The Independent Commission of Investigations (INDECOM) has lost its appeal to the Privy Council in its bid to initiate criminal prosecutions.

However, the London-based court has ruled that INDECOM has the power to bring action where its investigations are being obstructed without lawful justification.

In its ruling handed down today, the Judicial Committee of the London-based Privy Council said INDECOM does not have the power to arrest, charge or prosecute.

"There is nothing in the 2010 Act to suggest that it was intended that the Commission should perform any function in relation to the prosecution of incident offences," the panel of judges said in a judgment.

It described incident offences as those matters which form the basis of INDECOM investigations.

Writing on behalf of the court, Lord Lloyd-Jones, ruled that INDECOM is an investigative body and that it would have been “surprising” if Parliament intended it to prosecute without making any provision in the law to support that.

According to the judgment, prosecution is the function of the Director of Public Prosecutions.

However, it was not all defeat for INDECOM, as the Privy Council also ruled that INDECOM has the power to bring action under Section 33 of its governing law where its investigations are being obstructed without lawful justification. 

The court said it makes sense in such instances since INDECOM is primarily an investigative body.

"It is not disputed that a prosecution in respect of an offence under Section 33 is capable of aiding the Commission in the discharge of its investigative functions and that the Commission therefore has an implied power, consistent with the express terms of the 2010 Act, to bring a prosecution for a Section 33 offence,” Lord Lloyd-Jones wrote.

Meanwhile, the Privy Council says the 2018 case against Deputy Superintendent Albert Diah should be restored in the Jamaican Court of Appeal for sentencing.

Six years ago, the Appeal Court had quashed the conviction of Diah.

He was arrested by INDECOM investigators for obstructing investigators following allegations that on August 29, 2013, police personnel from the St Catherine South Division fatally shot a woman in Windsor Heights, Central Village.

Personnel from INDECOM reportedly went to the Central Village Police Station to secure the weapons involved.

However, Deputy Superintendent Diah took the weapons and refused to hand them over.

In 2014, Diah was convicted and fined $800, 000.

However, in 2018, he was freed by the Appeal Court. 

How INDECOM could prosecute

The Privy Council has agreed with the Court of Appeal that an INDECOM staff may initiate prosecution in a private capacity, as a citizen, but it said the legislation has made this a “practical impossibility”.

According to the law lords, the INDECOM Act requires that all information that the agency deals with be treated confidentially and breaching this is a criminal offence.

Exemptions, the UK-based court said, do not cover private prosecution and the INDECOM Commissioner or employees “would be committing a criminal offence if they were to try to use any evidence gained in the course of the investigation in support of a private prosecution”.

The case originated from a 2012 challenge brought by the Police Federation in the Supreme Court where the union challenged INDECOM’s power of arrest.

The court ruled in favour of INDECOM.

The Federation challenged the decision in the Court of Appeal which, in 2018, overturned Supreme Court’s judgment.

INDECOM then took the matter to the Privy Council.

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