Jamaicans for Justice v Police Service Commission and another
| Jurisdiction | UK Non-devolved |
| Judge | Lady Hale |
| Judgment Date | 25 March 2019 |
| Neutral Citation | [2019] UKPC 12 |
| Court | Privy Council |
| Docket Number | Privy Council Appeal No 2017 of 0078 |
| Date | 25 March 2019 |
[2019] UKPC 12
Lady Hale
Lord Kerr
Lady Black
Lord Lloyd-Jones
Lord Briggs
Privy Council Appeal No 2017 of 0078
From The Court of Appeal of Jamaica
Administrative law - Discharge of statutory functions — Extent to which Police Service Commission could inform itself about officers recommended for promotion who had been involved in fatal accidents.
Appellant
Hugh Southey QC Philip Dayle (Instructed by Simons Muirhead & Burton LLP)
Respondent
Marlene Malahoo Forte QC Althea Jarrett (Instructed by Charles Russell Speechlys LLP)
The Jamaica Constabulary Force (JCF) has to contend with some formidable problems. There are, as the Attorney-General reminded us several times, elements in Jamaican society who think nothing of taking life in furtherance of their own criminal ends. The police force must do all it can, within the law, to safeguard the public from crime and bring the criminals to justice. On the other hand, the Inter-American Commission on Human Rights, in the case of Michael Gayle v Jamaica, Report No 92/05, 24 October 2005 took into account, at para 88,
“information indicating that impunity for killings by the police remains a serious problem in Jamaica. As the Petitioners noted in their petition and subsequent submissions, a pattern has been identified in Jamaica whereby a disproportionately large number of killings are associated with the State's security forces, but where very few prosecutions have been undertaken in relation to those killings”.
The issue in this case is what steps the Police Service Commission (PSC), which is charged with deciding upon the appointment and promotion of police officers, should take to inform itself about officers recommended for promotion who have been involved in fatal incidents before making its decisions. In particular, is there a duty to ensure that allegations of extra-judicial killings against such an officer are fully and independently investigated before accepting a recommendation that he be promoted?
The issue arises in the context of the promotion of a particular officer, Superintendent Hewitt, to the rank of Senior Superintendent. In July 2009, the appellant, a non-governmental, non-partisan human rights organisation, wrote to the PSC saying that it had received 13 complaints of unprofessional conduct against Superintendent Hewitt, including ten complaints of fatal shootings by officers under his command. It had complained to the Commissioner of Police but received no response. After consulting the Commissioner, the PSC replied in September that the Commissioner
“has always brought reports of complaints made against Superintendent Hewitt to his attention, and has counselled and warned him accordingly. He has also given the assurance that all reports of wrongdoing by Mr Hewitt or any other member of the Force will be thoroughly investigated and that the appropriate action will be taken, as deemed necessary”.
The appellant found this “grossly inadequate” and asked what investigations there had been. The PSC asked the Commissioner to review the complaints with a view to making a more comprehensive report to the appellant. In January 2010, the acting Commissioner sent to the PSC a one page report into allegations of misconduct against Superintendent Hewitt which had been prepared by the JCF's Bureau of Special Investigations (BSI). Among other things, this said that:
“It is a fact that some of the shootings arising from operations that he has led are questionable, however there is no evidence that he has been directly involved or conspired with the officers involved in these shootings”.
However, it went on to say that the Superintendent had the unenviable responsibility of managing two of the most volatile areas in the Island, requiring firm and decisive leadership in order to meet the challenges they posed.
The PSC did not send this report to the appellant. The appellant wrote again in July and again in November 2010. The November letter referred to the recent Report of the UN Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. This complained of the very obstructive, unco-operative and openly threatening conduct of Superintendent Hewitt and his officers when they had visited his police station in February and urged that disciplinary action be taken against him. The appellant's letter was forwarded to the Commissioner.
Days later, the Commissioner wrote to the PSC advising it that there were 24 vacancies in the rank of Senior Superintendent and including Superintendent Hewitt in the list of those he recommended for promotion. His letter said this about Superintendent Hewitt:
“Mr Delroy Hewitt, Superintendent is a hard working dedicated officer who leads from the front. He has commanded several challenging divisions and has succeeded in reducing crime. St Andrew South his current command which was viewed as the murder capital of Jamaica and since taking over, major crimes having been trending down. The figures show that major crimes are down by 19% and murder down by 33% or seventy one (71). The Human Rights lobby groups are recommending that he be removed from front line duties, however he is fearless and prepared to tackle the criminal elements in the society. The Jamaica Constabulary Force needs his experience to help in managing crime and violence. He is recommended for promotion to the rank of Senior Superintendent.”
In December, the PSC requested and received a fatal incident report from the BSI relating to fatal shootings in which the listed Superintendents and deputy Superintendents had been involved. The report consisted of a table giving brief particulars, in the case of Superintendent Hewitt, of no less than 37 incidents. In five of these there had been verdicts of justifiable homicide, but in the rest the investigation was incomplete, or a ruling was awaited from the Director of Public Prosecutions (DPP), or the case was pending before the Coroner's Court. In only two of these had the Superintendent been the actual shooter as well as the team leader and in both cases the verdict had been justifiable homicide.
The PSC interviewed Superintendent Hewitt on 11 January 2011. It appears that an hour was set aside for this interview, whereas only half an hour was set aside for the other officers interviewed. According to the PSC chairman, Superintendent Hewitt made a favourable impression. It formed the view that he was “a fearless and effective police officer who was placed repeatedly in policing divisions accounting for the highest incidents of crime, particularly murders”. The Commissioner had informed the PSC that “the incidents of crime were reduced in the divisions over which he had command”. The next day the PSC decided to appoint him to act as a Senior Superintendent for three months, during which time it would request further information. The table was expanded slightly in response to its questions. The PSC also met the Commissioner to discuss the concerns raised.
Meanwhile, the appellant wrote to express its concern at the lack of any response to the allegations and at reports in the media of the possible promotion of Superintendent Hewitt. The PSC replied that it had discussed the appellant's concerns with the Superintendent and with the Commissioner and was satisfied that it had enough information to make a decision. But it also asked the appellant to supply any factual information it might have about the complaints it had received. The appellant sent a list of 28 complaints against the Superintendent and officers under his command (a list which does not appear to correlate with the list compiled by the BSI).
In April, the DPP reported that all outstanding matters relating to officers including Superintendent Hewitt had been reviewed and no recommendations were made for any of them to be criminally or departmentally charged. On 15 April 2011, the PSC recommended to the Governor General that Superintendent Hewitt be appointed a Senior Superintendent and on 18 April advised the appellant of the appointment.
While all this was going on, the Jamaican Parliament passed the Independent Commission of Investigations Act 2010. This set up a Commission, known as INDECOM, independent of the JCF and security services, “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”. A complaint may be made to INDECOM by “[any] person who alleges that the conduct of a member of the security forces [which include the JCF] … resulted in the death of or injury to any person or was intended or likely to result in such a death or injury” (s 10(1)(a)). INDECOM may also investigate on its own initiative (s 13). It is for INDECOM to decide how best to handle the matter, but unless a complaint is resolved through informal mechanisms, it will result in a report that is copied to, among others, the DPP and, if the incident involves a member of the JCF, the PSC (s 17(1),(2),(9),(10)). The JCF has a duty to comply with its recommendations (s 23), but the PSC does not.
The Act was controversial. The background is explained by the Full Court of the Supreme Court in Gerville Williams v Commissioner of the Independent Commission of Investigations [2012] JMFC Full 1, a case in which several police officers challenged, unsuccessfully, the constitutionality of INDECOM's investigatory powers. F Williams J explained that the Act
“seeks to upend a long-standing 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...
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