KINGSTON, March 18, 2018 - After years of confusion regarding whether the INDECOM Act gives the investigative body the power to arrest, charge and prosecute members of the Jamaica Constabulary Force, the Appeal Court in a100-page judgement on Friday, ruled that the INDECOM Act is not empowered by section 20 of the Act, statute or common law, to arrest, charge of prosecute any person for an offence.
The Appeal Court further ruled that section 20 of the Act does not empower the Commissioner of INDECOM or the investigative team to arrest, charge or prosecute any person for a criminal offence.
However, INDECOM has latched onto a section of the ruling which states that the Act does not abrogate the common law right possessed by INDECOM Commissioner Terrence Williams and members of his staff to bring charges and prosecute in a private capacity.
Commissioner Terrence Williams, who spoke with Emily Shields on RJR's Hotline programme on Friday afternoon, claimed victory in the ruling handed down by the Appeal Court.
"This is a very resounding victory because the issue of needing the DPP's permission to have a lawyer conduct prosecutions is an issue which was vexed for a long time and the court has now clarified that; and the other issues the Court of Appeal has, in the main, affirmed the decision of the Full Court, but what the court is saying is that the INDECOM Act does not confer these powers, the powers were already there at common law, and it goes on to say INDECOM as a body does not have these authorities, they must be exercised by the individuals in INDECOM," he declared.
He said this does not change the way the agency has always operated because charges have never been laid on any member of the Police Force by 'INDECOM' but by the individual investigator pursuing the case.
Chairman of the Police Federation Sergeant Cecil McCalla in his interpretation of the ruling, said: "From what I heard and from what I read so far, even though I am not a lawyer, it's clear to me that the Appeal Court is saying that INDECOM should not arrest or prosecute."
"We are extremely, extremely happy because we have been maybe the only voice out there in the wilderness since 2010 as it relates to this matter, and today the court is saying that the Police Federation was right," declared Sergeant McCalla.
He added that INDECOM is clutching at straws regarding the common law statute.
"Under common law status, just about any citizen or anybody can do that, so it would not be anything special as it relates to powers given to INDECOM," he stressed.
Senior attorney Jacqueline Samuels Brown, who represented the Police Federation, said Friday's judgment will be used as a guide in future interactions between INDECOM and members of the Police Force.
She said what is clear about the judgement is that "contrary to what has been put forward by INDECOM, the statute really gives INDECOM wide powers of investigation, but powers limited to investigation." Therefore, the agency is limited to investigate and make references or recommendations to other bodies, including the Director of Public Prosecutions.
Members of the Force have been battling INDECOM in court over whether it had the legal right to charge them.
Arising from the Court of Appeal decision in relation to the powers of the Independent Commission of Investigations, the Office of the Director of Public Prosecutions (DPP) has scheduled a meeting for Monday with its staff. There are also plans to engage INDECOM about the matter.
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