Hilary Term
[2019] UKPC 12
Privy Council Appeal
No 2017 of 0078
JUDGMENT
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Jamaicans
for Justice (Appellant) v Police Service Commission and another
(Respondents) (Jamaica)
From the Court of Appeal of Jamaica
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before
Lady Hale
Lord Kerr
Lady Black
Lord Lloyd-Jones
Lord Briggs
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JUDGMENT GIVEN ON
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25 March 2019
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Heard on 30 January 2019
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Appellant
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Respondent
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Hugh Southey QC
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Marlene Malahoo
Forte QC
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Philip Dayle
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Althea Jarrett
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(Instructed by Simons
Muirhead & Burton LLP)
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(Instructed by Charles
Russell Speechlys LLP)
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Lady hale:
1.
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”.
2.
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 facts
3.
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”.
4.
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.
5.
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.
6.
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.”
7.
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.
8.
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.
9.
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).
10.
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.
INDECOM
11.
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.
12.
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 meant to represent a paradigm shift
from what obtained before.” (para 329)
13.
We were told that INDECOM is now “automatically on the scene” if a
police officer is implicated in a killing. However, it is of some concern that INDECOM
reported in 2017 that no disciplinary proceedings have been instituted against
any of the 20 senior officers reported by INDECOM to the PSC and the
Commissioner of Police for disciplinary breaches. The earliest case was
submitted in 2013 and was the only one to which they had received a response;
this was, in 2015, to the effect that, despite a full INDECOM investigation,
the PSC had asked the JCF to conduct a further investigation; since then
nothing more had been heard (The INDECOM Quarterly, 2017, 4th,
p 41).
These Proceedings
14.
In June 2011, the appellant, having obtained leave, filed a claim for
judicial review of the decision to recommend Superintendent Hewitt for
promotion. It sought an order for certiorari to quash the recommendation and
orders of mandamus directing the PSC to conduct an effective, thorough and
impartial investigation into the 28 allegations of misconduct made by their
complaints and to reconsider its decision. These claims failed both at first
instance before B Morrison J ([2012] JMSC Civ 153) and on appeal before
Morrison, Phillips and McIntosh JJA ([2015] JMCA Civ 12). On the appeal, the
focus had shifted from requiring the PSC itself to conduct an investigation to
requiring it to cause such an investigation to be undertaken, in particular by INDECOM.
15.
Morrison JA, giving the leading judgment in the Court of Appeal, said
this, at para 137:
“I have not found this to be an
easy case. For, on the one hand, I cannot doubt for a moment the critical
importance of the fundamental rights and freedoms guaranteed to all persons in
Jamaica by the Constitution, the supreme law of the land, as well as the
central role of the courts as the guardians of the Constitution. Nor, on the
other hand, do I minimise in any way the critical importance of the PSC, as an
independent body established by the Constitution, in ensuring that the JCF is
staffed and led by men and women qualified for the positions which they are
expected to occupy and regardful of those fundamental rights and freedoms.”
16.
He had earlier concluded that regulations 9 and 15(2)(k) gave the PSC
the power to ask others, including INDECOM, to make further inquiries, but that
it was a matter for the PSC whether or not to do so. He concluded that there
was no obligation on the PSC to commission an independent, impartial and
thorough investigation of the sort contended for by the appellant. Rather, the
question was “whether, in the light of the provisions of the [Police Service
Regulations] and the material that was available to it for the purpose, the PSC
gave proper consideration to the Commissioner’s recommendation for SP Hewitt’s
promotion” (para 134) and, in his view, it had done so.
The legislative framework
17.
The PSC is established under section 129(1) of the Constitution of
Jamaica. Under section 130, read with section 125, the power to make
appointments to the JCF, and to remove and to exercise disciplinary control
over officers is exercised by the Governor General on the advice of the PSC.
This power is expressly “Subject to the provisions of this Constitution”. The purpose
of setting up the PSC, along with the other public service commissions provided
for in the Constitution, is to insulate the JCF (and other public office
holders) from political influence (Thomas v Attorney General of Trinidad and
Tobago [1982] AC 113, at 124).
18.
The PSC is regulated by the Police Service Regulations 1961. Regulation
13(a) provides that the PSC shall make recommendations to the Governor General
with respect to appointments and promotions of members of the JCF. Regulation
15(1) requires the PSC to take into account in respect of each member of the
JCF not only “his seniority, experience and educational qualifications but also
his merit, ability and good conduct”. Regulation 15(2) provides that:
“In the performance of its
functions under paragraph (1), the Commission shall take into account as
respects each member –
(a)
his general fitness
(b)
his seniority
(c)
his basic educational qualifications and any special qualifications;
(d)
any special course of training that he may have undergone (whether at
the expense of Government or otherwise);
(e)
markings and comments made in confidential reports by any officer under
whom the member concerned worked during his service;
(f)
any letters of commendation in respect of any special work done by the
member;
(g)
the duties of which he has had knowledge and experience;
(h)
the duties of the post for which he is a candidate;
(i)
any specific recommendation of the Commissioner for filling the
particular posts;
(j)
any previous employment of his in the public service or the Force or
otherwise;
(k)
any special reports for which the Commission may call.”
19.
In addition, regulation 9 allows the PSC, in considering any matter or
question, to “consult with any such public officer or other person as the
Commission may consider proper and desirable and may require any public officer
to attend and give evidence before it and to produce any official documents
relating to such matter or question”. Under regulation 10, it is a breach of
discipline for a public officer to fail to appear or to produce documents without
reasonable cause.
20.
It is now common ground that the PSC does have the power to call for a
report from INDECOM into allegations against any police officer whose promotion
or discipline it is considering. The issue is whether there is any duty, either
at common law or under the Constitution, to make that or any other inquiry in
order properly to inform itself before making a decision.
The Constitution of Jamaica
21.
Chapter III of the Constitution contains the Charter of Fundamental
Rights and Freedoms, substituted for the previous guarantees of fundamental
rights by the Charter of Fundamental Rights and Freedoms (Constitutional
Amendment) Act 2011. It opens with section 13, the material parts of which read
as follows:
“(1) Whereas –
(a) the state has an obligation
to promote universal respect for, and observance of, human rights and freedoms;
(b) all persons in Jamaica are
entitled to preserve for themselves and future generations the fundamental
rights and freedoms to which they are entitled by virtue of their inherent
dignity as persons and as citizens of a free and democratic society; and
(c) all persons are under a
responsibility to respect and uphold the rights of others recognized in this
Chapter,
the following provisions of this
Chapter shall have effect for the purpose of affording protection to the rights
and freedoms of persons as set out in those provisions, to the extent that
those rights and freedoms do not prejudice the rights and freedoms of others.
(2) … save only as may be
demonstrably justified in a free and democratic society _-
(a) this Chapter guarantees the
rights and freedoms set out in subsections (3) and (6) of this section and in sections
14, 15, 16 and 17; and
(b) Parliament shall pass no law
and no organ of the State shall take any action which abrogates, abridges or
infringes those rights.
(3) The rights and freedoms
referred to in subsection (2) are as follows
(a) the right to life, liberty
and security of the person and the right not to be deprived thereof except in
the execution of the sentence of a court in respect of a criminal offence of
which the person has been convicted; …
(g) the right to equality before
the law; …
(r) the right to due process as
provided in section 16; …
(4) This Chapter applies to all
law and binds the legislature, the executive and all public authorities. ...
(6) No person shall be subjected
to torture or inhuman or degrading punishment or other treatment. …”
Section 16 is headed “Protection of Right to Due Process”
and makes detailed provision for civil and criminal cases along similar lines
to article 6 of the European Convention on Human Rights.
22.
The Caribbean Court of Justice, in Nervais v R [2018] 4 LRC 545,
when construing section 11 of the Constitution of Barbados, which also begins
with the word “whereas”, held that this did not mean that the section was
merely “aspirational [or] a preliminary statement of reasons which make the
passage of the Constitution, or sections of it, desirable” (para 25). It was
intended to have the force of law. The court went on to say, of the right to
the protection of the law, that it “affords every person . . . adequate
safeguards against irrationality, unreasonableness, fundamental unfairness or
arbitrary exercise of power” (para 45). This is an echo of the words of the Caribbean
Court of Justice in Maya Leaders Alliance v Attorney General of Belize [2015]
CCJ 15 (AJ), para 47, in turn citing Attorney General v Joseph and Boyce [2006]
CCJ 3 (AJ), (2006) 69 WIR 104, 226, para 20.
Discussion
23.
It is clear to this Board that the PSC, like the JCF and INDECOM and
other organs of the State, must 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,
guaranteed by section 13(2) and (3)(a), (g) and (r). As Morrison JA put it, at
para 89,
“…given that all organs of the
State are specifically enjoined by the Constitution to take no action which
‘abrogates, abridges or infringes those rights’, it must surely be equally
uncontroversial to insist that all such organs are bound to respect and seek to
protect the fundamental rights and freedoms guaranteed by the Constitution in
all aspects of their activities.”
24.
The Board is also disposed to accept that the right to equality before
the law, like the right to the equal protection of the law, affords every
person protection against irrationality, unreasonableness, fundamental
unfairness or the arbitrary exercise of power. These are, in any event, fundamental
common law principles governing the exercise of public functions. As there is
nothing in the statutory framework governing the PSC to contradict them, they
are applicable in this case irrespective of whether or not they have the status
of a constitutional right.
25.
The question, therefore, is whether either or both of those principles
required the PSC to make further inquiries into the complaints it had received
against Superintendent Hewitt before recommending him to the Governor General
for promotion to the rank of Senior Superintendent. Mr Hewitt has now retired,
and so the question of quashing the decision and requiring the PSC to
reconsider it is now academic. The appellant nevertheless challenges the
conclusion of the Court of Appeal that there is no duty to call for further
investigations in a case such as this.
26.
The Attorney General is correct to say that the shape of the case has
changed somewhat over the years since these proceedings were begun. In 2011,
the appellant was seeking an order of mandamus compelling the PSC to carry out
its own inquiries into those allegations. It was argued that regulations 9 and
15(2)(k) imposed a duty, and not just a power, to make such inquiries. This was
successfully resisted on the ground that the PSC was not set up with the staff
or resources to enable it to do this. At least until the establishment of INDECOM,
it had little option but to ask the Commissioner, and through him the BSI, to
make inquiries. And that is what it did. The history shows that the PSC did not
turn a blind eye to the allegations against the Superintendent. It asked the
Commissioner to report on them before there was any question of promotion and
continued those inquiries when Superintendent Hewitt was recommended for
promotion. It asked for fatal incidents reports on all the officers
recommended. It interviewed Superintendent Hewitt for an hour (longer than the
other officers considered). It asked for further information thereafter. By the
time of the final decision, the DPP had reported on the results of all the
references to the DPP. All matters relating to Superintendent Hewitt had been
dealt with. That was, argues the Attorney General, all that could reasonably be
expected of the PSC.
27.
However, the focus has now shifted from whether the PSC should carry out
its own inquiries to whether it should call for further inquiries to be made,
in particular from a body which is independent of the JCF. To rephrase the
question posed by Morrison JA, did the PSC give proper consideration to the
Commissioner’s recommendation, without exercising its powers to call for
further inquiries, when it knew that serious allegations had been made against
the officer and that no independent investigation had taken place?
28.
In the Board’s view, the common law provides a straightforward answer to
that question. Before the Court of Appeal, the case got bogged down in a
technical dispute about whether there was an express statutory duty to make
further inquiries. Clearly there was not. But that does not answer the question
whether the proper discharge of the statutory functions which the PSC did have
required it to do so. Clearly it did. While the level of serious violent crime
in some parts of Jamaica was a grave concern, there was also a grave concern,
both nationally and internationally, that the police, or some members of the
JCF, were overly inclined to take the law into their own hands in dealing with
it, thus risking violations of the right to life, to due process of the law and
to equality before the law of the people involved. Superintendent Hewitt was
involved, as team leader, in a large number of fatal incidents. No independent
investigation of these incidents had taken place. INDECOM now existed for the
purpose of conducting such investigations. The PSC had power to ask INDECOM to
investigate. Receiving a formal complaint, or a request to act on its own
initiative, from such a source, it would be irrational of INDECOM not to take
some action in response. Such an investigation might reveal a different picture
from the very summary table of incidents with which the PSC had been provided.
It would serve to put the statements of the Commissioner, and of Superintendent
Hewitt himself, as to his effectiveness in fighting crime, into context. 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.
Conclusion
29.
The Board will therefore humbly advise Her Majesty that the appeal
should be allowed and a declaration made to reflect this Judgment. The parties
should make written submissions as to the precise wording of such a
declaration, to be agreed if possible, within 21 days.
30.
The parties should make written submissions on costs within 21 days of
the delivery of this judgment.
