument is a good one it has been available to British citizens since 1966, but no one in this country has to my knowledge, criticised the legislation as unfair at any time up to now."

[Emphasis mine]

3.32 Such statutory curtailment of the right to self incrimination must be achieved by

clear words. Currently police officers and soldiers are required to make an oral

report of any discharge of firearm whilst on duty.33 This report may be said to be

involuntary and would, without more, be inadmissible against said officers and

soldiers.

Financial Implications

3.33 There are no financial implications.

33 Chapter 23, Rule IX (Issue of Firearms) (F)—a a member returning a firearm must report every instance which he has had occasion to remove it from the holster during his tour of duty and whether it has been used or not. Such reports will be dealt with as “Urgent” and submitted to the Divisional Officer…”

[39]

PROCEDURE FOR JUDICIAL REVIEW

Required Provision

3.34 It is proposed that a provision be put in the Act to facilitate:

(a) INDECOM having the option to refer a matter to the Supreme Court where there is a failure to:

(i) provide a report pursuant to Sections 4(4) and 11 of the Act; or

(ii) furnish a statement or answer questions pursuant to Section 21 of the Act; and

(b) a concerned officer, responsible heads or responsible officers seeking review of INDECOM’s orders, notices and requests pursuant to Sections 4, 11 and 21.

Current Provision

3.35 It is clear that the Act envisages Judicial Review as a possible recourse for some

actions of INDECOM as Section 24 requires the Commission to so advise.

INDECOM’s powers under the Act often replicate that of a Commission of

Inquiry and traditionally, there has been a power to refer matters from the

Commission of Inquiry to the Supreme Court34. In Jamaica, Section 2 of Part 53 of

the Civil Procedure Rules, 2002 establishes a clear procedure for referrals to be

made to the Supreme Court by applicants.

Rationale

3.36 Section 21(4) of the Act gives INDECOM the powers of a Supreme Court Judge

in respect of summoning the attendance and examination of witnesses. However,

unlike a Supreme Court Judge, INDECOM has no means except to charge a

concerned officer under Section 33(b)(ii) of the Act for a failure to comply with a

lawful requirement of INDECOM without lawful justification or excuse.

34 Tribunal Enquiries (Evidence) Act, UK.

[40]

3.37 It is submitted that, while charging a concerned officer in terms mentioned in

paragraph 25 above may lead to his conviction, it does not compel him to answer

questions put to him by the Commission. Thus, such a course does not assist

INDECOM in discharging its investigative mandate.

Constitutional Issues

3.38 There are no constitutional issues

Financial Implications

3.39 There are no financial implications.

CORRECTIONS

3.40 The following are a number of incorrect references made to sections or the Act

and for which corrections are required:

(i) Section 27 (1) refers to section 34 (c) but there is no Section 34 (c) in the Act;

(ii) Section 28(2) refers to Section 25 (1) but section 25 is not divided into subsections;

(iii) Section 29(1) refers to Section 31 but Section

29(1) should in fact refer to Section 30(2).

[41]

CORONER’S INQUESTS

Provision Required

3.41 It is recommended that the Act provides for INDECOM to be an interested party

at all Coroner’s Inquests concerning an allegation of death caused by a member

of the Security Forces.

Current Provision

3.42 The Coroner’s Act provides for the Commissioner of Police’s involvement in all

inquests to include the examination of witnesses. The Coroner has the discretion

to permit persons with sufficient proven interest in the proceedings to have

standing at the inquest35.

3.43 The Coroner’s Act also makes mention of the role of the Commissioner of Police to

assign a designated police officer to perform an investigative liaison function as it

regards the death of individuals within the island.

Rationale

3.44 With INDECOM’s statutory role, an inquest may benefit from our involvement

and participation in matters where it is alleged that death resulted from the

actions of agents of the State.

3.45 As it relates to the role of the designated officer, it would be logical if INDECOM

assume the role of the designated police officer for matters within our remit. It

stands to reason that as INDECOM wears the investigative “cap”, we would

undertake the responsibility for performing the functions of the designated officer

for Coroners inquests.

Constitutional Issues

35 Section 22C Coroner’s Act.

[42]

3.46 There are no constitutional issues.

Financial Implications

3.47 There are no financial implications.

[43]

CHAPTER IV

[44]

4. RECOMMENDATIONS FOR ACTION (PURSUANT TO SECTION 23)

Jamaica Defence Force (JDF) Identification Numbers

The Recommendation

4.1 Chief of Defence Staff shall cause an order to be made to all members of the JDF

instructing them to display personal identification numbers (or a combination of

numbers and letters) on their uniforms or gear when engaged in operations in

support of the JCF. Each personal identification number must be so configured

and worn that it may be clearly made out by someone viewing the soldier from

the front or back from a distance of at least ten (10) metres.

4.2 The personal identification numbers shall be assigned before each operation and

the assignment recorded in a permanent form by an officer of Field Rank. Where

the covert nature of the operation so requires, the identification numbers may be

dispensed with but such a course is to be approved by the Chief of Defence Staff

with reasons recorded in a permanent form. This recommendation is to be

complied with within sixty (60) days and INDECOM duly notified.

4.3 INDECOM further recommends that breaches of an order requiring that

personal identification numbers be worn by members of the JDF for the purpose

outlined in paragraph 4.0 above are to be treated as serious disciplinary breaches

warranting punishment of the soldiers involved as well as their supervisors.

Rationale

4.4 INDECOM’s special investigation36 noted the virtual anonymity of the soldier

and how theoretically and practically this contributes to impunity. We sought the

view of the military and civil society; the latter unanimously agreed with the

36 See Paragraphs 2.9 to 2.36 above.

[45]

above recommendation. Our internet poll revealed overwhelming public support

as indicated by Figure 6 below.

Figure 5

4.5 The JDF explained that only for exceptional operations, and with the permission

of the Chief of Defence Staff, is a soldier permitted to wear masks. It was

admitted that there had been instances of soldiers, in breach of rules, wearing

masks. The JDF expressed disagreement with the proposal that soldiers wear

personal identification numbers. The arguments offered by the JDF’s

representatives were that:

(a) It is unknown for an army to be required to wear identification numbers;

(b) A JDF soldier is different from a constable in that

the former cannot act independently; and

(c) JDF soldiers always give statements.

[46]

4.6 There was no suggestion that the wearing of identification numbers would

endanger a soldier or JDF operations. Policing in Jamaica is remarkable for the

degree of military involvement in internal security. Accountability is best

achieved by easing the identification of the individual agent of the state who

comes into contact with the citizen and may use force. In the Jamaican context,

this is as true for the constable as it is for the soldier. The JDF’s argument that

soldiers always give statements is, not germane to the issue of accountability as

such statements are unlikely to be admitted in evidence against the maker. We

note for instance, the finding of the IACHR in the Michael Gayle case where the

soldiers’ actions were unpunished as citizens were not able to identify them and

the soldiers gave belated statements of doubtful credibility.

Identification Numbers (JCF)

The Recommendation

4.7 The Commissioner of Police shall issue an order requiring all JCF personnel

(including gazetted officers), as well as members of the ISCF and Rural Police, to

display their identification numbers on helmets, ballistic vests, and high visibility

vests in addition to the current rules and practices.

4.8 INDECOM further recommends that breaches of an order requiring that personal

identification numbers be worn by members of the JCF for the purpose outlined

in paragraph 4.7 above are to be treated as serious disciplinary breaches

warranting punishment of the constable involved as well as their supervisors.

4.8 Identification numbers are to be of such a size that they can be readily

deciphered at a distance of at least ten (10) metres. This recommendation is to be

complied with within sixty (60) days and INDECOM duly notified.

[47]

Rationale

4.9 The JCF and its auxiliaries require sub-officers or constables to wear

identification numbers at all times whilst in uniform37 or wearing ballistic vests.

Whilst ballistic vests often have these numbers printed on them, a number of

high visibility vests have been reportedly worn without such numbers and

covering the section of the uniform where numbers are traditionally worn. It is

an accepted part of modern policing that police officers should be identifiable by,

among other things, them displaying their numbers in such a manner as may be

easily seen by the citizens.

Minimising the Risk of Collusion

4.10 The Commissioner of Police, Chief of Defence Staff and Commissioner of

Corrections, shall issue an order prohibiting:

(a) the vetting or reviewing of statements to be provided to INDECOM by its members; and (b) any prior discussion between its members allegedly involved in, or witnessing, an incident under INDECOM’s remit with each other before giving a statement to INDECOM.

4.11 The order need not prohibit the making of reports to senior officers or for entries

in Station Diaries, Crime Books and the like.

37 Jamaica Constabulary Force Book of Rules, Appendix 1, Pg. 48.

[48]

CHAPTER V

[49]

5. CORPORATE SERVICES DIVISION

5.0 The Corporate Services Division which is comprised of Human Resources,

Administration (Office Management, Procurement and Registry),

Accounts/Finance and Information Systems, provides support services to the

operating Division of the INDECOM.

Human Resources

5.1 The INDECOM Act 2010 repealed the Police Public Complaints Authority Act,

and made provision for the establishment of the INDECOM effective 2010

August 16. Subsequent to this, the organization structure of INDECOM was

established and approval was given for the operation of posts on a phased basis

effective January 1, 2011.

Recruitment

5.2 Since then, INDECOM has interviewed and has offered employment to twenty

five (25) former employees of the PPCA effective April 1, 2011. An additional 49

employees have also been hired up to June 30, 2011. The staff complement is

currently seventy-four (74) which is 54% of full complement, and is expected to

increase to ninety (90) by the end of the 2011/12 financial year. The Commission

anticipates it will be fully staffed within the next financial year subject to the

availability of resources.

Staff Training

5.3 The Commission is currently identifying training opportunities for its staff in an

effort to enhance their skills as well as their professional and ethical standards.

As such, through the assistance of USAID/COMET, the Investigators have

[50]

undertaken a one (1) month training course which commenced on June 20, 2011

and ended on July 15, 2011.

Office Locations

5.4 The Commission currently operates from three (3) regions, namely: Kingston,

Montego Bay and Mandeville.

KINGSTON (HEADQUARTERS) covers Kingston, St. Andrew, St. Thomas,

Portland, St. Mary, Eastern St. Ann and St. Catherine (Teams Alpha and Bravo)

MOBAY (WESTERN REGIONAL OFFICE) covers the parishes of St. James,

Northern Trelawny, Hanover, Westmoreland, and Western Saint Ann (Team

Delta)

MANDEVILLE (CENTRAL REGIONAL OFFICES) covers Manchester, St.

Elizabeth, Clarendon, Southern Saint Ann and Southern Trelawny (Team

Charlie)

5.5 The Kingston and Montego Bay offices were inherited from PPCA, whereas, the

Mandeville office was opened on the 1st June 2011, and consists of a Director of

Complaints, 1 Senior Investigator and 6 Investigators along with support staff.

5.6 The Montego Bay office under PPCA consisted of 1 Senior Investigator and an

Investigator. Currently, that office consists of a Director of Complaints, 6

Investigators, and 1 Senior Investigator, along with support staff.

5.7 The headquarters houses the Commissioner’s Office, the Corporate Services

Division and the Operations Department. The Commissioner’s office is currently

[51]

staffed with the Commissioner, two (2) Legal Officers, and a Senior Public

Relations Officer. The Corporate Services Division is managed by a Senior

Director of Corporate Services and staffed with a Director of Finance, Human

Resource Director (Acting), Procurement and Inventory Manager, Information

Technology Manager, Office Services Manager, along with support staff.

5.8 The operations department is subdivided into three (3) teams as the Commission

intends to provide 24-hour coverage for the public to make complaints and

facilitate immediate response to incidents. In order to achieve this in an effective

manner, the teams are scheduled to work on a shift system. Each shift consists of

seven (7) Investigators, a Senior Investigator and is managed by a Director of

Complaints.

Office Management/Procurement Department

5.9 The Office Management/Procurement Department ensures that all procurement

activities are executed in accordance with the requisite Government Procurement

Guidelines and Regulations. A number of items were procured for the

Commission since April 1, 2011 which includes computer hardware and

accessories as well as office furniture.

Procurement Procedures

5.10 A Procurement Committee was established in April, 2011 by the Commissioner

and is charged with the task of ensuring full compliance with all applicable

Government Procurement and related procedures and regulations.

]

[52]

Finance & Accounting Department

5.11 The department maintained its core function of providing budgetary, financial

and accounting support in an efficient, compliant and effective manner during 2010.

These functions were started with the PPCA and continued with the INDECOM.

Police Public Complaints Authority (PPCA)

5.12 The PPCA's budgetary submission for 2010/2011 was drafted and forwarded

within the required time frame and in accordance with the Ministry of Finance

and Public Service ceilings.

5.13 The approved budget was $87,271,000 and the PPCA realized its monthly cash

flow requests through subventions from the Ministry of Justice. The PPCA Act

was repealed 2010 August 16, however the monthly subventions continued until

2010 December. This was so because the 1st Supplementary Estimates that

transferred the funds to the new body was tabled in 2010 December.

Audit Inspection

5.14 The Auditor General's audit of PPCA's accounting records and financial

transactions revealed a generally satisfactory state of affairs.

Annual Returns Declaration

5.15 All annual returns for the year 2009 were submitted on 2010 January 22 inclusive

of:

1. National Housing Trust

2. National Insurance

[53]

3. Income and Education Tax

Estimates of Expenditure 2010 - 2011

5.16 The 1st Supplementary Estimates 2010/2011 approved the transfer of

$37,934,000.00 being the balance of PPCA's approved budget as at 2010

December. INDECOM came on stream with its own Head of estimates.

5.17 Both the Cabinet Office and the Ministry of Finance and Public Service were

adamant that the provision (which was inadequate) would not be increased.

Recurrent Warrant Allocation 2011 January – 2011 March

5.18 INDECOM received funding in accordance with Warrants issued during the

period.

Recurrent Warrant Allocation 2011 April – 2011 June

5.19 The approved Budget of $200m with a provision of $128.433m to cover

Compensation and Travelling Allowance has proven to be quite challenging in

defraying the costs of employing 54% of the required staff complement, which

was considered the minimum in achieving INDECOM’s operational deliverables.

5.20 One variable that could not have been accurately forecasted was the financial

impact of assuming the functions of the Bureau of Special Investigations (BSI).

While the INDECOM Act does not state that INDECOM will assume the

functions of the BSI, it is clearly implied and understood that this must take place

[54]

to preserve the independence of INDECOM.

5.21 Consequently, it became critical to employ personnel to man a Scene of Crime

Unit this financial year instead of next year, as was previously planned. This

necessary change requires increased funding in the areas of compensation and

travelling, especially as the team is required to traverse the length and breadth of

Jamaica.

5.22 Additionally, the one-time implementation costs related to additional

administrative overheads; the one-time cost of equipment and technology

required to support additional functions and the ongoing operational costs

associated with the implementation of additional functions, (inclusive of the

attendant costs associated with INDECOM’s new Corporate Headquarters and

Regional Offices and the provision of increased accommodation for staff)

seriously warrants additional funds.

FINMAN Accounting Software

5.23 INDECOM was advised during March 2011, that the Ministry of Finance and

Public Service would be installing the FINMAN Software for full implementation

in the new financial year. This has been achieved; however minor glitches are

still being worked on.

[55]

INFORMATION TECHNOLOGY

5.24 Information technology has become the driving force behind major corporations

and governments across the world, and as such, INDECOM has seen it fit to

embrace this driving force to assist it in carrying out its mandate. As a result,

INDECOM is currently in the process of implementing and upgrading its

Information System infrastructure. This process has been challenging, but

rewarding, and though INDECOM is hindered by financial constraints, it is

striving to operate at its optimum in addressing the needs of the team members

and in by extension, members of the public.

5.25 To assist INDECOM in carrying out its mandate, a Case Management System is

being developed to digitize its operations and to move away from the

cumbersome "paper office" which currently exists. This will allow INDECOM to

operate more efficiently in addressing complaints made to the Commission, and

to be able to respond to queries from various organizations, in a timely manner.

A long-term vision is to have this Case Management System designed to allow

authorized external agencies to have access to predefined data upon request.

5.26 As INDECOM moves forward, it seeks to embrace the advantages of a robust

Information Technology Infrastructure and to allow Information Technology to

drive its operations by providing an efficient, effective and a world class

investigative process.

[56]

Appendices

[57]

RULINGS ISSUED BY THE DIRECTOR OF PUBLIC PROSECUTIONS

(AUGUST 16, 2010-AUGUST 16, 2011)

FILE # COMPLAINANT/

DECEASED

CATEGORY DATE OF REFERRAL

DATE OF DPP’s

RESPONSE

PERIOD TAKEN FOR RULING TO BE ISSUED

DPP’s RULING

179/09 D. M. Assault 28/01/10 1/9/10 7 months Cons. Shaw be charged with A.O.B.H.

334/04 B.M. obo Fitzroy Thompson

Fatal Shooting Mal. Dest. Of Property

14/9/05 31/08/10 4yrs. 4 mths.

No charge

W53/09-

H181/09

U.S. C.U. , Assault

19/11/09 16/09/10 9mths. No charge

123/09 E.C. obo Craig Clarke and N.J. obo Abraham Campbell

Fatal Shooting

6/01/2010

20/09/10 8mths. No charge – Matter to be sent to Coroner

6/06 Mrs. D.C. obo Dwight Clarke

Fatal Shooting

14/01/10 10/11/10 9mths. 27 days

Matter to be sent to Coroner’s Court

H74/07-

W26/07

C.A. Conduct Unbecoming

30/06/09 10/11/2010

1yr. 4mths. Departmental action

H8/10 L.W. Assault 30/06/10 12/11/10 4 mths. A.O.A.B.H. V.H. Assault 15/07/08 04/10/10 2yrs. and 2 Departmental

[58]

W07/08

mths. Enquiry to be held

332/08 K.S. Assault 18/06/09 05/10/10 1yr. 3mths. Matter to be sent to Coroner

10/09 G.W. obo. Marcus Francis (dec’d.) and L.R.

Fatal Shooting and Shooting Injury

20/01/10 30/08/10 7mths. File to be sent to Coroner – St. Catherine

H35/09W12/09

F.M. Assault 23/06/10 5/11/10 4mths. No charge

13/99 W/Cons. T.P.

Assault and attempted Rape

23/04/99 17/09/10 11yrs. and 4mths.

Departmental Action to be taken

H260-W26/09

N.W. Assault 11/01/2010

13/01/11 1yr. 2 dys. Departmental action

210/09 D.M. o.b.o. R.R.

Assault 27/01/10 15/12/10 11mths. Departmental action to be taken

154/09 & 155/09

P. G. obo Devon Thomas and M. H. obo Stacy Ann Halstead

Fatal Shooting

8/04/10 24/05/11 11mths. File to be referred to Coroner for Clarendon

207/09 I.M. T. obo S.M.

Assault 8/02/10 10/11/10 9mths. Departmental action to be taken

74/07 C.A. Discharge of Firearm

25/06/07 10/11/10 9mths. Departmental action to be

[59]

taken 166/09 L.T.

o.b.o. Dane Daley (dec’d.) and T.T.

Fatal Shooting and Shooting Injury

15/02/10 08/02/11 11mths. No charge.

158/09 P.M. obo Oneil Simmonds (dec’d.) and T.T.

Fatal Shooting

1/04/10 8/2/11 11 months No Charge. File to be referred to Coroner.

26/06 PPCA obo Donovan Johnson

Fatal Shooting

29/06/09 13/01/11 1 yr. 7 mths.

No charge. File to be referred to Coroner.

359/09 P. C. Assault 3/5/10 9/5/11 1yr To be charged

with

A.O.A.B.H.

H83/09 B. S. Assault 22/01/10 6/4/11 1yr. 3mths. Departmental action to be taken

253/09 L. W. Assault

14/04/10 29/04/11 1yr. Departmental action to be taken

128/08 A.M. obo Damion Adamson

Fatal/ Shooting Injury

26/01/11 16/02/11 2 wks. Departmental action to be taken

203/10 R. M. Assault 22/02/11 21/03/11 1mth No charge.

H3/09- D. H. Assault 30/07/09 4/4/11 1yr. 8mths Departmental Charges

[60]

W2/09

106/05 M. O. B. obo Dwight Stephens

Fatal Shooting

23/0306 23/03/06 12/4/11 Matter to be referred to Coroner

H4/10 D. W. C.U./Abuse

of Power

22/02/11 21/03/11 1mth. Departmental

Enquiry

H203/0

6 –

W74/0

6

R. T.

obo

Robert

Thorpe

Assault 21/11/06 2/3/11 4yrs. 3mths Matter to be

submitted to

Coroner for

Westmoreland

H85/09-W30/09

P. H. Assault 4/12/09 9/2/11 1yr. 2mths. Departmental action to be taken

224/09A

R. .J. obo Martin McKenley

Assault

28/07/10

11/08/11

10 mths.

Coroner for St. James [appears that ruling erroneously made as Coroner for St. James does not appear to be the appropriate referral. (Returned to DPP by letter dated 11/5/11.)]

158/09 P. M. o.b.o. Oneil Simmon

Fatal Shooting

1/4/10 29/04/11 1yr. Matter to be referred to Coroner for Corporate

[61]

ds (dec’d.)

area.

322/08 S. S. obo. Michael Samuels

Fatal Shooting

30/07/09 3/5/11 1yr. 9mths. Matter to be referred to Coroner Corporate area.

H83/09-W28/09

S. W. obo Donovan Jackson

Fatal Shooting

29/12/09 18/04/11 1yr. 3mths. Matter to be referred to Coroner’s Court for the Parish of Westmoreland.

10/06 P.P.C.A. obo Damion Powell (dec’d.)

Fatal Shooting

17/06/10

4/5/11

11 months

file to be referred to Coroner for Corporate area.

319/09 R. W. obo Aaron Abdulla

Fatal Shooting

27/01/10 13/04/11 1yr. 2mths. No charge. Matter to be referred to Coroner for Corporate area.

H327/10-W73/10

J.H. o.b.o. Fredrick Hill

Fatal Shooting

23/12/10 15/3/2011

3 months Officer to be charged for Murder

238/10 INDECOM

Breach of s. 33(b)(ii),

INDECOM Act

23/09/10 15/12/10 3 months Officers to be Charged for breach of INDECOM Act

26/08 D.H. o.b.o. Samuel Rattray

Fatal Shooting

31/10/09 29/07/11 1 yr. 9 mths.

No Charge

H15/09-W6/09

C.B. Assault 30/07/09 25/07/11 2 yrs. No Charge

W03/10

J.B. Misappropriation

29/07/10 26/07/11 1 yr. No Charge

[62]

228/08 N.S. Assault 22/04/09 12/08/11 2yrs. 4 mths.

Departmental action to be taken against Spl/Sgt. L.B. and Spl/Cons. L.P.; Spl/Cons. D. H. to be charged with assault.

W14/10

M.S. Assault 21/04/10 12/08/11 1 year 4 months

File returned for further investigation

63/08 W.F. o.b.o. Erinle Fisher

(deceased)

Fatal Shooting

02/01/09 03/06/09 5 months No Charge

126/07 R.H. Assault 19/05/08 27/4/09 11 months Departmental enquiry to be conducted.

79/07 E.W. Assault 25/02/2007

22/04/09 2 years Departmental action to be taken.

175.08 C.W. Assault 19/01/09 2/10/09 9 months Departmental enquiry to be conducted.

125/07 M.S. Shooting injury

06/06/08 14/09/09 1 year & 3mths

Departmental enquiry to be held.

[63]

CASES AWAITING RULING OF THE DIRECTOR OF PUBLIC PROSECUTIONS

(AS AT AUGUST 8th, 2011)

REFERENCE # COMPLAINT DATE REFERRED TO DPP

224/07 Assault of H.W. by Spl. Cons. O. P.

4/1/2008

H197/07-W87/07 Assault of D.W. by Cons. O. R.

10/1/2009

H331/07-W142/07 Shooting Injury of J. G. by Spl. Cons. S.R. and

Spl. Cons. C. D.

06/06/2008

226/07 Shooting Injury of A-M. T. by Det. Cpl. D.D.

et al

04/06/2008

245/07 Assault of M. W. by Cpl. D. McK

26/03/2010

H11/08-W4/08 A.C. o.b.o. Derval Campbell, Fatal

Shooting by Det. Cpl. G. Edwards

30/06/2008

253/07 PPCA o.b.o. Wayne Hibbert & Saroya Ellis, Shooting Injury by Det. Cpl. Fairclough, Cons. C. Brown and Cons. G.

Wright

08/08/2008

H45/08- W15/08 Retinella Barrett o.b.o. Samuel Barrett, Fatal

Shooting by Sgt. Cato, Cons. A.

13/08/2008

[64]

292/07 PPCA o.b.o. Dwight Picton et al, Fatal

Shooting and Shooting Injury by Supt. D.H. et

al

15/08/2008

H70/08-W22/08 C.P. o.b.o. Theodore Whittingham, Fatal

Shooting by Cons. V, Reid

19/08/2008

H205/08-W62/08 D.D. o.b.o. Errol Wilson, Fatal Shooting of Cons. M. W., and Cons. D. Campbell

20/11/2008

84/08 Assault of S.W.by Cons. N. McK.

28/11/2008

200/08 Illegal Entry and Assault of M.Mc by

Cons. Cargill and Cons. Creary

27/11/2008

334/07 H.B. o.b.o. Ian “Rusty” Cameron, fatal

shooting Unidentified

17/02/2009

H242/08-W75/08 Assault of G. T. by Cpl. Gibbs, Det. Cons. P. J.

et al

9/03/2009

252/08 J.S. o.b.o. Nicholas Miller and Christopher Walker, Fatal Shooting and Shooting Injury by Cp. D. L. and Cpl. J. W.

30/04/2009

H261/08-W84/08 Assault of L.D by Cons. D.G.

30/04/2009

[65]

H360/08-W118/08 V.W. o.b.o. Sandrae Williams, Fatal

Shooting by Cons. J. J.

30/04/2009

H302/08-W105/08 Assault of H.W by Cons. O. Lindo

28/04/2009

H320/08-W109/08 P.P. o.b.o. Howard Gunn, Fatal Shooting

by W/Cpl. V. B., Cons. M. C., Cons. I. F., and

Cons. K. W.

13/05/2009

H359/08-W117/08 Assault and Harassment of C.G. by

Cons. O. S.

11/05/2009

247/08 Assault of N.S. by L.A. B.

06/05/2009

297/06 Assault and Conduct Unbecoming of D.P. by

Cpl. A.F.

28/05/2009

319/07 Assault of D.V. by Unidentified

28/05/2009

351/08 Assault of B.G. by Cpl. L.B.

19/05/2009

299/08 S.F. o.b.o. Omar Marshall, Fatal

Shooting by Cons. C.C. S. and Cons. G.N.D.

02/06/2009

277/08 K.W. o.b.o. Jevhanie Robinson,Fatal

Shooting by Unidentified

19/06/2009

[66]

H49/09-W18/09 Assault of R.S.by Cons. D.C. and Cons.

Donaldson

31/07/2009

H3/09-W2/09 Assault of D. H. by Det/Cpl. G.E.,

Falmouth

04/08/2009

H41/09-W16/09 V.S. o.b.o. Rayfield Hemley, fatal shooting

by Cpl. G. Fletcher, and Cons. D. Harrow

14/08/2009

275/08 Garth Davis 11/08/2009

H57/09-W20/09 N.C. o.b.o. Donovan Clayton, fatal shooting

by Sgt. B.W., Cons. W.G. and D/C R.P.

28/08/2009

79/09 Assault and Conduct Unbecoming of U.B. by

Cons. C. R.

01/09/2009

89/09 Assault of G.H. by Cons. D.Q., Cons. N.V.

and Cons. R.H.

09/09/2009

141/09 AME o.b.o. Andre Beswick, Fatal Shooting

by G.B. and A.B.

20/09/2009

337/08 Assault of B.A. by W/Sgt. B.M-R

14/09/2009

[67]

H121/09-W37/09 Assault of A.W. by Cons. R.M.

14/09/2009

135/09 Assault and Non-Action of R.R. by Cons.

D.T. and Cons. J.W.

18/09/2009

H67/09-W26/09 Assualt of V.R. by D/C W.C.

16/10/2009

26/09 M.H. o.b.o. Gregory Sullivan, Fatal Shooting by Det. Sgt. M. Brooks,

Cons. C. Brown and Cons. K. Adams.

16/10/2009

[68]

TOTAL COMPLAINTS BY PARISH- 2010

PARISH

NUMBER OF COMPLAINTS

Kingston & St. Andrew 144

St. Catherine 55

St. James 44

St. Ann 9

Westmoreland 18

Clarendon 26

St. Mary 8

St. Thomas 11

Hanover 14

Trelawny 8

[69]

Portland 7

Manchester 24

St. Elizabeth 9

TOTAL

377

[70]

CATEGORIZATION OF CONCERNED OFFICER

BY RANK

(2010)

PARTICULARS TOTAL

Assistant Superintendent and Above 25

Inspector and Sergeant 49

Corporal and Below 287

Special Constables 37

District Constables 16

Unidentified 45

Complaints against a station 46

TOTAL

505

[71]

DISPOSAL OF COMPLAINTS

(2010)

MANNER OF DISPOSAL

TOTAL

Referred to DPP for ruling 13

Charged 1

Referred to the Commissioner of Police for action

5

Unsubstantiated complaint 33

Withdrawal 8

Referred to Inspectorate Branch 3

Referred to the Superintendent of Police 2

Referred to the Public Defender’s Office 2

Complaints already investigated 1

TOTAL

68

[72]

CATEGORIZATION OF COMPLAINTS (2010)

ALLEGATION/OFFENCE TOTAL

Assault 158

Conduct Unbecoming 123

Non-Action 19

Harassment 12

Threat 38

Fatal Shooting 53

Shooting Injury 14

Abuse of Power 15

Discharge of Firearm 1

Other 75

Total

508

[73]

TOTAL COMPLAINTS BY PARISH- 2011

PARISH NUMBER OF COMPLAINTS

Kingston & St. Andrew 122

St. Catherine 45

St. James 27

St. Ann 5

Westmoreland 12

Clarendon 25

St. Mary 10

St. Thomas 11

Hanover 13

Trelawny 1

[74]

Portland 10

Manchester 26

St. Elizabeth 5

TOTAL

304

[75]

DISPOSAL OF COMPLAINTS (August 16, 2010- July 31, 2011

MANNER OF DISPOSAL

TOTAL

Referred to DPP for ruling 68

Referred to the Commissioner of Police for action

4

Unsubstantiated complaint 1

Withdrawn 5

Referred to Inspectorate Branch 4

Referred to the Superintendent of Police 2

Referred to Anti Corruption 2

Complainant failed to cooperate 1

Awaiting trial or Coroner’s Court 14

No charge 11

[76]

Charged 12

Complaints already investigated 1

TOTAL

121

[77]

CATEGORIZATION OF COMPLAINTS

January 1, 2011- July 31, 2011

ALLEGATION/OFFENCE TOTAL

Assault 84

Conduct Unbecoming/unprofessional conduct 28

Neglect of duty 17

Harassment 12

Threat 16

Fatal Shooting 53

Shooting Injury 17

Other fatalities 4

Abuse of Office 17

Arson 1

Discharge of Firearm 2

Breach of I.C.I. Act 8

Corruption 1

Destruction of property 11

Illegal Entry 2

Illegal search 2

Misappropriation of Property 2

Perversion of the course of Justice 9

Rape 1

Removal from Witness Protection 1

[78]

Seizure of Property 4

Sexual Harassment 1

Unlawful detention 7

Unlawful wounding 1

Wrongful arrest 4

Total

304

[79]