Five-year INDECOM Act inertia - Williams, Golding still want prosecutorial powers for commission; DPP, Chuck, cops not sold on idea

Almost five years ago, lawmakers on a bipartisan committee of Parliament agreed unanimously to amend the law to give the Independent Commission of Investigations (INDECOM) the power to arrest and prosecute cops.

That proposed amendment, which was expected to settle the legal debate about whether INDECOM had such power, was among a slew of proposed changes outlined in an October 2015 report by a joint select committee which reviewed the INDECOM Act.

But since then, the 22-page report continues to gather dust, with no timetable when the proposed amendments will go forward.

INDECOM was established in 2010 to probe alleged misconduct by members of the security forces and other agents of the State.

Last week, the United Kingdom-based Privy Council affirmed a decision by the Jamaican Appeal Court that the INDECOM Act does not confer any express powers on the agency, its commissioner or staff to prosecute incident offences such as murder.

Current Justice Minister Delroy Chuck had served on the joint select committee as a member of the then parliamentary Opposition. He signed the report agreeing to give INDECOM the authority to arrest and prosecute cops.

Tabled But Not Debated

Now four years into his tenure, Chuck blames the delay on the just-concluded Privy Council case. He said the report was tabled in Parliament, but not debated.

“The main issue before the court was the very matter on which Parliament was being asked to decide,” he reasoned. “The decision of the court would certainly have some effect on the amendments.”

Mark Golding, former justice minister in the last People’s National Party administration, who also chaired the joint select committee, could not recall where the process of amending the INDECOM Act had reached when the reins of state power changed hands after the 2016 election.

Golding noted, however, that between October 2015 when the report was completed and the February 2016 polls, there was no time to take the proposed amendments through all the legislative stages.

“But it was our intention to proceed with them quickly as we dealt with all legislation when we were the government,” he said.

Throughout the delay, INDECOM tried to nudge lawmakers into action, head of the oversight body, Terrence Williams, disclosed.

“During these five years, we repeatedly wrote to ministers of justice and asked that the act be amended and [we had] written and reminded [them] countless times. Why it didn’t happen, I can’t answer,” Williams said.

He said it left INDECOM in the position “where it’s either we championed ahead and do the work that the people wanted for police accountability or we say, ‘Boy, we can’t work unless the act is amended’.”

Attorney Tana’ania Small Davis believes the five years that have elapsed provided sufficient time for the legislature to debate the proposed amendments.

“There have been so many cases in court brought to explore the full extent of INDECOM’s power and authority and it was needlessly done, incurring lots of legal expenses on both sides when the committee’s report ought to have been debated and steps taken to fill whatever gaps that existed,” said Small Davis, who has represented the oversight body in a number of cases.

Red Flags

While making it clear that it was important for INDECOM to “survive and thrive”, Paula Llewellyn, the nation’s top prosecutor, raised a number of red flags about giving an investigative body the authority to prosecute its own cases.

“Whether the investigator knows it or not, on a psychological level, especially if they are not that experienced, they have a vested interest in recording another notch to their belt, so the judgement may be clouded,” said Llewellyn, the director of public prosecutions.

“It would be injurious to the public interest and to INDECOM itself.”

Chairman of the Police Federation Sergeant Patrae Rowe described it as “dangerous” to allow INDECOM to prosecute cops.

“Any investigator who investigate a case will be invested in the result … and there will be no guarantee of protection for the police officer,” he argued.

While insisting that Parliament must decide the fate of the proposed amendments, Chuck appears to be shifting his position on whether INDECOM should be given the authority to arrest and prosecute cops.

“To clarify INDECOM’s entitlement to prosecute, your committee accepts the recommendation that a new subsection 4(1)(d) and (e) should be inserted as follows: (d) institute and undertake criminal proceedings which appear to the commissioner, on reasonable grounds, to relate to an incident or an offence under this act,” read a section of the report.

The justice minister explained that when he embraced the proposal as a member of the Opposition, his view was that cases investigated by INDECOM needed to be dealt with expeditiously and that the Office of the Director of Public Prosecutions (ODPP) was overburdened and “could not respond in a timely manner”.

But he said since taking over the justice portfolio in February 2016, a total of 16 prosecutors have been added to the ODPP, pushing the total to 58.

“The issue to consider now is whether the ODPP is presently working closely with INDECOM to have matters, where investigations are completed, dealt with in a timely manner,” he said.

“My position is not important. It is for Parliament to decide.”

Golding, too, indicated that he was in favour of granting INDECOM the power to prosecute members of the Jamaica Constabulary Force because the record had shown that the ODPP was “not providing the kind of responsiveness” that were warranted “in a situation where we were coming from a culture that allegations of extrajudicial killings was a problem in Jamaica”.

“The records of prosecution of police officers who had been implicated as having wrongfully used force resulting in death, … that record was not indicative of an effective response of accountability. The decision of the joint select committee, including me, was that there should be a statutory power to prosecute,” the former justice minister said.

Llewellyn bristled at the suggestion, pointing to the number of cases prosecuted by her office involving cops.

For Williams, the long wait for a legal opinion or ruling, caused by the volume of cases handled by the DPP’s office, is among the reasons INDECOM should be allowed to prosecute its own cases.

“We are two years into an MOU with the DPP’s office since the Court of Appeal decision [in 2018 that it does not have the right to prosecute cops] and there are rulings that are 18 months outstanding and the agreement was that we would get them in 30 days,” he asserted.

Yanique Gardener Brown, acting deputy director of public prosecutions, and Natallie Malcolm, assistant director of public prosecution, disputed that assertion.

According to the two senior prosecutors, case files from INDECOM, like the Major Organised Crime and Anti-Corruption Agency and the Financial Investigations Division, are treated as priority, even though they “can be a little complex”.

“Because it involves police officers, their liberty and advancement in the force, those matters are treated with a level of urgency by this office,” said Gardener Brown.

livern.barrett@gleanerjm.com