Commissioner of the Independent Commission of Investigations v Police Federation and Others
| Jurisdiction | UK Non-devolved |
| Judge | Lord Lloyd-Jones |
| Judgment Date | 04 May 2020 |
| Neutral Citation | [2020] UKPC 11 |
| Court | Privy Council |
| Docket Number | Privy Council Appeals No 0098 of 2019 and 0099 of 2019 |
| Date | 04 May 2020 |
[2020] UKPC 11
Lord Kerr
Lord Hodge
Lord Lloyd-Jones
Lord Briggs
Lord Kitchin
Privy Council Appeals No 0098 of 2019 and 0099 of 2019
Privy Council
Easter Term
From the Court of Appeal of Jamaica
Appellant (INDECOM)
Edward Fitzgerald QC
Richard Small
Krystle Blackwood
(Instructed by Simons Muirhead & Burton LLP)
Appellant (Dave Lewin)
Terrence F Williams
Yanique Taylor Wellington
(Instructed by Simons Muirhead & Burton LLP)
Respondents
Phillippa Kaufmann QC
Thalia Maragh
Althea Grant
(Instructed by Sheridans)
Heard on 3 and 4 February 2020
There are two appeals before the Board both of which raise important issues as to the interpretation and effect of the Independent Commission of Investigations Act 2010 (“the 2010 Act”). This statute came into operation on 16 August 2010, repealing the Police Public Complaints Act and establishing the Independent Commission of Investigations (“the Commission”) to undertake investigations concerning actions by members of the Security Forces and other agents of the State that result in death or injury to persons or the abuse of rights of persons. The first appeal (“the Indecom appeal”) concerns the question whether the Commission has the power under the 2010 Act, other statutory provision or at common law to initiate a prosecution for an offence which has been the subject of investigation by the Commission (“an incident offence”). It also concerns the powers of the Commissioner and the investigative staff of the Commission to initiate a prosecution and restrictions or limitations on prosecutions initiated by the Commissioner or the investigative staff in the exercise of any common law right as private citizens and in their respective private capacities. The second appeal (“the Lewin appeal”) concerns the question whether Mr Dave Lewin, one of the Commission's Directors of Complaints, had the power to initiate a prosecution for breaches of section 33 of the 2010 Act. It also concerns the question whether the respondent, Mr Albert Diah, had a lawful justification or excuse for obstructing or failing to comply with a request by a Commission investigator and its relevance to the respondent's conviction for breaches of section 33 on 31 October 2014.
The long title of the 2010 Act is “An Act to repeal the Police Public Complaints Act; to make provision for the establishment of a Commission of Parliament to be known as the Independent Commission of Investigations to undertake investigations concerning actions by members of the Security Forces and other agents of the State that result in death or injury to persons or the abuse of the rights of persons; and for connected matters”.
Section 3(1) constitutes a Commission of Parliament to be known as the Independent Commission of Investigations. Section 3(2) provides that the Commission shall consist of a Commissioner. The functions of the Commission, which are defined in section 2 of the 2010 Act as including its powers and duties, are set out in section 4 which provides:
“4(1) Subject to the provisions of this Act, the functions of the Commission shall be to —
(a) conduct investigations, for the purposes of this Act;
(b) carry out in furtherance of an investigation and as the Commission considers necessary or desirable —
(i) inspection of a relevant public body or relevant Force, including records, weapons and buildings;
(ii) periodic reviews of the disciplinary procedures applicable to the Security Forces and the specified officials;
(c) take such steps as are necessary to ensure that the responsible heads and responsible officers submit to the Commission reports of incidents and complaints concerning the conduct of members of the Security Forces and specified officials.
(2) In the exercise of its functions under subsection (1) the Commission shall be entitled to —
(a) have access to all reports, documents or other information regarding all incidents and all other evidence relating thereto, including any weapons, photographs and forensic data;
(b) require the Security Forces and specified officials to furnish information relating to any matter specified in the request; or
(c) make such recommendations as it considers necessary or desirable for —
(i) the review and reform of any relevant laws and procedures;
(ii) the protection of complainants against reprisal, discrimination and intimidation; or
(iii) ensuring that the system of making complaints is accessible to members of the public, the Security Forces and specified officials;
(d) take charge of and preserve the scene of any incident.
(3) For the purpose of the discharge of its functions under this Act, the Commission shall, subject to the provisions of this Act, be entitled —
(a) upon the authority of a warrant issued in that behalf by a Justice of the Peace —
(i) to have access to all records, documents or other information relevant to any complaint or other matter being investigated under this Act;
(ii) to have access to any premises or other location where the Commission has reason to believe that there may be found any records, documents or other information referred to in sub-paragraph (i) or any property which is relevant to an investigation under this Act; and
(iii) to enter any premises occupied by any person in order to make such enquiries or to inspect the documents, records, information or property as the Commission considers relevant to any matter being investigated under this Act; and
(b) to retain any records, documents or other property if, and for so long as, its retention is reasonably necessary for the purposes of this Act.
(4) For the purposes of subsection (3), the Commission shall have power to require any person to furnish in the manner and at such times as may be specified by the Commission, information which, in the opinion of the Commission, is relevant to any matter being investigated under this Act.”
“Incident” is defined in section 2 as follows:
“‘incident’ means any occurrence that involves misconduct of a member of the Security Forces or of a specified official —
(a) resulting in the death of, or injury to, any person or that was intended or likely to result in the death of, or injury to, any person;
(b) involving sexual assault;
(c) involving assault or battery;
(d) resulting in damage to property or the taking of money or other property;
(e) although not falling within paragraphs (a) to (d), is, in the opinion of the Commission, an abuse of the rights of a citizen.”
Section 5(1) provides that subject to the provisions of the Constitution of Jamaica, in the exercise of the powers conferred upon it, the Commission shall not be subject to the direction or control of any other person or authority.
Part III of the Act deals with complaints. A complaint may be made to the Commission by a person who alleges that the conduct of a member of the Security Forces or any specified official resulted, inter alia, in the death of or injury to any person or was intended or likely to result in such death or injury (section 10(1)). On receipt of a complaint, the Director of Complaints is required to cause an investigation into the complaint to be made forthwith and, if in the opinion of the Commission the conduct complained of constitutes an offence, forward a copy of the complaint to the Director of Public Prosecutions (“DPP”) forthwith (section 10(3)). The responsible head of a relevant Force or the responsible officer of a relevant public body, having been made aware of an incident, is required to make a report to the Commission of the incident forthwith where the incident involves conduct that resulted in the death of or injury to the person, and within 24 hours in any other case (section 11(1)). Where the Commission is satisfied that an incident is of such an exceptional nature that it is likely to have a significant impact on public confidence in the security forces or a public body, the Commission must require the relevant Force or the relevant public body to make a report of that incident to the Commission, in the form and containing such particulars as the Commission may specify (section 12).
Section 13 provides that an investigation under the Act may be undertaken by the Commission on its own initiative. Section 14 provides:
“14(1) The Commission shall, for the purpose of deciding the most appropriate method of investigation, make an assessment of —
(a) the seriousness of the case;
(b) the importance of the investigations;
(c) public interest considerations;
(d) the particular circumstances in which the incident occurred.
(2) The Commission may manage, supervise, direct and control an investigation carried out by the Security Forces or the relevant public body in relation to an incident, where, in the opinion of the Commission, it is necessary to direct and oversee that investigation.
(3) Where the Commission takes action under subsection (2), it shall notify the responsible head or the responsible officer, as the case may be, and direct that no action shall be taken until the Commission has completed its investigation.”
Sections 15 and 16 deal respectively with informal resolution of complaints and mediation or other alternative dispute resolution proceedings. Section 17 deals with the formal handling of complaints. Where a complaint is not resolved in accordance with sections 15 or 16, the Commission shall cause an investigation to be made forthwith into the complaint, unless satisfied that the complaint may be justly and adequately resolved otherwise than by an investigation (sections 17(1) and 17(2)). During...
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