Introduction
In Commissioner of the Independent Commission of Investigations v Police Federation and Others (Jamaica) [2020] UKPC 11, the Judicial Committee of the Privy Council considered whether the independent police complaints body in Jamaica had the capacity to initiate prosecutions in respect of cases which they had investigated. Given the similarities between the Jamaican body and the independent police complaints procedures in the UK and Ireland, the decision has some relevance for our understanding of the latter. It also sheds light on the legal status of the Commission, and the concept of the private prosecutor at common law.
The facts
Frederick Mikey Hill was shot dead during a police operation. The killing was investigated by the Independent Commission of Investigations (see below). In the course of the investigation, Commission investigators interviewed Corporal Reid. Subsequently, instead of waiting for the Director of Public Prosecutions (DPP) to make a decision on whether to prosecute Corporal Reid, they proceeded to arrest and charge him with murder. The key question in the case was whether the Commission investigators had the power to do that. The Act establishing the Commission did not confer an express power on it or its officers to prosecute for an offence that they had investigated. The investigators in this case claimed that they had been acting in their capacity as private citizens when they arrested and charged Corporal Reid.
Corporal Reid sought a judicial review of the decision to prosecute him; arguing that the Commission and its officers had exceeded their powers. He lost at first instance where the Jamaican Supreme Court held that the Commission and its officers had the power to arrest under both the common law and the Act. While they did not have the power to charge under the Act, the Court held that they could do so at common law. There was no legal requirement to wait for a decision by the DPP who, in any event, could always take over the prosecution or discontinue it.
The core issues for the Judicial Committee of the Privy Council, therefore, revolved around whether and, if so, to what extent, the Commission (and/or its officers) had the power to prosecute. Answering that question would require close examination of the legal status and powers of the Commission and its officers.
Background to the Commission
Jamaica has long experienced a very high rate of fatal police shootings in controversial circumstances. In Gayle v Jamaica (Report No.92/05, 24 October 2005), the Inter-American Commission on Human Rights noted that:
“.. despite the high incidents (sic) of killings involving the security forces in Jamaica, these incidents rarely result in the prosecution or conviction of the officers involved. This, in turn, has led to the perception in Jamaica that the police are above the law and has adversely affected the relationship of trust that should exist between a population and the forces responsible for protecting them.”
In that case, Jamaica was found to be in breach of the American Convention on Human Rights partly because of the manner in which the State had handled the wrongful death of Mr Gayle at the hands of the security forces. Echoing the position of the European Court of Human Rights on such matters, the Inter-American Commission considered that the killing should have been conducted from the outset by a body independent from the Jamaica Constabulary Force and the Jamaica Defence Force. That body would need to have the authority to investigate fully and effectively the role of these Forces in Mr Gayle’s wrongful death in a manner that would result in the criminal prosecution and punishment of those responsible.
The police complaints body at the time of Mr Gayle’s death, the Police Public Complaints Authority (PPCA), did not seem to have jurisdiction to investigate the conduct of members of the Jamaica Defence Force, and there was no information to suggest that it had become involved in the investigation into the killing. Accordingly, the Inter-American Commission recommended that Jamaica adopt such legislative or other measures as may be necessary to undertake a thorough and impartial investigation into the killing with a view to identifying, prosecuting and punishing all those responsible for the human rights violations perpetrated against Mr Gayle. This resulted in the enactment of the Independent Commission of Investigations Act 2010 which replaced the PPCA with the Independent Commission of Investigations (ICI).
The ICI
The ICI consists of a Commissioner who must have the qualifications to hold office as a judge of the Supreme Court of Jamaica. Its primary function is to conduct independent investigations concerning actions by members of the security forces (including the police), and other agents of the State that result in death, injury to persons or abuse of rights of persons. The ICI can decide the most appropriate form of investigation depending on the seriousness of the incident or matter in question. It can manage, supervise, direct and control an investigation by the Security Forces, and it has its own staff to conduct an investigation independently of them.
The ICI Commissioner and its investigators have all the powers, authorities and privileges of a constable. The establishing legislation expressly states that they can take charge of and preserve the scene relevant to a complaint. They can access all documents, information, items (including firearms) etc relevant to an investigation, and they can access any premises where they may be found. They have powers to obtain evidence and to secure the attendance and examination of witnesses, and they require persons (including members of the security forces) to furnish information. The legislation makes it a summary offence to obstruct, give false statements to or fail to comply with the ICI in the discharge of its functions. In short, the Commissioner and staff can function very much like a police force investigating a crime.
Following an investigation, the ICI forms its own opinion on the matter in question and submits a report to the DPP, among others. Significantly, for the purposes of the instant case, the establishing legislation does not give it an express power to prosecute, or to initiate the prosecution, of any person for an offence arising from the subject matter of the investigation (eg. murder, manslaughter, wounding etc). It is established essentially as an investigative body. It is very similar (but not identical) in its powers and functions to the several independent police complaints bodies in the UK and Ireland.
Power to prosecute
Consideration of whether the ICI has the power to prosecute must begin with its legal status. Does it have the status of a legal person, separate and distinct from its sole member (the Commissioner) and its investigative staff. The Judicial Committee of the Privy Council acknowledged that the Act does not establish it as a corporation (legal person), but does confer it with many of the characteristics of a corporation. So, for example, it has a perpetual existence in that it can employ staff whose contracts of employment carry on beyond the term of the individual Commissioner who hired them. Similarly, decisions taken, or investigations commenced, during the term of office of one Commissioner are valid, or continue automatically, under his or her successor.
The Judicial Committee concluded that the ICI is analogous to a statutory corporation sole. A statutory corporation, however, only has those powers conferred on it directly or indirectly by statute. The legislation clearly does not confer the ICI expressly with the power to prosecute. This omission cannot be circumvented by relying on the fact that the ICI consists of a sole person, namely the Commissioner, who could rely on his or her status as a natural person to prosecute on behalf of the ICI. As explained by the Judicial Committee, the public law powers of natural persons holding a statutory office are confined to those conferred upon them by statute. The Act, of course, did not confer a power to prosecute expressly on the Commissioner.
The question then was whether the Act indirectly confers the ICI with the power to prosecute. The ICI argued that the power to prosecute is necessary for, or reasonably incidental to or consequential upon the performance of its investigative functions. In other words, it would be hampered in an investigation if it was not able, where appropriate, to follow through with the arrest and charge of a police officer whom it was investigating for an offence.
The Judicial Committee was not persuaded by this argument. It acknowledged that in some regulatory schemes, the regulatory body in question has the power to prosecute for an offence that it investigates. That, however, tends to be confined to offences created by the regulatory scheme itself. There is no general principle that the investigative and prosecutorial functions should go hand and hand in that manner. Nor is it sufficient that the ICI may be in a particularly advantageous position to prosecute an offence which it has investigated. The Act clearly confines it to an investigative role, with any consequent prosecution to be taken by the DPP.
It is a different matter when the offence or offences in question relate to the conduct (as distinct from the subject) of an ICI investigation. As noted above, the Act creates a number of summary offences related to obstructing an ICI investigation. The Judicial Committe accepted that the power to prosecute these is incidental to discharge of the ICI’s investigative role. They are aimed at enhancing the ICI’s capacity to investigate an offence. As such it is important that it can enforce them directly through prosecution.
Private prosecutions
It was argued that the ICI’s lack of an express power to prosecute the offences it investigates could be circumvented by the Commissioner and/or the investigators initiating a private prosecution. There are two possibilities here. The first is based on the fact that the Act confers them with the powers, authorities and privileges of a constable. A constable has the power at common law to arrest and charge a person with an offence. It was argued, therefore, that the Commissioner and/or investigators can use this power to initiate a prosecution against a police officer etc whom it has investigated. The Judicial Committee, however, rejected that argument on the basis that the Act confers them with the powers etc of a constable solely in respect of their investigative functions. Since the initiation of a prosecution only arises when the investigation is complete, their constable powers do not extend that far.
The second possibility is that the Commissioner and/or investigators can fall back on their status as natural persons, who have the power at common law to initiate a private prosecution in respect of an offence that they have investigated. The Judicial Committee accepted the validity of this argument in theory. However, it went on to say that the Act makes such a prosecution a practical impossibility. The Act expressly requires them to keep confidential any documentation etc disclosed to them in the course of an investigation. There are a few express exceptions (such as the prosecution of obstruction etc), but the prosecution of the main offence investigated is not one of the exceptions. It follows that the Commissioner and investigators would not be able to give evidence in respect of the documents etc that had been disclosed to them. This, in turn, would render a prosecution impracticable.
Conclusion
Superficially, this seems to be a case in which the Commission and its officers erred in their impatience to mount a prosecution for murder. Instead of waiting for the DPP to take a decision on prosecution, they purported to exercise powers they did not have in order to ensure that prosecution proceedings would be initiated, and Corporal Reid would be transferred in custody to the Resident Magistrate. At a deeper level, it raises some rarely addressed issues associated with the establishment of a police-like body to investigate criminal complaints against police officers independently of the police.
Previously, such complaints would be investigated by the police in common with similar complaints or suspicions against any other person. The police, however, have evolved as an integral part of the criminal justice process. Typically, in common law jurisdictions, they can arrest and charge a suspect, and bring him or her before a judge to be remanded in custody or bail. In the absence of statutory provision to the contrary, they can even prosecute minor offences on behalf of the State. In more serious cases, they tend to work closely, and in confidence with, the DPP.
It is easy to understand why the handling of criminal complaints against police officers should be transferred out of the hands of the police and given to a body independent of the police. It is quite another matter, however, to ensure that that body can function as the equivalent of the police in other criminal matters. Certainly, its officers can be given the investigative power and authority of a police officer within its limited remit. Equally, provision can be made for it to submit an investigation file to the DPP for a decision on prosecution. Nevertheless, that still falls short of replicating the special position of the police in the criminal process, even with respect to criminal complaints within the body’s jurisdiction. Despite appearances, it is an awkward add on that has not been (and probably cannot be) integrated into the criminal process in the manner of the police.
None of this may matter much in practice in the UK and Ireland where the independent police complaints body can be assured that the police and the DPP will deal with their investigation reports professionally, with integrity and in accordance with law. That confidence may not always be there in every jurisdiction. It is quite possible, for example, that the ICI in Jamaica feared that the police would frustrate their intention that criminal proceedings should be initiated against Corporal Reid. Perhaps, their actions in overstepping their powers was an attempt to ensure that the criminal process would be initiated and that he would be placed in the custody of the court.
Support for that interpretation can be found in another case concerning the ICI, and decided by the Judicial Committee in conjunction with the case above. It also concerned a fatal shooting during a police operation. The ICI investigators called to the relevant police station to take possession of the weapons deployed during the operation with a view to having them tested. The officer in charge of the fatal shooting operation intervened to take the weapons back and had them tested himself. He was subsequently convicted of obstructing the ICI investigation in a prosecution brought by the ICI itself.
The conviction was subsequently overturned by the Jamaica Court of Appeal on the basis of a defence of superior orders and mistake of fact or law. The Judicial Committee held that it erred in doing so. Nevertheless, it is easy to see how the ICI might harbour doubts about its ability to rely on the police to take the necessary actions to ensure that police officers are made amenable to justice on foot of its recommendations.