Police promotions and human rights

In its decision in Jamaicans for Justice (Appellant) v Police Service Commission and Another (Respondents) (Jamaica) [2019] UKPC 12, the Judicial Committee of the Privy Council held that there is a common law duty on a body taking a decision on the promotion of a senior police officer to ensure that allegations of criminality against the officer in question are fully and independently investigate

At first sight, internal police promotions to senior ranks might not seem to be a topic likely to generate public concern. In practice it can and does generate acute suspicions of nepotism and political influence. This has been particularly acute at times in Ireland, with its national police force. Public concern can also be spiked by cases in which police officers are promoted after having been associated with instances of serious corruption or abuse. There have been several examples of this in high profile cases in these islands over many decades. Inevitably, victims of the corruption or abuse are dismayed by what they perceive as a failure of the system to render the officers involved accountable. Dismay turns to anger when they subsequently discover that the same officers are promoted. Typically, they interpret this as the police officers being rewarded for their corruption or abuse, and the police and political establishments protecting and taking sides with their own corrupt officers.

All of this raises the question whether it is possible to mount a judicial challenge against decisions to promote officers while there are still unanswered questions over complaints about their alleged involvement in incidents or operations that have led to serious injury or loss of life in controversial circumstances. This issue was addressed a few weeks ago in Jamaicans for Justice (Appellant) v Police Service Commission and Another (Respondents) (Jamaica) [2019] UKPC 12, a decision of the Judicial Committee of the Privy Council in respect of a challenge to the promotion of a senior officer in the Jamaican Constabulary.

Appointments to, and promotions in, the Jamaican Constabulary come under the remit of the Police Service Commission (PSC). The latter is an independent body which can be equated broadly for these purposes with Police and Crime Commissioners in England and Wales, the Policing Authority in Ireland, the Policing Board in Northern Ireland and the Scottish Police Authority. It was established to insulate the Jamaican police against political influence. The PSC considers each application for promotion to the senior ranks in the Constabulary and makes a recommendation to the Governor General who makes the formal appointment.

In Jamaicans for Justice, the Chief of Constabulary nominated a superintendent for promotion to the rank of senior superintendent, largely because he had a reputation for success in tackling the criminal gangs responsible for a high level of homicides in his police area which was considered to be the “murder capital of Jamaica”. The country as a whole has been suffering from a very high level of homicides. In dealing with that situation, the constabulary have acquired a reputation for summary killings almost with immunity. Complaints against the police in respect of fatal shootings rarely result in prosecutions against the officers involved.

In 2010, INDECOM was established as an independent body to investigate actions of the police which resulted in death or injury or the abuse of the rights of persons. It is similar in many respects to the Independent Office of Police Complaints in England and Wales, and the Irish Garda Síochána Ombudsman Commission. The Act establishing INDECOM was intended to reverse:

“.. the longstanding status quo of ineffective investigations into questionable shootings and allegations of excesses by agents of the state, and to address certain controversial societal concerns. It was meant to represent a paradigm shift from what went before.”

The indications are that it is not proving effective. Of the 20 senior officers reported by INDECOM to the PSC between 2013 and 2017 for disciplinary breaches, none were subject to disciplinary charges. In fact, INDECOM received no response in any of the cases, apart from one where it was asked to conduct further investigation. Having done that, it received no further response.

The superintendent’s police unit had a particularly notorious reputation in responding to the violence. When the superintendent was being considered for promotion, the appellant, a non-governmental, non-partisan, human rights organisation, informed the PSC that he had been the subject of multiple complaints of unprofessional conduct which included the circumstances surrounding ten fatal shootings. A Report from the UN Special Rapporteur on Torture, Inhuman and Degrading Treatment or Punishment complained of very obstructive, uncooperative and openly threatening conduct by the superintendent and his officers to the Special Rapporteur and his team when they visited his police station. They urged that disciplinary action should be taken against him. Accordingly, the promotion decision raised a sharp conflict between the importance of cracking down hard on violent crime and being seen to respect human rights standards.

Before making a decision on the promotion, the PSC requested a report on the fatal shootings from the Constabulary’s special investigations unit (BSI). The report revealed that the superintendent had been involved in 37 incidents. In five of these, there was a verdict of justifiable homicide. In the remainder, the investigation was incomplete, or a decision was awaited from the DPP or a case was pending before the Coroner’s Court.  The PSC also invited the appellant to forward any further information they might have on the superintendent. They forwarded a list of 28 complaints that they had received, but these did not correlate with the list compiled by the BSI. Later the DPP decided against prosecution in any of the remaining cases identified by the BSI. The PSC proceeded to recommend the promotion.

The appellant sought judicial review of the PSC’s decision. In particular, they sought an order of certiorari to quash the decision, and an order of mandamus to compel the PSC to conduct an effective, thorough and impartial investigation into the 28 allegations of misconduct and to reconsider its decision. On appeal, their application shifted from an order to conduct an effective, thorough and impartial investigation to causing such an investigation to be undertaken by INDECOM. It should also be noted that the superintendent retired after promotion so the question of quashing the decision and asking the PSC to reconsider was academic. Nevertheless, the Judicial Committee went on to consider whether there is a duty to conduct further inquiries before making a promotion decision in a case such as this.

The Jamaican regulations on promotion are quite detailed on the matters that the PSC should take into account. They empower it, among other things, to call for a report from INDECOM into allegations against an officer being considered for promotion. The question for the purposes of the appeal was whether the PSC was under any duty at common law or under the Jamaican Constitution to make such an inquiry, or any other inquiry, in order to properly inform itself before making a decision.

The Jamaican Constitution contains a binding charter of fundamental rights which is substantially similar to the ECHR and the personal and due process rights in the Irish Constitution. The Judicial Committee of the Privy Council (the Board) was satisfied that the charter required the PSC (and INDECOM and other organs of state) to “exercise its functions in a manner which is compatible with the fundamental rights of all persons, including the right to life, the right to equality before the law and the right to due process of law.” Moreover, the right to equality before the law “affords every person protection against irrationality, unreasonableness, fundamental unfairness or the arbitrary exercise of power.” The Board went on to hold that there are also “fundamental common law principles governing the exercise of public functions.”

The Board acknowledged that there was no express statutory duty on the PSC to make further inquiries before making its decision. The real question, however, was whether the PSC was under a duty to make such inquiries in the proper discharge of its statutory functions with respect to the promotion. Critically, the Board held that, in the circumstances, the PSC was under such a duty at common law. There was grave concern that some members of the Constabulary were overly inclined to take the law into their own hands in dealing with violent crime, thus risking violations of the right to life, to due process of the law and to equality before the law of the people involved. The superintendent was involved, as team leader, in a large number of fatal incidents. No independent investigation of those incidents had taken place. The PSC had the power to ask INDECOM to investigate them, and it would be irrational for INDECOM not to respond. Such an investigation might reveal a different picture from the very summary table of incidents with which the PSC had been provided by the BSI. It would serve to put in context the statements of the Police Commissioner (and the superintendent himself) on the superintendent’s effectiveness in fighting crime. The final decision would still be that of the PSC, but there was a reasonable prospect that a properly informed PSC might have made a different decision. In these circumstances, it would be a breach of the PSC’s duty not to request an independent investigation from INDECOM.

Obviously, the circumstances pertaining to the promotion at issue in this case were highly unusual from a UK or Irish perspective. Nevertheless, the underlying principle has wider significance for police promotion decisions where the officer concerned has been the subject of serious criminal allegations which have not been resolved by an independent inquiry. In such cases, the body taking the promotion decision (or decision to recommend promotion) may well be under a common law duty to request the relevant independent complaints body to investigate the allegations (at least where the decision-maker is competent to make such a request). This would appear to be applicable to the police oversight bodies (and police chiefs) throughout the UK and Ireland. Where the duty applies, any person or body with sufficient standing in the matter should be able to challenge a failure to discharge it by way of a judicial review.

Download the May 2019 edition of Criminal Justice Notes