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March 29, 2013The Honourable Speaker of the House of RepresentativesMr. Michael PeartGordon House81 Duke StreetKingstonAtt: Clerk of the House, Mrs. Heather CookeRe: Report to Parliament - INDECOMPursuant to Section 17(3) (c) and 30 (2) of the INDECOM Act 2010, it is an honour to present to you, the IndependentCommission of Investigations’ Report for tabling in the House of Representatives.Sincerely,Terrence WilliamsCommissioner of the Independent Commission of InvestigationsSearching for truth, striving for justice
Searching for truth, striving for justiceTable of ContentsCommissioner’s Message iDirectors of Complaints – INDECOM Jamaica iiExecutive Summary iiiPART ONE:THE RIGHT TO LIFEChapter 1: The Right to Life 1Chapter 2: Accountability for Taking Life 5Chapter 3: Use of Deadly Force 9Recommendations 15PART TWO:DEATH BY CONFRONTATION WITH MEMBERS OF THE SECURITY FORCESChapter 4: Background of Investigation and Terms of Reference19• Case Studies and FindingsChapter 5: Legal Framework – Local Law 22Chapter 6: De-Institutionalisation of the Mentally Ill 23Chapter 7: Best Practice When Dealing with the Mentally Ill 27Chapter 8: Analysis of the Problem 29Recommendations 32PART THREE:DEATH IN CUSTODYChapter 9: Background of Investigation and Terms of Reference35Chapter 10: The Legal Framework 38Chapter 11: The Jamaica Constabulary Force’s Existing Guidelines 40Names of The Deceased - Police Area 46Chapter 12: Other Jurisdictions – International Best Practices 47Chapter 13: Analysis of the Problem 50Recommendations 54
Searching for truth, striving for justicePART FOURAPPENDIX A(ON COMPACT DISC - CD):CLOSED AND CURRENT INVESTIGATIONS:COMMISSION’S REPORT LOG SHEETCURRENT INVESTIGATIONS: CASE MANAGEMENT REPORTS
Jamaica has for some time maintainedan average of about two hundred(200) persons being killed each yearby members of the security forces.This is, by any reckoning, a high rate. Raisingthis fact often excites the rival argumentsthat our crime rate is high on the one hand,and that the police must curb their excessiveuse of force, on the other hand. Botharguments as causative analysis suffer thedisadvantage of assuming facts that have notbeen proven. Certainly, by the law ofaverages, one can assume that all of thekillings are unlikely to be either justified orunjustified, but this is unsatisfactoryreasoning for such an important issue.The state must strive for everyone to knowwhether each killing was justified or not. Agenerally held feeling that agents of the statecan act with impunity regardless of our mostfundamental of rights will lead to mistrustand challenge the moral argument for thestate’s monopoly on the use of force. Thecredibility of a determination as to whetheror not a killing was justified will come frompublic trust in the investigation and anyprosecution or disciplinary hearing thatmight follow an investigation. Theinstitutions so charged must be impartial,effective, open and act with all due dispatch.The problem with Jamaica’s high rates offatal incidents involving the police surroundthe measures that exist to determinewhether each killing was justified or not. Inrelation to these fatalities the nation has seenprosecutions collapse or not mountedbecause of inadequate investigations andpoor institutional practices. Slowness, lackof independence and the apparent difficultyto ascertain the truth has reduced publicconfidence. Internal investigation by thepolice of their colleagues was not onlycontrary to law but unsatisfactory to thepublic.In this endeavour INDECOM plays a vitalrole as the independent investigator witheffective powers to get to the truth. This isan important development, but it is not theend of the journey. There are otherimportant steps that need to be taken beforeJamaica can claim full and true respect forall of our lives. The wheel need not bereinvented as there is a full slate of measuresand best practices decided andrecommended by international courts andorganisations.Juxtaposing the high rate of killings by theagents of the state against these untakensteps to ensure accountability reveals theproblem: Jamaica has not yet taken all of themeasures to secure and protect the right tolife. This report highlights these issues andsuggests further development of ourprotection of life.The Commission’s members of staffconsiders every human life important andare required to give all due attention to everyinvestigation of the taking of a life. Fromthis vantage point they see the currentsystemic and legal problems challenging therespect for life. This report also considersthe killing of mentally ill persons and deathsof people in police custody. Theseunfortunate deaths reoccur without anyapparent effort to learn something fromeach and to thereby forestall repetition.The Commission trusts that this report willprovoke discourse and then action.nCommissioner’s MessageMr. Terrence WilliamsCommissioner - INDECOMiSearching for truth, striving for justice
Searching for truth, striving for justiceINDECOM’s Directors of ComplaintsMr. Nigel Morgan, JP.Jurisdiction: Kingston, St Andrew,St. ThomasRev. Dr. Gordon EvansJurisdiction: St. James, Westmoreland,Hanover, TrelawnyMs. Sara-Ruth Allen, JP.Jurisdiction: Manchester, St. Elizabeth,and ClarendonMr. Floyd McNabbJurisdiction: St. CatherineLt. Col. (Retired) Paul Dunn, JP.Special Cases Unit(All-island jurisdiction); Portland,St. Mary, St. Annii
The Independent Commission of Investigations currentlypresides over 1,600 cases, inclusive of fatal and non-fatalmatters. These cases span the length and breadth of theisland, and are being investigated by the three offices – the CentralRegional Office in Mandeville and the Western Regional Office inMontego Bay. The parishes with the highest number of fatalities areKingston, Clarendon and St. Catherine respectively. In 2012, theCommission initiated 219 investigations into fatalities involving thesecurity forces. Of this figure March had the highest number (35),and May (10) having the lowest.Safeguarding the Right to Life is a comprehensive report whichfocuses on three (3) areas that the Commission believes ought to betaken into consideration based on its remit. Part One of the reportaddresses the right to life of every Jamaican. Part Two addresses tworelated issues that plague the security forces and the society on thewhole, these include death in custody and death of the mentally illwhen in confrontation with the police.THE RIGHT TO LIFEThe inalienable right to life of any citizen of Jamaica is fundamentaland ought not to be unjustifiably curtailed by another private citizenor an agent of the State. The right to life involves an obligation notto take life but to safeguard and protect life, and in the event that alife is taken, a procedural obligation for an independent, adequateand effective investigation. This enquiry must be treated with greatimportance and must also be accessible to relatives of the deceasedand open to public scrutiny. Additionally, the investigation must beso effective that it can lead to the appropriate punishment of thepersons responsible for this breach of the right to life withoutjustification.The report highlights recent jurisprudence on the scope of theState’s obligation to safeguard the right to life, namely the case ofMichael Gayle v Jamaica in which the Inter American Commissionof Human Rights (IACHR) found that Jamaica was in breach ofinvestigative obligations concomitant to the right to life andrecommended that legislative changes be made to ensure that anyinvestigative mechanism employed by Jamaica to investigate the useof force by members of the security forces be compatible withinternational standards. Other countries that have ventilated similarbreaches include the Netherlands, in the case of Ramsahai vNetherlands where the courts also found that the investigationbreached procedural requirements of adequacy and independenceconsequent on the right to life.Investigations conducted in 2012 suggest that much improvementhas been made compared to the arrangements which existed at thetime of the unfortunate events in the Michael Gayle matter. Despitethe important steps towards ensuring that Jamaica’s investigativearrangements are compatible with international standards, the workof INDECOM is sometimes hampered by differing views amongststakeholders as it relates to our remit and authority. Independenceis challenged due to our reliance on the Jamaica Constabulary Force(JCF) for important parts of investigations. The continued slownessof investigations and some uncooperative practices of the securityforces, all contribute to the right to life being somewhat illusory.As it relates to initial accounts of incidents by members of thesecurity forces, getting prompt statements remains a major challenge.This culture of tardiness poses a problem as it relates to the risk ofcollusion. However in other countries, officers involved in a shootingare not permitted to go home until they have given their individualversions of what happened to the investigators. This entire challengenot only hampers the process of investigating, but generalaccountability for the taking of a life. The recommendations relatedto this challenge require that statements be given promptly and therisk of collusion be reduced. It is also recommended that state agentsnot be returned to duty in the area where the incident occurredwhilst under investigation.USE OF DEADLY FORCEThe use of deadly force in effecting arrests is also addressed in thisreport. The existing laws, the Commission believes, needexamination in today’s context as they currently allow, in somecircumstances, for a person suspected of a felony attempting toelude the police to be stopped by the use of deadly force. This useof force may be disproportionate, especially if the offender doesnot pose a threat to anyone. It is the Commission’s view that theCourts will hold that common law principles on the use of force toapprehend a fleeing felon are incompatible with the Charter ofFundamental Rights. Parliament is asked to intervene and clarify thelaw and bring it in conformity with the Constitution.DEATH OF THE MENTALLY ILL WHEN INCONFRONTATION WITH MEMBERS OF THESECURITY FORCESIn 2011, six (6) persons were killed by police who were believed tobe of unsound mind and in none of those cases were any specialmeasures employed to handle a matter of this nature. Part Two ofthis report addresses the issue of the mentally ill being killed whenthey are in confrontation with the police.Based on our investigations, we submit that dealing with someoneof impaired reason may present a challenge to a constable seekingto apprehend him. That said, the JCF must train and instruct theirmembership on using force against a mentally disturbed person, asa police officer who kills a mentally disturbed person may be liablefor murder or for the tort of negligence.The JCF Training Manual gives guidelines as to how to treat witha mentally ill person. The most important guideline being that thementally ill person should be treated in an unhurried, calm,non-authoritative manner; in addition, the constable should notbecome angry and impatient if the mentally ill person seems to beignoring them. The Manual also states that the constable should haveadequate assistance, which is considered to be at least five (5) officersnearby.Nonetheless, our investigations suggest a lack of patience on thepart of the police when handling mentally ill persons as some 75 percent of confrontations with the mentally ill and the police end infatalities, while 25 per cent end in injuries. The numbers,iiiExecutive SummarySearching for truth, striving for justice
vhowever, vary according to the Division in which it occurrs; forexample, Areas Two and Three accounted for 90 per cent of thefatalities involving mentally ill persons in confrontation with thepolice, and this was recorded for the period 2005 to 2012. We alsofound that in most of the cases, the mentally ill persons were knownto the police and were in possession of an offensive weapon whenthey were fatally shot. At this time, international best practices, theCommission believes, ought to be employed. The use of non-lethalweapons such as tasers are used in other countries as a way ofminimising the possibility of a fatality. Local mental healthprofessionals agree that non lethal alternatives are most appropriatewhen dealing with the mentally ill. The Taser itself is a self-defenceweapon and a good alternative to a firearm. Should this become analternative weapon to be used by the security forces, it isrecommended that a clear User Policy be developed andimplemented to ensure appropriate use.In this report, the Commission formulated recommendations thatit believes can reduce the incidence of fatality among this cohort.We thought it prudent to have a Medical Response Team for eachregion consisting of police officers with specialised training in deal-ing with the mentally ill and psychiatric aides. Also among the Com-mission’s recommendations was the implementation of ongoingrefresher courses in how to manage the mentally ill. These recom-mendations were made against the backdrop that the common trendsuggests that the police are ill-equipped and unprepared to handlesituations involving the mentally ill.DEATH IN CUSTODYPart Three of this report addresses the issue of death in custody.In May 2011, it was brought to the Commission’s attention that in2008, a number of prisoners died while in custody at the PortAntonio Police Station. Checks were made thereafter and it wasrevealed that five (5) of these deaths occurred in the same stationduring the period 2005-2009. The Commission, consequently,launched an investigation into the death of prisoners while in thecustody of the police and these investigations further revealed thatat least 36 deaths have occurred between the years 2005 and 2012.The Commission is of the view that some of the conditions thatresult in the death of these prisoners can be prevented. Additionally,efforts made to access reports of investigations into these incidentsrevealed that these deaths were not well investigated. TheCommission also found that many of these persons who died incustody were mentally ill.We believe the right to life of any citizen triggers an obligation onthe state to preserve the citizen’s life, thus all measures must be takenin this regard.The report, in part, speaks to several areas in which theCommission found cause for concern, chief among them being thepractice of housing insane persons and sane persons in the samearea; the poor record-keeping mechanisms in place; cell conditionsand the investigations of persons who have died in custody.The recommendations formulated for this section of the reportemanated from these concerns and include the development andmaintenance of a compulsory assessment of prisoners concerningtheir propensity to commit suicide. Additionally, it wasrecommended that the officers be trained in how to handle thementally ill, and that cells be checked at least four (4) times in anhour where the assessment of the prisoner suggests that he may besuicidal.We thought it prudent to suggest timelines for all the recommen-dations given in this Report, therefore some of the measures weregiven timelines from 60-180 days.nSearching for truth, striving for justice
PART ONE:THE RIGHT TO LIFESearching for truth, striving for justice
Chapter 1: The Right to Life1Searching for truth, striving for justiceSUMMARYThe starting point must be full comprehension of the meaning andscope of a citizen’s inalienable right to life. This right is fundamentaland must not be curtailed or derogated from, even during periods ofnational emergency. The right to life involves:(a) a substantive obligation not to take life;(b) another substantive obligation to safeguard and protectlife, and(c) a procedural obligation for independent, adequate andeffective investigation of the taking of a life. Suchinvestigations must be accessible to the relatives of thedeceased and be open to public scrutiny.The taking of life must always be subject to enquiry, and theenquiry assumes even greater importance once a death occurs at thehands of members of the security forces or other agents of the State.The object of such an investigation is to discover whether the forceused in such cases was or was not justified, and to identify and punishthose responsible. In that investigative quest, all the surrounding cir-cumstances must be considered including the planning of the opera-tion and the control of forces on the ground.Where the use of force is permitted, it must be shown that thetaking of life was proportionate, having regard to:(a) the nature of the aim pursued;(b) the dangers to life and limb inherent in the situationand;(c) the degree of risk to life in the use of force employed.THE REQUISITES OF A RIGHT TO LIFEINVESTIGATION: EFFECTIVENESS ANDINDEPENDENCEAn effective right to life investigation is one which is capable ofleading to the identification of wrongdoing and its perpetrators.Further, the investigation must be effective in the sense that it leadsto the punishment of those persons responsible for breaches of theright without lawful justification.Recent jurisprudence on the scope of the State’s obligation tosafeguard the right to life of everyone in its jurisdiction stipulates thatwhen the right is breached by members of the Security Forces orother agents of the State, an independent investigative mechanismmust be triggered which has no institutional or hierarchical connectionwith the forces or other agents of the State under investigation.In assessing that jurisprudence, the following requirements foradequate, effective and independent investigations are:(a) the investigation must be reasonably prompt andexpeditious;(b) efforts must be made to reduce the possibility ofcollusion among State agents before they give their initialreports to the independent investigator;(c) the investigation must have the means to determinewhether the use of force was justified and to identify andpunish anyone implicated;(d) the investigators must not have institutional orhierarchical connection with the State agents underinvestigation; and(e) there must be reasonable public scrutiny and involve thenext of kin.
2Searching for truth, striving for justiceTHE RIGHTThe Constitution of Jamaica (as amended by the Charter ofFundamental Rights and Freedoms Act) states:“13—(1) Whereas (a) the state has an obligation topromote universal respect for, and observance of,human rights and freedoms;………(2) Subject to sections 1 and 49, and to subsections (9) and(12), and save only as may be demonstrably justified in afree and democratic society:(a) this Chapter guarantees the rights and freedomsset out in subsection (3) and (6) of this section andin sections 14, 15, 16 and 17; and(b) Parliament shall pass no law and no organ ofthe State shall take any action whichabrogates, 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 theperson and the right not to be deprived thereofexcept in the execution of the sentence of acourt in respect of a criminal offence of whichthe person has been convicted”.THE RIGHT TO LIFE JURISPRUDENCE ANDRELEVANCE TO INDEPENDENT ANDEFFECTIVE INVESTIGATIONSMichael Gayle v Jamaica Case 12.418, Report No. 92/05delivered October 24, 2005FactsOn Saturday, August 21,1999 Michael Gayle, a young man ofobviously unsound mind, was severely kicked and beaten by somemembers of the security forces (Jamaica Constabulary Force andJamaica Defence Force) on duty at a curfew barricade. A police officerin the party arrested and charged Gayle for assaulting members ofthe barricade party and resisting arrest. The officer subsequentlyadmitted that these were false charges. Gayle died from his injuriestwo (2) days later.The investigation was conducted by the Bureau of SpecialInvestigations (the BSI), an arm of the Jamaica Constabulary Force(the JCF). The area of the barricade was not examined for forensicevidence. No identification parade was conducted. Statements werenot collected from members of the security forces present until aweek had elapsed. Their uniforms and equipment were not examinedfor trace evidence.A Coroner’s Inquest ruled that all of the officers present were tobe charged, but the Director of Public Prosecutions demurred citinginsufficiency of evidence. Thus, no charges were laid.IssuesThe most important issue in the case was whether Gayle’s right tolife had been breached given that:a. he was killed by agents of the State;b. there was no effective and independent investigation intohis death.Jamaica accepted the first ground but denied the second.RulingThe Inter American Commission of Human Rights (the IACHR)found that Jamaica was in breach of the investigative obligationsconcomitant with the right to life. The IACHR thus recommendedlegislative changes to ensure that any investigative mechanismemployed by Jamaica to investigate the use of force by members ofthe security forces and other State agents would be compatible withinternational standards.The IACHR further found that:a. In the face of Jamaica’s high number of fatal incidentsinvolving the security forces, the nation had a particularlyhigh burden to show that investigations were adequate,effective, and independent. ; andb. The BSI’s investigations were below the minimuminternational standards required. (See the MinnesotaProtocol). .In relation to points listed above, the IACHR had this to say:“91. Further, the Commission cannot accept the State’scontention that its approach in interviewing security personnelone week after the incident was “methodical and diligent”.Security Force personnel were best placed to identify individual perpetrators,especially in view of the fact that identification lineups were not utilised as a meansof providing civilian witnesses with an opportunity to identify individual officers.The IACHR’s third point on the issue of adequacy andeffectiveness was that the investigation should have been conductedfrom the outset by an authority independent of the JCF and theBy failing to carry out these interviewsexpeditiously, the State not only jeopardised thereliability of any accounts given by officersconcerning pertinent events, for example through thecoordination of evidence, but also exacerbated thepossibility that the officers would refuse toimplicate one another, rendering it impossibleto substantiate individual responsibility basedupon the testimony of officers who were at thescene.”
3Searching for truth, striving for justiceJamaica Defence Force (the JDF). This authority would have to beempowered to effectively investigate, leading to the charging ofpersons implicated. In Gerville Williams et al v The Commissioner of INDECOM JMFC 1, Sykes, J commented on the lack of independence ofthe BSI and the general public feeling as to the inadequacy ofinvestigations prior to the Independent Commissions ofInvestigations Act.  – Sykes, J and Williams, J were of the view that the Act was designedto cure the ills of the past and to provide for investigations that canunearth “all information regarding any misdeed on the part of thesecurity forces”. ,Ramsahai v Netherlands (2008) 46 EHHR 43 ECHR (GrandChamber)FactsR, being armed with a firearm, robbed V of his scooter. Vimmediately reported the matter to a police officer who caused it tobe broadcast on the police radio network. Officers Bruns and Bulstrasaw R on a scooter fitting the description broadcast. They confrontedR to apprehend him, there was a struggle and R got free. R drew thepistol, Bulstra drew his and ordered R to put down his weapon. Rrefused. Bruns approached R and R turned the weapon on him. Brunsdrew his and shot R in the neck. R died within minutes.After the shooting the Police Commissioner was reported to havesaid that: “Whatever kind of committee of inquiry may be set up inaddition, I will not let them in.”Police from Bruns and Bulsrta’s department attended the scene,conducted forensic examination, and canvassed for witnesses. Theinvestigation was thereafter taken over by the State police force. TheState prosecutor ruled that the shooting was in self-defence.IssuesThe deceased’s family complained inter alia that the investigationbreached R’s right to life as it was not independent, effective oradequate for the following reasons:a) key parts of the investigation were conducted by members ofthe same Force of which Bruns and Bulstra were members;b) officers Bruns and Bulstra were questioned three (3) days afterthe incident giving them an opportunity to collude;c) officers Bruns and Bulstra were assigned the same lawyer;d) all the officers who arrived at the scene were not questioned asto what Bruns and Bulstra reported to them;e) the precise trajectory of the fatal shot was not determined;f) Bruns and Bulstra’s hands were not swabbed for gunshot residueand their weapons and ammunition were not examined;g) the absence of reconstruction or postmortem diagrams; andh) the Police Commissioner’s uncooperative statement.RulingA. General Principles -The State’s obligation to protect the right to life implies that therewill be an effective investigation of the taking of a life. Theinvestigation must be aimed at enforcing domestic criminal and civillaws, and to ensure accountability of agents of the State for their useof force.The investigation must be independent in law and practice. Theremust be no institutional or hierarchical connection between theinvestigator and the State agents suspected of being implicated.The investigation must be capable of determining whether the useof force was justified, and identifying and punishing anyoneresponsible. The investigator must secure forensic evidence andwitness statements. The investigation must also have a measure ofpublic scrutiny as public confidence in the State’s monopoly on theuse of force is at stake.B. BreachesThe investigation breached the procedural requirements of adequacyand independence consequent on the right to life as:a) the firearms and ammunition were not examined. There was noreconstruction, no postmortem illustrations, and no hand swabbing.;b) although there was no evidence of actual collusion, Bruns andBulstra were not separated pending their giving statements and thestatements were taken after three (3) days. ;c) the independent investigator did not start his work until 15hours had elapsed.;d) essential parts of the investigation (including forensicexamination and door-to-door canvassing) were done by officers fromthe same force of which Bruns and Bulstra were members ;e) supervision of the investigators by another party (e.g. theProsecuting Service) could not render the investigation independent. Whilst the police could not be expected to remain passiveuntil the independent investigator arrived, there were no specialcircumstances that permitted the local police from going beyondsecuring the scene. C. The Court further ruled that:Whilst the public prosecutor was independent of the police,problems may sometimes arise where the prosecutor has a working
4Searching for truth, striving for justiceP219 (asalitytaFceoliP 31, 2012)c.et Da 31, 2012)lyuJgAutpSetOcvoNcDeanJbFerchMarilApyMaenuJebmuN0 5anJanJ bFeshDeatff Deatore 11 2010 15rchMa rilAp yMa35 12 1020 25enuJ lyuJ gAu pSe18 16 17 1930 35 40tp Oct voN cDe19 24 18 1940Figure 1. Indicates the number of security force-involved fatal shootings in 2012 on a monthly basis. (Source: INDECOM Registry)relationship with a particular police force. It would therefore havebeen better if a prosecutor unconnected to that police force had ruledon the case.  – As investigative files may contain sensitive information, it is not arequirement of the right to life that the investigator satisfies everyrequest for disclosure. - The degree of public scrutiny of the investigation varies from caseto case. The test is whether the scrutiny is sufficient for accountability,fosters public confidence in the State’s use of force, and prevents anyfeeling of collusion or tolerance of unlawful acts. D. The Court found that:a) the shooting did not violate the right to life (unanimous);b) the investigation did violate the right to life in that it wasinadequate(13 to 4) and insufficiently independent (16 to 1);andc) awarded them EURO 20, 000 plus costs.In Saunders and Tucker v IPCC  EWHC2372, Ramsahai was applied and the Court criticised thepractice of police officers conferring before giving a state-ment and ruled that directives ought to be given to preventinvolved officers from colluding or to reduce the risk of in-nocent contamination. nPOLICE FATALITIES 2012
OVERVIEWEfforts continue to ensure that the investigation of homicidesallegedly caused by agents of the State accord with the proceduralobligations described in the preceding chapter. Investigationsconducted in 2012 reveal much improvement when compared to thearrangements that existed at the time of the unfortunate eventsinvolving Michael Gayle.On the positive side, the Commission’s investigations are largelyindependent and most police officers defer to the Commission’sauthority as regards processing scenes. The Commission is assiduouslyworking on the backlog of cases formerly investigated by the JCF’sBureau of Special Investigations and by the Police Public ComplaintsAuthority (the PPCA) whilst initiating contemporary investigations.Issues that remain surround the challenge to independence fromthe Commission’s reliance on the JCF for important parts of theinvestigation, the continued slowness of investigations, and practicesof the security forces that can, in some instances, contribute to theright to life being illusory.INDEPENDENCEThe Commission was established as an Independent Investigatorwith broad powers. This was an important step towards ensuring thatJamaica’s arrangements became compatible with the internationalstandards, as expressed by the IACHR in Michael Gayle. Despite thesepowers, the Commission’s work is sometimes hampered by differingviews amongst stakeholders as it relates to our remit and authority.The investigations conducted by the Commission depend heavilyon the JCF’s input regarding the conduct of identification parades.This issue was referred to in our report to Parliament, “Confrontingthe Challenges” (P. 28-32), and we await consideration of ourrequest for amendment of the statute.To enhance the effectiveness of investigations, the Commission,with the grant aid of the United Kingdom’s Department ForInternational Development (DFID), has established its ownMicroscope Laboratory and engaged an internationally recognisedballistic expert. The Commission is pleased to have the resources tobegin to confront this backlog and is targeting by its third anniversaryto bring down average completion time for investigations.INITIAL ACCOUNTS BY SECURITY FORCEPERSONNELThe Commission has organised itself to achieve well over ninetyper cent (90%) compliance with the standard of commencinginvestigations of a fatal event anywhere in Jamaica within two (2)hours of report. Full compliance will come with the establishment ofa regional office in the North East. The Commission’s investigatorshave also been instructed to require that police officers give them theirfirst-hand account within a few hours of the incident.The Commission continues to face difficulties in getting promptstatements from security force personnel. This is important to endthe culture of tardiness in these investigations and to impedecollusion. The Commission notes that most modern police forces willnot permit police officers present at a shooting to go home from theirshift until the officers have given their individual versions to theinvestigator. In some cases investigated in the past year, seniorofficers permitted officers involved in shootings to go off duty with-out being available for interview by the Commission’s investigators.Getting a statement from a police officer under three (3) days of anincident remains exceptional.The Commission notes that the Full Court’s holding that theCommission’s statutory power to require any person to answer aquestion or give a statement was not incompatible with theConstitution. This power is meaningless if the involved officer isunavailable when the Commission’s investigators arrive.Most modern police forces order their membership not to discussthe case amongst themselves prior to being interviewed or giving astatement to the independent investigator. In Jamaica there is no suchprovision and, to the contrary, the JCF’s high command perceives thattheir members have a right to confer.THE RIGHT TO LIFE MUST NOT BE AN ILLUSIONBing ImagesChapter 2: Accountability for Taking Life5Searching for truth, striving for justice
6The situation is not always bleak as, in a handful of cases, JCFsupervisory officers cause involved officers to remain at the scene orat the police station, fostering prompt interviews and statements. TheCommission is happy to report productive discussions with the PoliceFederation and the Special Constables Association so that they mightsensitise their membership as to the Commission’s operational aimsfor prompt statements. The Commission continues to engage JCFunits and formations in this regard. Nevertheless, on many scenespolice officers and soldiers appear unsure of the Commission’sauthority and express a desire that their respective high commandswould advise them by way of express policy or orders.JCF POLICY AND THE ISSUE OFCOLLUSIONThe JCF Use of Force Policy is influenced by the EuropeanCourt of Human Rights’ (ECHR’s) jurisprudence on the right to lifeand by the United Nations Code of Conduct for LawEnforcement and the Basic Principles on the Use of Force andFirearms. The Use of Force Policy requires that personnel reporta discharge of firearm to their immediate supervisor “as soon aspracticable”. The supervisor must inspect the officer’s pocketbook toensure that an entry is made of the firing and the officer must fullydocument the circumstances1.The Basic Principles on the Use of Force and Firearms insiststhat the state and JCF establish effective reporting and reviewprocesses for the investigation of cases of death or serious injury.These processes must include recognition of the jurisdiction ofindependent authorities and the courts2.The current JCF policy and the practices are deficient, in that, itdoes not mandate measures to prevent concerned officers fromcolluding and, it does not fully recognise the remit of theCommission.The Commission reminds that our report “Confronting theChallenges” noted a practice of conferring and vetting before policeofficers gave statements and recommended that the Commissionerof Police and the Chief of Defence Staff issue orders prohibitingdiscussion of an incident by officers involved prior to giving astatement to the Commission3. Although the JDF’s response wasfavourable, the JCF demurred. The JCF said that they were unsure ofthe purpose of the recommendation and claimed that a police officerhad a right to “research among his colleagues”4. Since this report andthe security forces’ response were tabled in Parliament, little haschanged.The Commission returns to this important issue recognising thatthe nation and the JCF intend and desire for policing to be rights-based. In this regard, the decisions of the ECHR in Ramsahai vNetherlands and the England and Wales High Court in R (Saundersand Tucker) v IPCC should assist the JCF in concluding that theircurrent practices and policies are not compliant with the constitutionalright to life.It is important to reiterate the legal principles:“. ………that in the case of a fatal shooting by police officersthe State may be held to have violated Article 2 if, in the courseof the investigation required by the Article, adequate steps werenot taken to prevent the police officers directly concerned fromconferring before producing their first accounts of the incident;and that that is so even if it cannot be shown that they in factdid confer………..the court would be very chary of a general practiceunder which officers who are key witnesses in an Article 2investigation are expressly permitted to collaborate in theproduction of their statements: the opportunity for collusionis, so to speak, institutionalised.5”It would seem that, with the greatest of respect, there is no rightto “research amongst his colleagues” and such practice is in factrepugnant to the right to life and unprofessional.Example can be drawn from the United Kingdom Association ofChief Police Officers (ACPO) who, when confronted by this issue,modified their policy to prohibit acts of collusion. The ACPOManual of Guidance6now provides:“7.94 As a matter of general practice, officers should not conferwith others before making their accounts (whether initial orsubsequent accounts). The important issue is to individually recordwhat their honestly held belief of the situation was at the time forcewas used. There should therefore be no need for an officer toconfer with others about what was in their mind at the time forcewas used. If, however, in a particular case a need to confer on otherissues does arise then, in order to ensure transparency and maintainpublic confidence, where some discussion has taken place, officersmust document the fact that conferring has taken place, highlighting:a) Time, date and place where conferring took place;b) The issues discussed;c) With whom; andd) The reasons for such discussion7.95 There is a positive obligation on officers involved to ensurethat all activities relating to the recording of accounts is transparent“...in the case of a fatal shooting by policeofficers, the State may be held to haveviolated Article 2 if, in the course of theinvestigation required by the Article,adequate steps were not taken to prevent thepolice officers directly concerned fromconferring before producing their firstaccounts of the incident; and that that is soeven if it cannot be shown that they in factdid conferSearching for truth, striving for justice
and capable of withstanding scrutiny.” [Emphasis added]The Commission notes that the JCF’s Use of Force Policy andthe Chief of Defence Staff’s instructions for the use of deadly forceare to be admired for their detailed guide to their members as regardsthe need for proportionality in the use of force; thereby helping tosatisfy the two (2) substantive State obligations regarding the right tolife.However, the problem is that, if members of the security forcesare not properly accountable by an effective investigative process, thesubstantive obligations associated with the right to life will not befulfilled, and the consequence of the failure to fulfil them is to renderthe right to life unreal and illusory.The Commission’s considered view is that the relevant forces oughtto take necessary steps to implement rules which require theirmembers to submit to the appropriate investigative process.At present, the reverse exists in Jamaica, especially as regards theJCF where, the high command seems to maintain rigid adherence topractices which encourage collusion, thus minimising the effectivenessof an investigation. This is so notwithstanding that it is now patentthat such practices are inconsistent with the right to life.The Commission is of the view that the relevant forces and otheragents of the State need to continue in their progress towards rights-based actions by incorporating international best practices in formingthe requirement for accountability in the use of force.The Commission therefore recommends that the Commissioner ofPolice, Chief of Defence Staff and Commissioner of Corrections issueorders to the members of their respective forces and auxiliaries pro-hibiting members - involved in, present at, the use of force against amember of the public where sexual assault, injury or death results -from conferring before giving their accounts to the Commission andrequiring that where, exceptionally, there has been some conferring,this be noted and fully disclosed.ADMINISTRATIVE REVIEWSIn investigations conducted in 2012 the Commission has continuedto note that state agents involved in homicides are returned to fullduties within a few days of the incident - even controversial ones -following an internal review. In this determination the Commissionis never consulted.The internationally accepted principle is:The JCF Use of Force Policy does not conform with theseprinciples. The policy provides:“On this point, the Court underlines the importance ofsuspension from duty of the agent under investigation in orderto prevent any appearance of collusion in or tolerance ofunlawful acts.”7“161. Although the criminal investigation may require some timeto reach a conclusion, the administrative investigation shall be of shortduration, reaching a preliminary judgment within forty-eight (48)hours of the incident. In each case when a member uses deadly force;the following procedure will be followed:a. The Commanding Officer of the member involved shallrelieve the member from duties in any operationalassignment.b. The Commanding Officer in charge may either assign themember to some administrative duty or relieve the memberfrom all police duties, pending the outcome of theadministrative review.c. The Divisional Commander for the division in which theincident occurs or his designate and one member of theBureau of Special Investigations (BSI) and the AssistantForce Chaplain shall conduct a preliminary investigation todetermine:(i) If the shooting seem justified or not.(ii) If Force Orders and procedures were followed or notand that the member’s physical and emotional state is suchthat he/she is capable of resuming normal police duties.(iii) Submit a written report embodying all available factsthrough the Area/Branch Officer to reach theCommissioner of Police as early as possible and in anyevent, within 24 hours of the occurrence.(iv) Where the members’ Commanding Officer is not theOfficer in charge of the Division in which the incidentoccurred, it shall be the responsibility of the officer incommand of the Division where the incident occurred toforward the report required (See (iii) above).(v) The Commissioner shall reserve the right in all cases todetermine the return of the member to operationalduties within the 24 hours.”The policy permits an officer to return to duty before theinvestigation is complete. The Commission has noted that in someinstances the constable is returned to full duties even where there isreason to doubt that the shooting was justified.The decision to return an officer to duty ought to await thecompletion of the investigation for its full clearance. Unfortunately,the breach of the appropriate standards is sometimes exacerbated bythe officer under investigation being returned to do police duties inthe very community the incident took place.Certainly, these investigations can be protracted. We also7...the importance of suspension from duty of theagent under investigation in order to prevent anyappearance of collusion in or tolerance of unlawfulacts.”Searching for truth, striving for justice
8acknowledge that the JCF’s deployment strength may suffer ifsignificant numbers of personnel are withdrawn from active duty,nevertheless, the JCF risks great public opprobrium when it returnsofficers suspected of being involved in controversial extra-judicialkillings to duty. The JCF may unwittingly encourage impunity whereit returns officers who have been uncooperative with officialinvestigations to full duty.In a particular investigation, the members of the police team thatwere reportedly involved in the incident were returned to frontlineduties within days of the incident. Indeed one officer was laterpromoted. This decision was taken despite the Commission’sindication of the strength of the case at that time.The expressed suspicion of the BSI was that there were sometroubling issues concerning the shooting, the failure of all the officersto fully document what had happened, and the officer’s lack ofcooperation with the Commission’s investigation.When the Commission enquired into the matter, the Commissionerof Police advised that the participation or recommendations of theCommission were unnecessary for the administrative review process.The Commission is puzzled that the JCF did not welcome theCommission’s input given the fact that it was clear that it wasconducting an investigation and had information that the BSI was notyet privy to. The Commission further notes that the officers, in thatcase, were in breach of Force policy in not documenting theiraccounts.It is therefore recommended that the Commissioner of Police, theChief of Defence Staff and the Commissioner of Corrections issueorders that:(a) officers conducting reviews of incidents where force was used,shall seek the input of the Commission’s Director of Complaints incharge of the investigation before determining whether policepersonnel involved in an incident (where the rights of a citizen havebeen allegedly abused) is returned to full duties pending thecompletion of the investigation;(b) that members of their force not return to their full duties whilethe matter is under the investigation or trial; and(c) prohibit a review panel from returning an agent of the State tofrontline duties where that agent is in breach of a request made pur-suant to Section 21 of the Independent Commission ofInvestigations Act. nIn a particular investigation, the members of thepolice team that were reportedly involved in theincident were returned to frontline duties withindays of the incident. Indeed one officer was laterpromoted. This decision was taken despite theCommission’s indication of the strength of thecase at that time.The Commission is puzzled that the JCF did notwelcome the Commission’s input given the fact thatit was clear that it was conducting an investigationand had information that the BSI was not yet privyto. The Commission further notes that the officers,in that case, were in breach of Force policy in notdocumenting their accounts.Searching for truth, striving for justice
Chapter 3: Use of Deadly Force9Searching for truth, striving for justice"[I]f persons who are pursued by these officers for felony or thejust suspicion thereof . . . shall not yield themselves to these officers,but shall either resist or fly before they are apprehended or beingapprehended shall rescue themselves and resist or fly, so that theycannot be otherwise apprehended, and are upon necessity slaintherein, because they cannot be otherwise taken, it is no felony.”8“Again though where a felon flying from justice is killed by theofficer in the pursuit, the homicide is justifiable if the felon could nototherwise be overtaken.......and the jury ought to inquire whether it were of necessity or not.”9INTRODUCTIONWhen is it lawful to use deadly force to arrest a suspected offenderfleeing apprehension? Is it justified for a constable to shoot at asuspected pickpocket who has evaded arrest but poses no immediatephysical danger to anyone? What of a suspected serial murdererfleeing apprehension but not threatening immediate physical harm?Should the officer refrain from shooting him although there is goodreason to fear that he may shortly resume taking life?To be clear, the issue does not concern a suspected offender whois physically resisting arrest. And persons suspected of offences oughtto peacefully submit themselves to lawful arrest. What can the policedo when they do not?Consider the case of a non-violent suspected offender; is it betterthat he be killed rather than elude arrest?The old common law rule, as recounted above, permits deadlyforce to apprehend felons, but that rule has been criticised forcenturies and there have been attempts to reformulate it. TheCommission respectfully opines that with the promulgation of theCharter of Fundamental Rights and Freedoms (ConstitutionalAmendment) Act, 2011 the juridical basis of the former assuredanswer has been eroded.This chapter traces the common law principles and describes thepotential conflict with the new paradigm. The Commissionrespectfully submits that the current state of the law is unacceptablycomplex and uncertain. Legislative reform is recommended.The Commission has investigated many cases in the past year thathave raised this issue. Typically the cases present these circumstances:A constable suspects that a person has committed an offence and triesto apprehend him, but the suspect flees and the constable fires hisgun, killing the suspect and sometimes injuring other persons nearby.USE OF DEADLY FORCE IN EFFECTING ARRESTSTHE FLEEING FELON
Interestingly, in all the cases investigated the constable claimed thatthe fleeing suspect was a threat to him and that he fired inself-defence. In some cases there are good reasons to believe that ajury would reject that defence compelling consideration of thelawfulness of the use of force absent any threat of violence from thearrestee.EXISTING LAWR v. Astley RickettsIt was October 14, 1983 when Winston Moore, in perpetrating afraud, presented a cheque at a commercial bank. Moore, realising thatthe bank officer was “on to him”, fled and a bank employee cried outto Special Constable Astley Ricketts, the bank’s security officer, toapprehend him. Ricketts, with his firearm drawn, held Mooremomentarily with the one hand but Moore forcibly released himselfprotesting his innocence. Moore walked away; Ricketts pursued himand fired three (3) shots. Moore, an unarmed, non-violent suspect,was dead because he had resisted apprehension.A jury convicted Ricketts for murder, but his conviction wasquashed by the Jamaican Court of Appeal on the basis that the trialjudge had failed to direct the jury on the principles governing theapprehension of a fleeing felon.10In their unanimous decision their lordships criticised the trial judgeruling that the summation had:“diverted them (i.e. the jury) from the single-minded considerationas to whether in the given circumstances the appellant had actedreasonably in firing at the deceased with a view to apprehend him onthe reasonable suspicion that he had committed a felony in the bank.”Certainly, it is desirable that all suspected offenders surrender orbe apprehended so that they may face justice, but that it could everbe justified to use deadly force to apprehend an unarmed non-violentfelon seems antediluvian. Indeed this may explain why Ricketts, whenfirst taxed with the offence, claimed that his firearm had beendischarged when he had been wrestling with Moore.The longstanding principle needs examination in today’s context:Is it disproportionate to take life in this endeavour where thesuspected offender threatens no immediate physical harm to anyone?COMMON LAW PRINCIPLEUnder the common law principles, deadly force was permissible toapprehend a fleeing felon but not for a person suspected of havingcommitted a misdemeanour.For the common law principle as described by Hale in the 18thcentury, and applied in Astley Ricketts, to apply, a jury would have toconsider whether:a) the defendant reasonably suspected that the person to whom theforce was directed had committed a felony; andb) the force employed was reasonable and necessary to lawfullyapprehend the suspected felon.Offences are still classified in Jamaica as treasons, felonies, ormisdemeanours. The nomenclature is an ancient one, with the truedistinction being that for treasons and felonies, the Crown couldforfeit the offender’s property while, for misdemeanours, no forfeitwas possible. It is often also said that for felonies, the historicpunishment was death, but this was not always correct. Certainly themost serious offences are felonies, but some felonies are decidedlynon-violent. Further, only two (2) felonies - treason and capitalmurder - remain today as capital crimes.Smith and Hogan described the common law principles as being“astonishing when viewed in the light of modern conditions andattitudes”11and went on to proffer examples:“If D steals my handkerchief and, being fleeter of foot than I, ismaking his escape, may I lawfully shoot him down?....It is incrediblethat this is the law.”REASONABLE SUSPICIONSuspicion denotes a state of belief where proof is lacking.12Forsuspicion to be reasonable, it is not enough that the arresting officertruly believes. In addition to honest belief, the arresting officer musthave objective grounds for this belief that would satisfy a reasonableman.13An arrestor who kills to execute an arrest will not be excused if hedid not suspect that the arrestee had committed a felony. InDadson14a police officer killed a man who was stealing wood froma copse. Ordinarily this would be a misdemeanour but, unknown tothe constable, the deceased had had previous convictions for thisoffence and, under the law, this subsequent offence was a felony. Thecourt held that the constable’s actions were unjustified.10Searching for truth, striving for justice“If D steals my handkerchief and, being fleeterof foot than I, is making his escape, may I lawfullyshoot him down?....It is incredible that this is thelaw.”- Smith and Hogan
11Searching for truth, striving for justiceReasonable suspicion is a relatively low test normally employed tojustify an arrest; it is not even enough to have someone charged withan offence. Suspicion is prone to error but, as a test for arrest, themischief of misplaced suspicion causing a loss of liberty pales whencompared to loss of life.The police may have information linking the occupants of a motorcar to a previously committed felony, such suspicion would besufficient to justify arresting all of the occupants of the car.15Couldit be justified, firing on the fleeing car and killing the occupants?In a case investigated in 2011, the police suspected that theoccupants of the car had committed a felony. Their suspicion wasbased on insufficient information; they were mistaken. Sadly theoccupants ran from the police and one (1) of them was shot and killedby the police.If the men had stopped the police’s suspicion would have beeneasily dispelled but, as it turned out, a life was lost.LAWFUL ARRESTA lawful apprehension without warrant must be based upon theexistence of a reasonable suspicion as described earlier. It is aprocedural requirement of a lawful arrest that the arrestee beinformed, shortly before or after an arrest, of the true reasons for hisarrest unless the exigencies of the situation make this impractical orimpossible; for example, where the arrest is being forcibly resisted.16The aim is to ensure that the arrestee appreciates the legal and factualgrounds for his arrest.17The constable need not use technical languageor specify a particular crime. The purpose of this requirement is toput an arrestee in a position that he can volunteer information toavoid arrest.18PRIVATE CITIZENSIt would seem that even private citizens seeking to effect a lawfularrest could claim the common law defence. InRobinson v Dunkley19the Jamaican Court of Appeal was asked toconsider the common law principles surrounding citizen action inpursuit of a fleeing felon. On the raising of the “hue and cry”, aprivate citizen may, without warrant, arrest and detain anyone foundcommitting a felony. Indeed the able-bodied citizen would be obligedto prevent the escape of the felon.REASONABLE AND NECESSARY FORCEFirst, it must be noted that the common law principle does notexcuse force that is unnecessary or excessive to the legitimate end, i.e.the apprehension of the suspect. Does the measure ofreasonableness extend further to prohibit the use of force incircumstances where it would be disproportionate? Are theresituations where deadly force ought not to be used even when thisappears to be the only way to apprehend a felon? The 18th centuryapproach did not seem to contemplate this at all.The Court’s ruling in Ricketts does not conclude that the specialconstable was justified in his use of deadly force; just that the judgewas wrong not to have left it to the jury. It does not appear that theCourt considered the proviso.20If they had they would have had toevaluate whether, on the facts and despite the non-direction, aconviction was inevitable.The celebrated case of R v Clegg21may be instructive. The trialjudge had found that a soldier fired three (3) shots in self-defence ata motor car that had been violently bearing down at him and hiscolleagues. However, the soldier’s fourth, fired when the car wasspeeding away, was not. This shot killed a passenger. The trial judge22did not think that there was sufficient evidence to consider thedefence of using force to apprehend a suspect. The Court of Appealdisagreed with the judge on this point but went on to considerwhether the conviction was nevertheless safe.The Court of Appeal ruled that the conviction was safe as therewas no evidence that the soldier had suspected that the driver of thecar was a terrorist or, would commit terrorist offences in the future.They ruled that any reasonable tribunal would find the soldier’s actionsto be “grossly disproportionate”. The House of Lords approved theCourt of Appeal’s finding that the soldier employed excessive, andtherefore unlawful, force.The case of George Finn v AG23was a civil suit brought againsta policeman and the State for gunshot injuries that the plaintiffsuffered during his apprehension. Wolfe, J24found that the plaintiffhad been unarmed and considered the authorities on the use of force:“What degree of force then was the officer entitled to use inapprehending the plaintiff ‘a mere’ escaping felon? The age-old testmust be applied, to wit, ‘reasonable force’.In 1879, the Report of the Criminal Code Bill Commissionstated:‘We take one great principle of common law to be, that though itsanctions the defence of a man’s person, liberty and property againstillegal violence, and permits the use of force to prevent crimes, topreserve public peace and to bring offenders to justice, yet all this issubject to the restriction that the force used is necessary; that is, thatthe mischief sought to be prevented could not be prevented by a lessviolent means; and that the mischief done by, or which mightreasonably be anticipated from the force used is notdisproportioned to the injury or mischief which it is intendedto prevent.’”Consistently, McKain, J25reminded that a constable in determiningwhether to use force in apprehending a suspect “ought not to proceedwithout reasonable necessity, and the public has to be considered ifReasonable suspicion is a relatively low testnormally employed to justify an arrest; it is noteven enough to have someone charged with anoffence. Suspicion is prone to error but, as atest for arrest, the mischief of misplacedsuspicion causing a loss of liberty pales whencompared to loss of life.
he proposes to discharge a firearm where other persons than a fugitivemay be located.”These two (2) Jamaican first instance civil judgments demonstraterecognition of the principles of proportionality. George Finn, inrelying on the English Criminal Code Bill Commission’s Report,accepts that sometimes the end of apprehending the fugitive felonmay not justify the use of deadly force, even where there is no lessviolent means to achieve that end.The arresting officer must consider the risk of harm to otherpersons when determining whether to use deadly force to apprehenda suspect. As noted in Clegg this consideration would be merely oneconsideration for the question of proportionality.In the 22nd edition of Harris’ Criminal Law, it was noted thatthe 18th century approach harkened to a time when all felonies werecapital and there were no organised police forces. It was urged that“in modern times the test of what is reasonable must restrict verymuch” the force permissible to apprehend a fleeing felon and that theold cases were to be read subject to this reservation26. It is not clearhowever how much of this modern thinking has authoritative force.Smith and Hogan assert that the question of proportionality mustbe added to the old common law considerations27. They rely on theReport of the Criminal Code Bill Commission extracted aboveand note that although it was not uttered from the bench, the reportwas the work of the leading jurists of the day28and was later cited byone of them in his directions to the jury. Having so concluded thelearned authors give answer to their hypothetical case of thefleet-footed handkerchief thief described earlier thus: “The escapeof a thief who had stolen a handkerchief, though a “mischief ”, issurely incomparably less the killing of the same man. If a murdereris shot down the matter is more open to argument.”29In the most recent Jamaican Court of Appeal case30Archbold’s35th edition retelling of the 18th century approach was relied on, butwithout any reference to considerations of proportionality. UnlikeAstley Ricketts, the proviso was considered but no reasons wereadvanced as to why it was not applied.Even this most recent case may be a legal antiquity as it wasexpressly based on a constitutional provision that has since beenrepealed and decided at a time when the old common lawprinciples were free from the scrutiny of the Constitution’s humanrights principles.DEVELOPMENTS IN ENGLANDWith the abolition of the distinction between felonies andmisdemeanours in England and Wales, their Parliament enactedlegislation to deal with the use of force in arresting a suspect. Section3 of the Criminal Law Act 1967 replaced the common law rulesthus:“3(1) A person may use such force as is reasonable in thecircumstances in the prevention of crime, or in effecting or assistingin the lawful arrest of offenders or suspected offenders or of personsunlawfully at large.”The issue was clarified in 2008 by Section 76 of the CriminalJustice and Immigration Act which provides that:(3) The question whether the degree of force used by D wasreasonable in the circumstances is to be decided by reference to thecircumstances as D believed them to be, and subsections (4) to (8)also apply in connection with deciding that question.(4) If D claims to have held a particular belief as regards theexistence of any circumstances –(a) the reasonableness or otherwise of that belief is relevant to thequestion whether D genuinely held it; but(b) if it is determined that D did genuinely hold it, D is entitled torely on it for the purposes of subsection (3), whether or not -(i) it was mistaken, or(ii) (if it was mistaken) the mistake was a reasonable one to havemade.(5) But subsection (4)(b) does not enable D to rely on any mistakenbelief attributable to intoxication that was voluntarily induced.(6) The degree of force used by D is not to be regarded as havingbeen reasonable in the circumstances as D believed them to be if itwas disproportionate in those circumstances.(7) In deciding the question mentioned in subsection (3) thefollowing considerations are to be taken into account (so far asrelevant in the circumstances of the case) -(a) that a person acting for a legitimate purpose may not be ableto weigh to a nicety the exact measure of any necessary action; and(b) that evidence of a persons having only done what the personhonestly and instinctively thought was necessary for a legitimatepurpose constitutes strong evidence that only reasonable action wastaken by that person for that purpose.(8) Subsection (7) is not to be read as preventing other mattersfrom being taken into account where they are relevant to deciding thequestion mentioned in subsection (3).(9) This section is intended to clarify the operation of the existingdefences mentioned in subsection (2).(10) In this section -(a) "legitimate purpose" means -(i) the purpose of self-defence under the common law; or(ii) the prevention of crime or effecting or assisting in thelawful arrest of persons mentioned in the provisionsreferred to in subsection (2)(b).In this clarification the influences of two (2) Jamaican Privy Councildecisions - Solomon Beckford31and Palmer v R32- are quiteapparent and the law on the use of force in self-defence and affecting12“The escape of a thief who had stolen ahandkerchief, though a “mischief”, is surelyincomparably less the killing of the same man.If a murderer is shot down the matter is moreopen to argument.”Searching for truth, striving for justice
an arrest remain analogous. Most importantly, the 2008 clarification,having been promulgated to reflect “right to life” principles, requiresthat the taking of life be a proportionate infringement.THE RIGHT TO LIFEIn Glenroy McDermott33the Jamaican Court of Appeal, inoverturning a conviction, considered the common law principles ofthe fleeing felon and Section 14 (2)(b) of the Constitution whichprovided that:“14(2) Without prejudice to any liability for a contravention of anyother law with respect to the use of force in such cases as arehereinafter mentioned, a person shall not be regarded as having beendeprived of his life in contravention of this Section if he dies as theresult of this use of force to such extent as is reasonably justifiable inthe circumstances of the case-(b) in order to effect a lawful arrest or to prevent the escapeof a person lawfully detained;”The Charter of Fundamental Rights and Freedoms(Constitutional Amendment) Act, 2011 repealed this provision,along with the entire Chapter of human rights provisions in theIndependence Constitution and replaced it with a new regime. Theright to life continues to be recognised but without any specifiedexception for the use of deadly force in effecting an arrest. The onlyspecified exceptions being to carry out a sentence of the court.34Unlike in England, there is no Jamaican statutory provisionjustifying the use of deadly force to apprehend a suspect. A Jamaicanconstable would therefore have to seek to rely on the common lawprinciple of the fleeing felon.All of the rights in the Charter are subject to general exceptions.Thus, Parliament may pass laws, and the agents of the State may actin a manner that abrogates, abridges, or infringes these rights if thisis “demonstrably justified in a free and democratic society”.35Where the repealed chapter had generally preserved existing lawfrom being declared unconstitutional,36the new provisions onlypreserve existing laws as to lawful punishment,37sexual offences,obscene publications, and the life of the unborn.38The newprovisions are applicable to all laws and bind the legislature39even ifthere is a two-thirds majority in Parliament.40The supremacy of the Constitution is thus secured. The right tolife is one of the fundamental rights which must be strictly construedand may prevail over other guaranteed rights.41The formulation, “demonstrably justified in a free and democraticsociety”, can also be found in the Canadian Charter of Rights andthat country’s highest court has ruled42that this means that:a) the objective must be sufficiently important to warrant overridinga protected right;b) the means to secure the objective must be reasonable andjustifiable in that they are proportionate and appropriate. They mustbe carefully designed and rationally connected to the objective.The treatment is consistent with Strasbourg jurisprudence whichprovides that in deciding whether deprivation of life is proportionateregard must be had to the nature of the aim pursued, the inherentdangers, and the degree of risk to life by the force employed.43CONFLICT BETWEEN RIGHT TO LIFE ANDFLEEING FELON PRINCIPLEThe United States Supreme Court in Tennessee v Garner (1985)471 US 1 ruled that it was disproportionate to permit the use ofdeliberate deadly force to apprehend a suspect who poses noimmediate threat to the police officer or other persons. The majorityagreed that it was “not better that all felony suspects die than theyescape”.44In reaching this decision the court ruled that the argumentsfor the common law principle were anachronistic and unsuited forthe current time of police forces with modern means of detectionand effective tools of destruction. Further the distinction betweenfelonies and misdemeanours was held to be arbitrary as somemisdemeanours concerned more violent offending thansome felonies.Consistent with this decision is Re State v Walters et ux, ex parteMinister of Safety and Security  1 LRC 493 by theConstitutional Court of South Africa. The Court considered a lawthat justified homicides of a fleeing arrestee where there was no othermeans to apprehend him against the constitutional provision that theright to life cannot be infringed unless “reasonably justifiable in anopen and democratic society”. The Court approached the matter byweighing the nature and importance of the right against theimportance and purpose of the law. Limitation of the right to life,they opined, must come from a very compelling public interest. Thepublic interest recognised was to protect society from suspects fleeingbut infringing the right for such an interest could only beconstitutional where the offence was serious and the suspect a dangerto the arrester or the society at large. They considered it a “glaringdisproportion in depriving an unarmed fleeing criminal of life merelyin order to effect an arrest there and then”.Their decision modified a law that had permitted the use of deadlyforce for a wide array of offences, some of them without violence,to be applicable only where there are reasonable grounds to suspectthat:a) the arrestee posed an imminent threat of serious bodily harm;orb) the suspect had committed a crime involving the inflicting, orthreat of inflicting, serious bodily harm.Whilst these decisions would only be persuasive to a Jamaican court13Searching for truth, striving for justiceUnlike in England, there is no Jamaicanstatutory provision justifying the use of deadlyforce to apprehend a suspect. A Jamaicanconstable would therefore have to seek to relyon the common law principle of the fleeingfelon.
14Searching for truth, striving for justicethere is sufficient legal and contextual similarity to expect that theywould be seriously considered by our courts. Further the thinkingbehind them is consistent with the well-settled principles ofproportionality. In this regard the Privy Council’s opinions on themandatory death penalty are analogous. In Lambert Watson v R45the Board considered the mandatory death penalty against theConstitution’s protection of the right to life and prohibition ofinhumane treatment. They were able to do so because the lawproviding for capital punishment for some murders waspost-independence and not saved by the existing law clause. The lawwas held to be a disproportionate infringement given its arbitrariness.In doing so, the Privy Council considered the modern internationaljurisprudence.CONCLUSIONIt is the Commission’s respectful view that the Courts will hold thatthe common law principles on the use of deadly force to apprehenda fleeing felon are uncertain and incompatible with the Charter ofFundamental Rights.The weapons of modern police forces bring a significantly highrisk that life will be taken. This is a significant change from the era ofdisorganised police forces with rudimentary weaponry when thecommon law rule was hatched. That the suspected offencescategorisation as a felony or a misdemeanor should be determinativeis arbitrary and that deadly force can ever be employed on anon-violent suspect who poses no threat of physical harm to anyoneseems disproportionate.By this reasoning it is doubtful that the evidence in AstleyRicketts, if argued today, would pass the threshold for the jury toconsider whether there was justification to use deadly force. Thedeceased, in that case, was not an immediate physical threat to anyoneand there was no suspicion that he had caused serious harm toanyone.In the current state of affairs a constable would be wise to betentative in using force to effect a lawful arrest as the common lawjustification of using force to apprehend a fleeing felon now seemssubject to limitation. Yet if he fails to use deadly force when lawfuland necessary and the fleeing suspect inflicts harm on a bystander,the constable may be liable for neglecting his duty and infringing theright to life of the bystander.46This is an unfair state of affairs forthe police to work in.This important issue requires clarity to ensure that a constable, ora member of the public, once the hue and cry is raised, may be fullyaware of the limits circumscribing their use of force in arresting asuspect.The current JCF Use of Force Policy recognises the need forproportionality in the application of deadly force so it would seemthat operational activities of the force will not be affected by thechanges in the law brought by the Charter of Fundamental Rights:“The use of force by members of the JCF must accord with theprinciples of proportionality (i.e. the anticipated injury or harm to beprevented is equal to or greater than the harm which is likely to becaused by the use of force and that the objective cannot be achievedby a lesser degree of force). In no case should the use of force, whichis disproportionate to the legitimate objective to be achieved, be usedor authorised.”47The Commission therefore submits this issue for the considerationof Parliament and suggests that a statutory provision be enactedwhich will justify the use of potentially deadly force to arrest in thefollowing circumstances:a) where the arresting person has reasonable suspicion that thearrestee has committed a serious offence involving the threat orinfliction of serious bodily harm to another;b) the use of potentially deadly force was proportionate and theonly reasonably possible way to apprehend the suspect; andc) there were reasonable grounds to suspect that the arresteepresented an immediate threat of serious bodily harm to the arrestoror another person. n“not better that all felony suspects die than theyescape.”It is the Commission’s respectful view that theCourts will hold that the common law principles onthe use of deadly force to apprehend a fleeing felonare uncertain and incompatible with the Charter ofFundamental Rights.
COMMISSIONER OF POLICE1. The Commission humbly refers as recommendations for action(pursuant to s. 17(9) and 23 of the Independent Commission ofInvestigations Act) that the Commissioner of Police issue orderswithin sixty (60) days that:a. Mandate that officers, sub-officers, and constables of the JCFand its auxiliaries involved in, or present at an incident involving theuse of force which results in the death, injury, or sexual assault of aperson (hereinafter described as “members”) be immediately availablefor enquiries by the Commission’s investigators by remaining at thescene, a nearby police station, or at some other place communicatedto the Commission’s investigators by way of a call to theCommission’s toll-free numbers (1-888-991-5555 or 1-888-935-5550.These orders shall subsist except where:i) a person is injured and has to be rushed by a member tothe hospital;ii) the member is injured, in which event, the Commission’sinvestigators are to be immediately advised as to the placewhere the member is receiving treatment; oriii) the member is in pursuit of suspects or is engaged inurgent operational activities in which event the membersmust be available to the Commission’s investigatorsimmediately after these activities are complete.b. Prohibit members from conferring about an incident before giv-ing their accounts to the Commission and requiring that where cir-cumstances have exceptionally necessitated conferring, this be notedand fully disclosed to the Commission. This recommendation doesnot prohibit:i) Communications during the continuation of anoperation to further the legitimate aims of theoperation.ii) Reports made up the chain of command, butthe fact that such a report has not yet been madecannot excuse a member from an obligation to givean account to the Commission.c. Require members to separate or to be separated as soon as isreasonably possible after an incident until they have given theiraccount of an incident to the Commission.d. Mandate that Administrative Review panels seek the input ofthe Commission’s Director of Complaints in charge of theinvestigation as to whether a member is under suspicion of unlawfullyusing force or has failed to comply with a request made pursuant toSection 21 of the Independent Commission of Investigations Actbefore that member is returned to operational duties outside of thestation.e. Mandate that a member under suspicion of unlawfully usingforce not be given operational duties outside of the station while thematter is under investigation, or pending trial.CHIEF OF DEFENCE STAFF2. The Commission humbly refers as recommendations for action(pursuant to s. 17(9) and 23 of the Independent Commission ofInvestigations Act) that the Chief of Defence Staff issue orderswithin sixty (60) days that:a. Mandate that officers, warrant officers, non-commis-sioned officers and soldiers of the JDF involved in, orpresent at an incident involving the use of force whichresults in the death, injury, or sexual assault of a person(hereinafter described as “members”) be immediatelyavailable for enquiries by the Commission’s investigators byremaining at the scene, a nearby police station, a nearby JDFfacility or at some other place communicated to theCommission’s investigators by way of a call to theCommission’s toll-free numbers (1-888-991-5555 or1-888-935-5550). These orders shall subsist except where:i) a person is injured and has to be rushed by amember to the hospital;ii) the member is injured, in which event, theCommission’s investigators are to be immediatelyadvised as to the place where the member isreceiving treatment; oriii) the member is in pursuit of suspects or isengaged in urgent operational activities in whichevent the members must be available to theCommission’s investigators immediately afterthese activities are complete.b. Prohibit members from conferring about an incident beforegiving their accounts to the Commission and requiring that wherecircumstances have exceptionally necessitated conferring, this benoted and fully disclosed to the Commission. This recommendationdoes not prohibit:Recommendations15Searching for truth, striving for justiceIn these recommendations, “incident” has the same meaning given in Section 2 of the Independent Commission ofInvestigations Act.
16Searching for truth, striving for justicei) Communications during the continuation of anoperation to further the legitimate aims of theoperation.ii) Reports made up the chain of command, butthe fact that such a report has not yet been madecannot excuse a member from an obligation to givean account to the Commission.c. Require members to separate or to be separated as soon as isreasonably possibly after an incident until they have given theiraccount of an incident to the Commission.d. Mandate that the advice of the Commission’s Director ofComplaints in charge of the investigation be sought as to whether amember is under suspicion of unlawfully using force or has failed tocomply with a request made pursuant to Section 21 of theIndependent Commission of Investigations Act before that memberis returned to operational duties outside of a JDF facility.e. Mandate that a member under suspicion of unlawfully usingforce not be given operational duties outside of a JDF facility whilethe matter is under investigation, or pending trial.COMMISSIONER OFCORRECTIONS3. The Commission humbly refers as a recommendation for action(pursuant to s. 17(9) and 23 of the Independent Commission ofInvestigations Act) that the Commissioner of Corrections issue orderswithin sixty (60) days that:a. Mandate that Department of Corrections personnelinvolved in, or present at an incident involving the use offorce which results in the death, injury, or sexual assault ofa person (hereinafter described as “members”) beimmediately available for enquiries by the Commission’sinvestigators by remaining at the scene, a nearby policestation, a nearby Department of Corrections facility or atsome other place communicated to the Commission’sinvestigators by way of a call to the Commission’s toll-freenumbers (1-888-991-5555 or 1-888-935-5550). These ordersshall subsist except where:i) a person is injured and has to be rushed by amember to the hospital;ii) the member is injured, in which event, theCommission’s investigators are to be immediatelyadvised as to the place where the member isreceiving treatment; oriii) the member is engaged in urgent operationalactivities in which event the member must beavailable to the Commission’s investigatorsimmediately after these activities are complete.b. Prohibit members from conferring about an incident beforegiving their accounts to the Commission and requiring that wherecircumstances have exceptionally necessitated conferring, this benoted and fully disclosed to the Commission. This recommendationdoes not prohibit:i) Communications during the continuation of anoperation to further the legitimate aims of theoperation.ii) Reports made up the chain of command, butthe fact that such a report has not yet been madecannot excuse a member from an obligation to givean account to the Commission.c. Require members to separate or to be separated as soon as isreasonably possible after an incident until they have given theiraccount of an incident to the Commission.d. Mandate that the advice of the Commission’s Director ofComplaints in charge of the investigation be sought as to whether amember is under suspicion of unlawfully using force or has failed tocomply with a request made pursuant to Section 21 of theIndependent Commission of Investigations Act before that memberis returned to operational duties at the institution where the incidentoccurred.e. Mandate that a member under suspicion of unlawfully usingforce not be given operational duties at the institution where theincident occurred, while the matter is under investigation, or pendingtrial.LAW REFORM4. As it relates to the law on the use of force in effecting an arrestthe Commission humbly recommends to the Honourable Minister ofJustice that Parliament consider such steps as are necessary andappropriate which will restrict the use of deadly force in this regardto circumstances where:a. the arresting officer has reasonable suspicion that the arresteehas committed a serious offence which involves the threat or inflictionof serious bodily harm to another;b. the use of force was proportionate and the only reasonablepossible way to apprehend a fleeing suspect; andc. there were reasonable grounds to suspect that the arresteepresented an immediate threat of serious bodily harm to the arrestoror another.n
Reference Notes1. Paragraphs 35-35 and 141-1432. Principle 223. Page 484. Demanding Accountability, 7.5. R (on the application of Tucker) v.IPCC  EWHC2372 (Admin)paragraphs 38 and 39.6. 3rd Edition 2011.7. Cetin v. Turkey  ECHR 19180/03at paragraph 41.8. 2 M. Hale, Historia Placitorum Cornae85 (1736)9. Russell on Crime 12th Edition. Vol. 1Pg. 444 and footnote 24 referencing 1Hale 481, 4 BI. Comm and Fost 271.10. R v. Astley Ricketts (1987) 24 JLR 411.11. Smith and Hogan, Criminal Law FirstEdition Page 23112. Shaaban Bin Hussein v Chong FookKam  AC 94213. O’Hara v. Chief Constable of theUlster Constabulary  AC 286 andAG v. Danhai Williams 51 WIR 26414. (1850) 14 JP 754.15. Parker v. Chief Constable ofHampshire [1990 ALLER 676 (D)16. Christie v. Leachinsky  AC 57317. Taylor v. Chief Constable of ThameValley Police  3 ALLER 50318. Abassy v. Commissioner of Police ofthe Metropolis  1 ALLER 19319. (1990) 27 JLR 45320. Section 14 (3), Judicature (AppellateJurisdiction) Act which provides that aconviction can stand despite an errorwhere it is clear that there is no substantialmiscarriage of justice.21. (1995) 1 AC 48222. In a trial without jury23. 1981) 18 JLR 12024. As he then was25. Joseph Andrews v. AG (1981) 18 JLR43426. Page 12827. First Edition, page 23128. Lord Blackburn and, Stephen, Lush,and Barry JJ.29. Page 23130. Glenroy Mc Dermott delievered 14thMarch 200831.  AC 13032.  AC 81433. SCCS 38/2006 delivered March 14,2008.34. 13 (3)35. 13 (2)36. Former s26(8)37. 13 (7)38. 13 (12)39. 13 (4)40. Charter of Rights Act s. 3 repeals s.50of the Constitution41. X v Federal Republic of Germany(1971) 39 CD 9942. Oakes (1986) 1 SCR 103 and R v.Edwards Books and Art (1986) 2 SCR 71343. Halsbury’s Laws of England Vol. 8 (2)paragraph 12344. Page 4445.  UKPC 34 following Reyes v. R UKPC 1146. Van Colle v. Chief ConstableHertfordshire  EWCA Civ 32547. JCF Use of Force Policy, paragraph 14Searching for truth, striving for justice17
PART TWO:DEATH OF THE MENTALLY ILLWHEN INCONFRONTATIONWITH SECURITY FORCESSearching for truth, striving for justice
19Searching for truth, striving for justiceChapter 4: Death of the mentally ill when inconfrontation with members of the security forcesIn 2011, six (6) persons were killed by thepolice who were believed to be mentallyill. In none of these cases did the policeemploy any special measures to handlematters of this type.For the purpose of this report, theinvestigative team went back to 2005 whereseven (7) other deaths occurred andexamined the period of 2005-2012.SITUATION IN SOUTHBORO, ST.CATHERINEIn 2011, for example, the police respondedto a situation in Southboro, St. Catherine,involving a man and his wife. The man wasdiagnosed as mentally ill.It was explained to the police that the manwas mentally ill, however, he was shot bypolice after they arrived to give assistance tohis wife.It was cases such as this one that promptedthe Commission to launch a specialinvestigation into deaths of the mentally illwho came in confrontation with the police.It must be clearly stated that not all thementally ill persons who came intoconfrontation with the police were killed.Others were shot and injured. This will beborne out in the various case studies.1. To determine the circumstancessurrounding individually reported cases ofdeath of mentally challenged personsresulting from confrontations with the police;2. Determine whether or not there arereasons to suspect that any person iscriminally culpable for the death;3. To determine whether or not there wereindividual or systemic breaches of the rightto life;4. To make recommendations for futureactions to include non-lethal weapons thatcan be used by the police.Background of Investigation and Terms of ReferenceTERMS OF REFERENCEMENTALLY ILL - DMBackgroundDM lived with his mother and three siblings.He is a high school dropout who engages infarming as a source of income. The family ispoor, and there is no father present in thehousehold. DM was injured while in thecustody of the police in January 2012. He wastaken into custody under the Mental HealthAct after he allegedly killed an animal anddrank its blood.According to family members, DM had beenusing marijuana from as early as the age ofthirteen. They feel that the smoking triggeredhis mental illness.He was admitted to the Port AntonioHospital on two separate occasions, in 2011and 2012, where he was diagnosed as suffer-ing from schizophrenia.Community Mental Health ServicesAfter his discharge from hospital he wasreferred to a health centre in a nearbycommunity for treatment on a monthly basis.WITNESS ACCOUNTAfter DM was taken into custody, especiallyin the nights, he made strange canine sounds,to the extent that other inmates were afraid.At times he shouted out that he wanted bloodof various animals to drink. Two days afterbeing in custody the prisoners were allowedto refresh themselves. When he was told toreturn to his cell, he and the Cell Guard gotinto a tussle and eventually several officersfrom different areas had to come and assist.During the tussle, DM hit his head against awall causing it to bleed. When this happened,he licked the blood that was running down hisface and off the grill and he became calmthereafter. The police handcuffed him andwhen asked what he wanted he again askedfor more blood to drink. The police told himthey were going to take him to the doctor andshortly after they left with him.After being admitted on the ward DMabsconded and returned home. Attempts hadto be made again to get him back to thehospital.INVESTIGATOR’S FINDINGS:1. The police acted in accordance withJamaica Constabulary Force Orders datedOctober 21, 2004, Serial No. 2994 which wasre-published in the February 16, 2012 ForceOrders, Serial No. 3374 (See Legal Framework- Jamaica).2. Arrangements were made for him to beseen by a psychiatrist at the earliest possibletime and he was taken to hospital wheninjured.3. The police provided social support andtook the necessary action to ensure thesecurity and safety of all parties involved.Case Studies and Findings
20Searching for truth, striving for justiceMENTALLY ILL - DCBackground informationDC, who is from the parish of St. Ann,experienced episodes of illness, but as long ashe took his medication he was okay. Based oninformation received, he was usually armedwith one or more knives or machetes. DC livedabroad for a while and upon his return hebegan acting strangely.DC was previously admitted in the St. Ann’sBay Hospital for treatment prior to the incidentat which time his mental condition wasdiagnosed.He had been a patient of the St. Ann’s BayPsychiatric Department for approximatelyseven (7) years and was receiving treatment ata community hospital once per month.WITNESS ACCOUNTOn May 18, 2011, DC was reportedly ill anda mental health team consisting of a psychiatricnurse and psychiatric aides went out toapprehend him for treatment. The police wascalled to render assistance as DC was allegedlyarmed with two machetes.During the confrontation, DC reportedlyattacked the police with the machetes; heattempted to chop one of the policemen whofired warning shots in the air to scare him off.When this happened, DC ran away from thepolice and towards a resident and beganchopping at his neck; however, this person waswounded on the shoulder. The residentmanaged to push off DC and took coverbehind the service vehicle.The police began firing and he noticed thatDC had gotten shot in his leg. The police thendisarmed DC and handcuffed him, placed himin the police service vehicle and drove away inthe direction of possibly a health facility.THE SECURITY FORCE’SACCOUNTThe police received a call from personnel atthe St. Ann’s Bay Psychiatric Department toassist in apprehending a mentally ill man whohad become violent. A team consisting ofabout four (4) police officers met with six (6)psychiatric aides and one (1) mental healthnurse and the most senior police officer (anInspector) briefed them. They left in search ofthe man and when he was spotted he wasapproached and asked to drop his weapon. DCrefused to comply and instead put his hands inthe air and told the police to shoot him. Hethen took off chopping at two cars to includethe service vehicle.Thereafter he attacked the Inspector who hadbeen telling him to drop his weapons DC wasshot as a result. He took off again this timechopping a citizen who was in the crowd ofon-lookers. He was again shot by the seniorofficer, disarmed and then rushed to the St.Ann’s Bay Hospital where he was admitted fortreatment.The Inspector who was also injured wastreated and released. DC was later charged withtwo (2) counts of Unlawful Wounding and two(2) counts of Possession of an OffensiveWeapon. The matter went before the courtsand DC was freed of the charges based on hismental status.INVESTIGATOR’S FINDINGS:1. The police acted in accordance withJamaica Constabulary Force Orders datedOctober 21, 2004, Serial No. 2994 which wasre-published in the February 16, 2012 ForceOrders, Serial No. 3374 (See Legal Framework- Jamaica).2. He was quickly taken for treatment at amedical facility.3. The police used the necessary force to getthe situation under control.4. The police took the necessary action toensure the security and safety of all parties.DC TodayToday, DC has improved with treatment on amonthly basis at a community-based clinic
21Searching for truth, striving for justiceMENTALLY ILL - LWBackgroundLW was from the parish of St. Catherine,married and lived with his wife andstep-daughter. He was self-employed andsuffered from a mental illness, a condition thatnot many persons who interacted with himwere aware of up until the time of his death.LW had been suffering from mental illnessfor a while. According to family members, LWhad been using marijuana and had stoppedtaking his medication whenever he felt better.He was admitted at Bellevue Hospital forsome time where he received treatment andwas diagnosed as having cannabis-inducedschizophrenia.After his discharge from Bellevue he wasreferred to a health centre in a neighbouringcommunity for treatment. He was not alwayscompliant with appointments at the healthfacilities or with taking his medication.WITNESS ACCOUNTLW was throwing out items from his housewhen his family and friends pleaded with himto stop. They knew that he was not well and sothey tried to convince him to allow them totake him to hospital. LW insisted that he was‘cleaning’ the house and would not allow any-one to take him to hospital. The police wascalled by his wife who told them of his mentalillness and asked for help in taking him to thehospital.The wife warned the Corporal and aConstable who had responded of LW’s mentalillness and the help that was required. Whenthey arrived, LW was still cleaning the housewith a knife in hand. The policemen enteredthe house and LW was immediately instructedto drop the knife; he refused saying he was notinterfering with anyone. Shortly after,explosions were heard.One of the policemen was seen walkingbackwards towards the front door, still firingat LW, but he fell at the threshold of the frontdoor.He continued firing at LW who walked pasthim, went through the front gate, saidsomething and fell to the ground shortly after.LW was assisted by his wife and citizens whorushed him to the Spanish Town Hospitalwhere he succumbed to his injuries thefollowing day.THE SECURITY FORCE’SACCOUNTOn the day in question they were on patrolduty in the area when they responded to a 119request concerning a dispute at the residence.Upon arrival a man not known to them wasseen, saying he was cleansing the house ofspirits. LW had a knife in his hand and was toldrepeatedly to put down the knife. LW thenturned and advanced towards the police withthe knife in his hand now raised. Thepoliceman took out the pepper spray and usedit on LW who used a door mat to block thepepper spray.The officer then used his extendable batonand attempted to strike him, but LW againblocked it off with the mat. The baton fellfrom his hand and he used the pepper sprayagain on LW, some of which caught him in theeye. The policeman began walking backwardsout of the house and LW stabbed at himsaying, “Mi mus kill one a oonu today”. LWcontinued advancing with the knife and so thepoliceman pulled his firearm fired a few shotswhile doing so. The policeman stated that hethen tripped and landed on his back. LWcontinued coming at him with the knife in hishand and was stabbing at him. LW fell on topof him and he used his hand to prevent LWfrom injuring him or killing him. He said hethen fired a few more rounds and LW fell ontop of him and the knife then fell from hishands. He said LW then got up and walkedaway saying, “man a lion oonu nuh see oonucaan kill me”. LW walked away and then fell.INVESTIGATOR’S FINDINGS:In the case of LW, the police knew ahead oftime that he was mentally ill. This wascommunicated to them by members of thecommunity and the wife of the now deceased.When he was shot by the police, on the witnessaccount he posed no threat, at that time, tocitizens.The police did not allow for time to assist inresolving the situation. The police’s expectationof LW, a mentally ill person, was unrealistic, inthat they expected to give an order and havehim comply immediately.Based on information received during theinvestigation. LW was known to the policeprior to this date as he sells in close proximityto the police station. Furthermore, severalcitizens speak to the fact that upon arrival, thepolice greeted Mr. Wray by name.The police based on their training have beentaught to:“Take your time. Don’t rush anything. Unlessthe person is acting in a manner which isendangering himself or herself or someoneelse, try to learn something about the personbefore deciding what to do. The more calmlyyou act, the more calmly the other person willact.”“Don’t try to order them around. It will notwork.Do not restrain the person unless it isabsolutely necessary. The restraint will causethe person to become even more upset.”For the person who is diagnosed as schizo-phrenic the training manual suggests that thisperson should be “treated in an unhurried,calm, non-authoritative manner, contact can bemade and the person will comply (even thoughthe person may not outwardly respond)”.Moreover the training manual states absolutelyclear:“DO NOT BECOME ANGRY ORIMPATIENT WHEN THEY SEEM TO BEIGNORING YOU, THEY ARELISTENING”
22Searching for truth, striving for justiceJamaica’s recognition of the right to lifedemands that the agents of the State mustnot unjustifiably take a life and must takeappropriate steps to safeguard life (Constitutions. 13). To safeguard life and property, membersof the JCF are duty bound to intervene topreserve the peace, detect crime and apprehendsuspects (Constabulary Force Act s. 13). Aconstable may take custody of a person whoseems to be mentally disordered “wandering atlarge”, whether or not that person has committedan offence or threatened to breach the peace(Mental Health Act s. 15).COMPULSORY ADMISSIONSection 6 of the Mental Health Act, 1999,states:(1) Subject to the following provisions of thissection and section 7, a patient may be admittedto and detained in a psychiatric facility pursuantto an application for admission made on thegrounds that the patient:(a) is suffering from mental disorder of a natureof degree which warrants his detention in apsychiatric facility for observation or treatment,or both; and(b) ought to be so detained in the interest of hisown health and safety or of the protection ofother persons.Section 8 (1) In any case of urgent necessity, anemergency application for the admission of apatient may be made by a relative of the patient,a prescribed person or constable and suchapplication:(a) shall contain a statement that it is of urgentnecessity for the patient to be admitted anddetained under section 6 and that compliancewith the provisions of this Part relating toapplications for admission for observation andtreatment would involve undesirable delay; and(b) shall be accompanied by a medical certificateas mentioned in subsection (2).POWERS OF A CONSTABLE15 (2) where an offence is committed by aperson who appears to a constable on reasonablegrounds to be mentally disordered, the constable(a) may charge that person for the offence andbring him before a Resident Magistrate at theearliest opportunity, being not more than aperiod of five days after the date on which theoffence is committed; and(b) may, where it is necessary, to detain the per-son until he is brought before the Resident Mag-istrate, detain him in a lock-up, remand centre ora place suitable for the detention of mentally dis-ordered persons; and(c) shall, where the person is charged underparagraph (a) or detained under paragraph (b),make a report in writing to a prescribed personwithin twenty-four hours of such charge ordetention.Dealing with someone of impaired reason maypresent a challenge to the constable seeking toapprehend him. The mentally disordered personmay be a danger to himself, the constable andpersons nearby. Conventional methods of pacificsettlement may be unsuitable. It is foreseeablethat the use or threat of force, in theconventional manner may quickly escalate theincident towards a fatal outcome. Despite theseparticular difficulties it must be remembered thatthe mentally disordered person is deserving ofall of the protections that flow from the right tolife.The ordinary legal principles of justification willapply where a mentally disordered person isdeliberately killed by a constable purporting to beoperating on the honest belief that this wasreasonably necessary to preserve the life of theconstable or another person. Even in cases wherethe killing may be justified by this measure theentire circumstances must be scrutinised.The State must appreciate that mentally illpersons are particularly vulnerable and may causeinjury to others and themselves. Safeguarding lifeextends to protecting vulnerable persons fromtheir own self-destructive conduct by takingoperational measures to reduce the risk of death(R(L a patient) v Secretary of State forJustice  AC 588).Where a constable kills someone of unsoundmind it is important to consider whether theofficer so mismanaged the situation that hesignificantly contributed to the circumstancesthat led to the loss of life. In such circumstancesliability for manslaughter or the tort ofnegligence must be entertained. Since the Houseof Lords decision in Adomako  1 AC 171there has been greater congruence between thetort of negligence and the crime of manslaughtercommitted by gross negligence. In both the courtwill consider whether the constable owed a dutyof care to the person of unsound mind, whetherhe failed in the performance of that duty, andwhether such failure caused the death. Formanslaughter, however, the degree of negligencemust be gross such that a reasonable personwould have perceived a real and obvious risk ofdeath.A police officer is not immune from liability foran operational decision taken, as opposed to aninvestigative one, as such susceptibility does notcompromise the public interest that he performhis duties to suppress and investigate crime(Chief Constable of Hertfordshire Police v.Van Colle  UKHL 50). The physical ac-tion of apprehending a suspect is an operational,as opposed to investigative action (Crowley vCommonwealth of Australia,  ACTSC89 (27 May 2011)).When a policeman intervenes in a situationinvolving a mentally ill person, he must take carenot to make it worse. Once a police officer takescontrol - or attempts to take control - of asituation by exercising his authority, he owes aduty of care to anyone caught up in that exerciseof authority, including the person whose actionsmight have caused the officer’s intervention inthe first place (R (on the application of Cash)v. County of Northamptonshire Coroner 4 AllER 903, Crowley v Common-wealth of Australia,  ACTSC 89 (27May 2011).In Zalewski v Turcarlo  2 VR 562, thecourt found liability for negligence where policeofficers responding to a report that a mentallydisturbed a young man was armed with a gun,shot and injured the young man. The court foundthat the policemen acted “impetuously, withoutdue inquiry and reflection and in disregard of po-lice instructions” and provoked a situation whichthey knew concerned a person suffering from apsychiatric condition.In such an action the defence of volenti nonfit injuria (i.e. that the victim consented to the riskof injury) would not avail where the deceasedhad been labouring under such psychologicalimpediments that his actions were not trulyvoluntary (Kirkham v Chief Constable ofGreater Manchester Constabulary  3AllER 246).IN SUMMARY:1. The police must train and instruct theirmembership on using force against mentallydisturbed persons.2. A police officer who kills a mentally disturbedperson may be liable for murder, if unjustified,or for manslaughter where the police operationwas mishandled.3. A police officer in the above circumstancesmay also be liable in the tort of negligence.nChapter 5: Legal Framework - Local LawThe State has an obligation to giveappropriate training, instructions andbriefing to its agents who may use force(Mc Cann, Savage and Farrell v UK 21EHRR 97). Article 2 of the UnitedNations Basic Principles on the Use ofForce and Forearms by LawEnforcement Officials requires thatgovernments and law enforcementagencies develop various means “asbroad as possible” and equip theappropriate officials with various types ofweapons and ammunition that wouldallow for a “differentiated use of force”.
23Searching for truth, striving for justiceChapter 6: De-Institutionalisation of the mentally illSituation Analysis - JamaicaMental health professionals are of theview that individuals who sufferfrom a mental illness would bebetter served if they are cared forat the community level with the requisite resources,than being kept in the various institutions (mentalor correctional).According to Dr. Wendel Abel, consultantpsychiatrist at the University of the West Indies,the mental health service records indicate that 16%of individuals seen in outpatients’ clinic arereferred from the Criminal Justice System (Abel,2009; Sewell, CA, Martin, JS, & Abel, WD, 2010).In Jamaica, in the earlier days, persons who wereconsidered “criminal lunatics” and found to beinsane at the time they committed the incidentwere housed at the Bellevue Hospital. Patientswith capital offences were detained indefinitely inthe maximum security forensic ward of BellevueHospital, (Sewell, CA, Martin, JS, & Abel, WD,2010).With the process of de-institutionalisation,however, much of the hospital’s populationmigrated from Bellevue and other communitiesinto the criminal justice system.FORENSIC PSYCHIATRIC SERVICESIn Jamaica forensic psychiatric services areoffered and these services include the provisionsfor the persons who are remanded in custody,admitted in hospital and those who would beconsidered high risk and must be treated on aconsistent basis. The latter may include thosepersons in a community who are known as “mad”persons and who, when they have an episode,behave boisterously and violently. The extent ofthe forensic psychiatric services that existspresently, however, appear to be concentrated inthe Kingston & St. Andrew region of the island.To that end, Dr Abel is of the view that givenwhat currently obtains in Jamaica, an integratedmodel of community forensic mental health isprobably the most efficient approach to managingthe mentally ill accused person. In the integratedmodel, he said, the community forensic mentalhealth staff will accept referrals from other mentalhealth services, as well as criminal justice services(Sewell, CA, Martin, JS, & Abel, WD, 2010).SCALING DOWN OF SERVICESOFFERED AT THE BELLEVUEHOSPITALIn the 1960s the Bellevue Hospital administration3100785Figure 1 shows that the population has reduced at Bellevue Hospital from seven hundred and eighty-five (785) to six hundred andtwenty-one (621) between 2003 and 2010. (Source: Ministry of Health)
24Searching for truth, striving for justicebegan scaling down some of the services offeredand as a consequence more and more patientshave been recommended to community healthcentres. The general belief is that when personswho are mentally ill are discharged to their familiesand are surrounded by people with whom they arefamiliar, this aids significantly in the recoveryprocess.According to the relative of one of the men whocame into confrontation with the police, afterbeing admitted in Bellevue for a couple months,he was transferred to a home where he stayed forabout 2 years. He was getting medical supervisionand he would be taken to clinic for his treatment,and he would be enclosed because he seemed tohave a craving for marijuana. “At the end of thetwo-year period, since I would normally visit himat the home, I felt that there were too many ‘madpeople’ around him and so he would only regress.And so I felt that I needed to get him out and gethim around ‘normal’ persons who could pull himup.”RELEASING THE MENTALLY ILLTO COMMUNITY HEALTH CAREWhile some persons have endorsed the releaseof their family members into their care, there areothers who have been disheartened by theprospect of having to take their loved ones homewith them because of lack of understanding insome cases and also because they felt it’s just toomuch for them to handle.Interviewees expressed that they were not trainedto take care of a mentally ill person, while othersmentioned that they were content with theirrelatives remaining in a mental health institutioneven when they are well enough to leave becausethey don’t have suitable accommodation for them.An interviewee was quoted as saying: “I did notwant [him] to come home out of Bellevue, eventhough he was well enough to leave, because I didnot have anywhere suitable for him. And thru isghetto mi neva too want him fi come back there.The day he left Bellevue, I cried. Mi not even signno paper. I was upset and crying….When we gothome, [he] was saying that I am a wicked womanbecause mi want him fi stay a Bellevue, mi nevawant him fi come home.”Many persons believe that Bellevue has thecapacity, in more ways than one, to keep theirrelatives from relapsing. It is generally understoodthat keeping an individual institutionalised who iswell enough to be discharged is not beneficial tothem. While mental health professionals areadvocating for persons to be released into the careof their families with follow-up treatment, thesocial support system has to be taken intoconsideration and must be strengthened tosupport such a decision.The social support system extends far beyondcommunity health care. With the pace at which theworld moves it is difficult for any one person totake care of a sick person. This is not only costly,but requires time, patience – for supervision – aswell as financial stability and commitment.THE TRANS-MIGRATION OF THEMENTALLY ILL TO THECORRECTIONAL SERVICESIn many of the cases reviewed, the mentally illperson did not have much social support, and asin the case highlighted previously, they oftentimesend up in the criminal justice system and some ofthem even die while in custody e.g. jails andsubsequently remand centres.Some of these persons are eventually migratedto the Correctional Services because they were notadequately monitored, they end up discontinuingtheir treatment plans, they relapse and are turnedout of their homes, or because during a fit ofaggression, they engage in criminal acts. Thus, it isclear that while there is a move to decentralise theinstitutionalisation of the mentally ill, carefulthought has to be given to their welfare afterrelease.Dr. Frederick Hickling, Professor of Psychiatryand Head, Section of Psychiatry, University of theWest Indies (Mona) stated that there is a methodcalled the DAPA system (diverted at the point ofarrest) that can be used to assist, the securityforces, in dealing with the mentally ill who aretaken into custody. “…People who commit minorcrimes, instead of being [locked] up and put in theprisons, they get treated by the primary carefacilities and within a couple of days, weeks, theyare well again and back in the society. This meansa lot of these people don’t end up in prison”.DE-INSTITUTIONALISATION OFTHE MENTALLY ILLThe Strategic Mental Health Plan 2009-2014prepared by Dr. Abel, the mentally ill individualslocated in the criminal justice system include:1. Individuals in police custody and in lock-upswho are awaiting trial2. Individuals who have been remanded incustody in prisons and sent back to the local lockup pending trial3. Individuals before the court for whompsychiatric evaluation is requested.nJCF POLICIES AND RESOURCESAccording to a report published in theJamaica Observer, dated Sunday, March 27,2011, entitled, “Deaths of mentally illassailants unfortunate” - JCF Chaplain -We’resorry, Assistant Commissioner of Police(ACP) Gary Welsh was quoted as saying:“the incidents were not to be interpreted to mean thepolice were not equipped to effectively restrain mentallyill persons. He noted that, to the contrary, eachmember of the JCF receives basic and in-servicetraining to that effect.“He stressed, however, that where the safety of thepoliceman is in jeopardy, steps will be taken to‘neutralise’ the threat. Officer safety is paramount forus.“We are trained to restrain mentally challengedpersons, but we will neutralise any threat using theforce necessary.”ACP Welsh was speaking to incidents wheretwo persons believed to be of unsound mindwere killed by the police.According to the Jamaica ConstabularyForce Orders dated October 21, 2004, (SerialNo. 2994) which was republished in the Feb-ruary 16, 2012 Force Orders, (Serial No.3374):1. When the police has been contacted, anda person is reported to be behaving in a waythat might suggest that they are mentally ill,the police should respond promptly, andspecial containment equipment eg. (handcuff)should be used to prevent the needfor lethal or inappropriate force.2. The individual should be taken immedi-ately to the nearest designated medical facilityfor proper medical/psychiatric evaluation.Chapter 34 of the Jamaica ConstabularyForce Standing Orders entitled PrisonerTransport – Policy and Procedure in SectionV (A)states:Security Forces’ Reality
Every member of the Force may, inself- defence against an attack on himself bya prisoner, use necessary and reasonable forceto restrain such prisoner as per Force Orders#2248 on “The Use of Force.” In the eventthat the prisoner is injured, thatmembers shall be responsible to ensurethat he is provided with medicalattention as early as is practicable.Chapter 34 of the Jamaica ConstabularyForce Standing Orders entitled PrisonerTransport – Policy and Procedure states inSection V (F):It is imperative that special care andattention is exercised by the escort partywhen physically and mentally handicappedprisoners are being transported.The chapter goes on to state in Section VII(K) that mentally disturbed prisonersgenerally pose a significant threat tothemselves and to anyone with whom theycome in contact. Therefore, it is essential thatadequate restraining devices are used tocontrol these individuals when they are beingtransported. The device chosen shall becapable of restraining the prisoner securelywithout causing any injury and shall notpreclude the use of handcuffs whennecessary.According to the extract taken from theJamaica Constabulary Force (JCF) TrainingManual entitled Handling Abnormal People“a constable has many contact with mentallydisturbed persons due to the nature of theprofession”.OVERVIEWThe police assistance is normally requestedbased on the fact that behaviour of amentally ill person may discourage others,including family members to approach them.As a result of these and other factors, the JCFneeds to ensure that its members are awareof the appropriate handling procedureswhich could be utilised in dealing with thementally ill.The constables were informed, that as ageneral rule “to be considered mentally dis-turbed, a person must be acting or behavingin a manner that is inappropriate for his orher position or background”.The constables were reminded that theyhave “many responsibilities when dealingwith the mentally disturbed” however, theirprimary responsibilities are always to protectthe public, protect themselves, protectproperty and protect the person (fromhim/herself or others).For the Constables to better able to dealwith the mentally ill, the JCF found itnecessary for them to become familiar with anumber of psychological terms such as whatis abnormal, agitation, anxiety, compulsion,delirium, delusion, depression, emotions,functional, hallucination, hypersensitive,irritable, mania (manic), neurosis, normality,obsession, organic, paranoia, psychosis,reality, toxin (toxic) et al. They were alsointroduced to the behaviour and how to dealwith the mentally retarded, deaf people,suicidal persons and crisis behaviour.DEALING WITH THEMENTALLY ILLThe JCF believes that dealing with thementally ill can be quite difficult for theconstables however; if they have a basicunderstanding of the mentally ill, then theywould be able to care for them in a safe andconsiderate way.In improving the constables’ understanding,some general suggestions were given asextracted from the JCF training manual.The constables were informed that“generally speaking, a mentally ill person isprobably less dangerous than a normalperson”, however there are exceptions,therefore the constables where introduced tothe different types of mental illness and howto deal with them.In the JCF training manuals, guidelines weregiven to the constables regarding how tobetter deal with the mentally ill. A few arelisted below;n The constables should understand thatoften the mentally ill person does not heartheir command and so does not react tothem. Occasionally the mentally ill’s reactiontime is so slow it appears that they did nothear.n The mentally ill should be treated in anunhurried, calm, non-authoritative manner,contact can be made and the person willcomply (even though the person may notoutwardly respond).n The constable should not become angryor impatient when the mentally disturbedseem to be ignoring them, as they arelistening.n Depending on the type illness, theconstable may have to remove their weaponand hat slowly and speak with the mentallydisturbed.n The constable should speak in a low, calmtone and explain every detail of theirintentions to the person. It will often taketwenty (20) to thirty (30) minutes.n The constable should have adequateassistance (at least five (5) constables) nearbut not in the room or beside them.n The constable should note thatoccasionally, the mentally ill person will hearvoices telling them to attack or kill and theywill do so, and under careful questioning theywill readily admit to such crime.n The constable, when dealing with asuicidal person, should take their time and donot give orders or use their authority to makethe person stop. (If possible they should tryto remove the means of the personcommitting suicide and try to get them totalk).nTHE CONSTABLE SHOULD:Take their time. They should not rush. Unlessthe person is acting in manner which isendangering himself, herself or someone else,they should try to learn something about thementally ill person before deciding what to do;as the calmer the constable acts, the more calmthe person will be.n The constable should get muchinformation as possible about the person.n They should avoid abuse or threats(this cannot be overemphasised) and don’torder them around, it will not work.n They should be as honest as possibleto the person.n They should remain objective. Asconstables they will be a target for verbal abuse.They should not become upset or angry at suchabuse as it is not personal. This is attributableto the person’s illness and they cannot controlit.n They should not restrain the person unlessit is absolutely necessary, as that will cause theperson to become even more upset.n Should it become necessary to place amentally disturbed person in a cell, theconstables should remember that theregulations state that, mentally disturbedpersons must not be placed in a cell with otherpeople. (it is better to take them directly to thehospital)n If the mentally disturbed person must beplaced in a cell, he or she should be checked ona frequent basis.25Searching for truth, striving for justice
26Searching for truth, striving for justice4404443998450984873254309561751855920236215262380926275274407649682566277046762492057955990495879632109851082098817033735882459425871001000020000300004000050000600002005 2006 2007 2008 2009 2010NumberYearAll RegionsSouth EastNorth EastNorth WestSouth WestFigure 1.1: Patients seen in outpatient clinics by region 2005-2010Figure 1.1shows that there has been a steady increase in the number of patients seen in outpatient facilities across the island between 2005and 2010. In 2005 the numbers stood at forty-four thousand and forty-four (44,044) and increased to fifty-six thousand one hundred andseventy-five (56,175) in 2010. (Source: Ministry of Health)Statistics
27Searching for truth, striving for justiceThe World Health Organisation’s(WHO) Mental HealthLegislation & Human Rights(2003) states:“People with mental disorders may, on rareoccasions, pose a risk to themselves or othersbecause of behavioural disturbances andimpairments in their decision-makingcapacities. This has consequences for peoplewho come in contact with them includingfamily members, neighbours, work colleaguesand society at large” (WHO 2003, p. 9).In summary, the WHO recommend thatcountries with mental health legislationshould, among other things:1. Map the mental health laws and setpriorities for the components whichurgently need implementation.2. Conduct interviews with key informantsand/or focus groups, mental healthprofessionals and other stakeholders.3. Conduct public education andawareness campaign.In an article entitled ‘Training Police to HandleMental Illness Cases’, a police officer who hadinteraction with mental health experts andfamilies informed that most situations couldbe defused if police officers were trained toapproach mentally ill people differently fromcommon criminals – slowly, calmly andrecognising that the person may not be seeingthe situation clearly (Silberner, 2009).On other occasions, he admitted that policeofficers usually have little choice but to takepeople in need of immediate help to countyjail. The Bazelon Center for Mental HealthLaw, a national legal-advocacy organisationrepresenting people with mental disabilitiesin the USA, is of the view that “what’s reallyneeded are community services where peoplewith mental illness can get treatment andsupport, so that crises can be avoided in thefirst place” (Silberner, 2009).LESS-LETHAL ALTERNATIVESThe cases reviewed in this investigationshowed situations where the police wereallegedly confronted by persons who, whenenraged, attacked with machetes, knives andother dangerous and offensive weapons.According to police personnel interviewed,the only way to protect themselves and theircolleagues was to discharge their firearms.This, more often than not, results in the deathof the mentally ill person.According to recommendations made byresearchers and mental health professionals,the taser gun or stun gun is the mostappropriate weapon to be used when dealingwith the mentally ill.The taser is a self-defence weapon and is agood alternative to a firearm. It delivers anelectrical charge to incapacitate a person. Thetaser uses compressed nitrogen gas to firetwo darts, which penetrate the skin of thetarget. The darts have trailing electrical wiresthat remain attached to the gun and deliversan electrical charge through the wires. A taserdelivers a continuously pulsing charge thatkeeps the target incapacitated as long as thetrigger is pressed.With the taser a constable has the option ofstaying a distance away in order to restrain theindividual. The possibility of causing injuryor death is greatly minimised when in use asopposed to a firearm, where more than oneperson can be injured and/or killed with thedischarge of a single bullet.The use of the taser, thus, presents thepossibility for saving the lives of persons whoare mentally ill.If this becomes an alternate weapon to beused by the security forces, it is recommendedthat a clear user policy be developed andimplemented to ensure that it is usedappropriately.The taser policy should include the trainingof members of the security forces in its useand the period for re-qualification, on whomthe device should be used, the emotionalaspect when the device is used on persons,where and when these devices can be utilised,the justifications for its use, and the legalframework behind its use.LESS LETHAL PROJECTILEWEAPONSThese types of weapons include ballisticbags and rubber or wood bullets, 12 gaugebeanbag rounds or flexible batons. These aregenerally fired from a standard 12 gauge 13shotgun, a 37mm gas gun, or a 40mmgrenade launcher. The taser also falls underthis category.BEAN BAG ROUNDSThe beanbag round is also known as aChapter 7: Best practice when dealing with thementally illOther jurisdictions and the use of non-lethal weaponsBing Images
28Searching for truth, striving for justiceflexible baton. It is typically fired from ashotgun and is used by civil and militaryforces, mainly in the United States ofAmerica.The round comprises a strong nylon fabricbag filled with approximately 40 grams oflead shot which is then fitted within astandard 12-gauge shotgun shell. When fired,the round spreads out in flight and distributesits impact over about 6 centimetres of the tar-get. It is inaccurate over about 6 metres andhas a maximum range of about 20 metres,and is unsafe to use below 3 metres. The blowthat it delivers will cause minimum long-termtrauma and no penetration but briefly renderthe target prone and immobile. This isprimarily used by police for riot control.THE BATON ROUNDAccording to a publication by NorthernIreland Human Rights Commission, (March2003), “The baton round is a projectile, firedfrom a weapon, which is intended to strikethe target with sufficient force to causecompliance through the application of pain.More specifically the baton round is a non-flexible impact projectile (also called a kineticenergy round), launched from a grenadelauncher. Because it is rigid and does not de-form on impact it will transfer most of its en-ergy to the target.“The physical consequences of this action,depending on the rate of speed of the celldisplacement or the effects of fluid shock,may result in two possible outcomes - bluntor penetrating trauma. The maximum desiredeffect of a crowd control munition is blunttrauma defined as the impact from an objectthat leaves the body surface intact, but maycause sufficient (non-life threatening) injuryto incapacitate. However, any application offorce to a human body may cause injury.“A baton round is intended to cause a blunttrauma on impact rather than a penetratingtrauma. Damage is also dependent on thearea of the body hit, for instance the head,neck, chest, spine and kidney areas areconsidered the most dangerous areas to hit,whereas abdomen, legs and arms are the leastdangerous.”The baton round can also be used insituations where a firearm would otherwisebe used, as a less lethal option.OTHER NON-LETHAL WEAPONThe pepper spray, handcuff and baton areuseful non-lethal weapon, however, in orderto use any of these on a mentally ill person,the security forces would have to get close,therefore putting the user at risk where thearrestee has not been otherwise incapacitated.The devices used when restraining thementally ill must be appropriate, effective,and pose a lesser lethal threat. Some of themental disorders are temporary and can becured. If it cannot be cured, it can be treated.Therefore, as was highlighted in the CaseStudies of DM and DC, both had theopportunity of rehabilitation andreintegration.nThree intact Bean Bag Rounds (Bing Images)
29Searching for truth, striving for justiceChaper 8: Analysis of the ProblemThe Strategic Mental Health Plan 2009-2014 highlighted that in Jamaica, acritical part of the problem is thatthere is no established facility tohouse persons who are mentally ill and havefallen into trouble with the law.“There is a need to establish more improvedfacilities for persons in prisons with mentalillness…and to provide specialised trainingfor police officers and probation officers, inorder to divert non-violent offenders withmental illnesses away from incarcerationinto treatment.…There is a “growingcriminalisation of persons with mentalillnesses, and jails and prisons are becominga major living setting for such persons,” thedocument states.WHO RESPONDS TO CASESINVOLVING THE MENTALLY ILL?Analysis of several psychiatric reports,suggests that some of the deceased weretransported by police, in the past, to seekmedical attention. The question that arisesthen is what was different at the time theindividual was fatally shot by the police?Could it be that the police who respond tosuch scenes had no idea that the person inquestion was mentally ill?Based on the investigations carried out, theimpression is given that the police are notnecessarily equipped to deal with personswho have mental illnesses.However, there is another factor to con-sider, as according to ACP Welsh, the stan-dard operating procedure is for the securityforces to respond in partnership with a mem-ber of the mental health fraternity, however,he was quick to highlight that the mentalhealth fraternity persons are not alwaysavailable.In all of the cases, the police insisted thatthey fired their weapons in self-defence.The JCF Standing Orders, while it gives thepolice a right to defend themselves and thosearound them, it also places a responsibility onthem to ensure that the individual receivesmedical attention as soon as possible. Whatmust be clearly stated is that the mentally illcan be violent and the police like the ordinarycitizen are at risk. In one case the wife of thedeceased stated that her husband attacked herwith the knife. As in the case of AG, itappears on the surface that the police had noother alternative but to use whatever appara-tus they had to deal with the situation onhand.nPolice confronting the mentally illBing Images
30Searching for truth, striving for justiceTHE CASE OF AGA relative of AG said he had two of the kitchenknives and was not speaking normally. When he wasconfronted, AG’s remark was “Do you think I wouldhurt you?” These family members were not usuallyfearful of their relative, but because of AG’s actions,they became afraid. They called the police forassistance; AG disarmed the police, however the fam-ily believes the police did not have to shoot.THE CASE OF LWFor the family of LW and others who werefatally shot, the police did not have to shoot.The family members believe that owing to thefact that the police were informed prior tocoming on the scene, they should have beenbetter prepared to deal with the situation, andbased on their request, shooting the relativeshould not have featured in the actions of thepolice. The expectation was that the policewere properly trained to deal with thementally ill. In LW’s case, his wife believedthe police had the appropriate weapons todeter her husband from his behaviour.EMOTION OF VICTIM’S FAMILYBased on analysis on specific cases, when afamily member witnesses a relative being shotby the police they experience a range ofemotions, from shock, anger to self-blame.They often feel if they had not called the po-lice their relative would still be alive. They alsoexperience the blame from other members ofthe family who believe they are to be blamedfor the death of the relative. Oftentimes theyfeel deep regret. The emotions that comewith the fatal shooting of a mentally illrelative are complex, because at the same timerelatives may be relieved.It is therefore clear that the police have tobe specially trained to defuse the situation.While in principle it is ideal that the policevisit the scene with psychiatric aides whohave been specially trained to deal with thesesituations, this is often not the case.To prevent recurrence of similar situations,trained psychiatric aides ought to be placed atthe main community health facility in eachparish so that they can assist the police whenthe need arises. It is clear that, as Dr. Abel andother psychiatrists point out, there needs tobe more investment in the strategic and sus-tainable development of community mentalhealth services to address some of the issuesconfronting the mentally ill and the police.The perception is far-reaching as once thephrase “mental illness” is mentioned personsthink that the individual is ‘mad’ and fits oneprofile, that is, they use expletives, hurlsstones and other missiles and are unkempt.The approach to persons who are mentally ill,to a large extent is influenced by people’sperceptions. The treatment that the mentallyill receives is often dictated by the perceptionsothers have of them. In some cases, personalexperiences dictate how they are approached.This may be the thinking of some of thepolice officers who have to deal with thementally ill.nPolice confronting the mentally ill, family emotions
31Searching for truth, striving for justiceSocial support andrelapse of thementally illFor the police and the family alike,there is a need for an extensivepublic education campaignfocusing on the treatment of thementally ill among us. This is needed in aneffort to address and reduce fatalconfrontations with the police and deaths incustody of the mentally ill. Additionally, untilthe perception of mental illness and‘madness’ are divorced this problem will notcease to exist. What must be clearlyunderstood is that there are degrees ofmental illness, and as a result all personsconcerned must act decisively in order toeffectively deal with the situations. If policemen and women are going to be asked to dealwith the mentally ill, they must be equippedto do so.A consultant psychiatrist interviewed as apart of this investigation pointed that theyoffer and do training with the security forcesperiodically or when requested.POLICE - DUTY TO INTERVENEForce Orders dated November 2, 2000 statethat “on no account must a member of thepublic be told in future that the police cannottake action against a mentally ill person unlessthe mentally disordered committed anoffence.” In fact, there have been cases wherepersons state that they had requested the helpof the police and were told that they wouldnot intervene because they did not want thefamily to blame them if anything were tohappen to their mentally ill relative. Thepolice seemed to be caught in a very delicatesituation where they want to help, and by theForce Orders are told to do so, however, ifanything goes wrong, they are the ones toreceive the blame.During the course of this investigation,several police personnel admitted that theywere ill-equipped as to how to effectively dealwith the mentally ill. In fact, having reviewedsome cases, it would seem that if the policehad been better prepared to work with thementally ill some of the fatalities and/orinjuries could have been avoided.MENTAL STATUS OF PERSONS WHOCOME IN CONFRONTATION WITHTHE POLICEIn most of the cases reviewed, the personwas known to be mentally ill prior to beingfatally shot by the police. The most commondiagnoses were schizophrenia and bipolardisorders. The diagnosis for one of thedeceased in this investigation remainsunknown. He was however treated by apsychiatrist.The conditions of these persons dated as farback as 8 years prior to their being shot bythe police. The only case where an individualwas shot by the police without formaldiagnosis, or being ill for any great length oftime was in the case of AG who was said tobe demonstrating signs of mental illness justdays before he was shot by the police.Force Orders dated November 2, 2000stated that “on no account must a memberof the public be told in future that the policecannot take action against a mentally illperson unless the mentally disordered personcommitted an offence.”nEducating citizens, and members of the security forcesBing Images
32Searching for truth, striving for justiceRecommendations and Findings1. The Commission humbly refers to theCommissioner of Police, the followingrecommendations for action (Section 17 (9)and 23 of the Independent Commission ofInvestigations Act):a. That within 120 days, the JCF develop aprogramme to train, refresh and monitor thememberships appreciation of theoperational policy regarding dealing withpersons who are mentally ill. This could in-clude the development of an aide memoirbooklet, simulation drills, and continuous li-aison with mental health professionals in thedivision.b. That within 12 months, all stations andresponse vehicles be equipped with tasers.Before deploying tasers for use, the JCFmust promulgate an operational policy forits use and certification (to include periodicre-certification) of police personnel.2. The Commission humbly refers toParliament and the Honourable Ministers ofHealth and National Security the followingrecommendations:n There should be at least two MedicalResponse Teams for each region consistingof police officers with specialised training indealing with the mentally ill and withpsychiatric aides. There is a special need inthe rural areas where their remotenesschallenges quick support from mental healthprofessionals. These teams should be on-callon a 24-hour basis.n Ongoing refresher courses for the securityforces should be provided regarding how tomanage the mentally challenged.The circumstances surrounding the death ofthe mentally ill as a result of confrontationwith the police were concerning. Based on theforegoing investigations, our findings are asfollows:n Of the incidents examined for thisinvestigation 75 per cent ended in fatalities,while 25 per cent ended in injuries.n Areas Two and Three accounted for 90 percent of the fatalities (involving mentally illpersons in confrontation with the police)recorded between 2005 and 2012. Notably, inArea Two, most of the mentally ill personswho survived these confrontations were shotin the leg.n People in the community often felt that thementally challenged individuals were nuisances.n Police officers have received basic trainingin dealing with mentally ill persons.n In the majority of cases, police impatiencecontributed to an escalation of the situationwith the final result being the killing or injuringof the mentally ill person. This is a breach ofthe JCF procedures and in extension a breachof right to life.n In a significant number of cases, the victimposed no obvious, or immediate threat to thepolice or citizens yet the interaction with thepolice led to the victims death or injury.n In most cases, when the mentally ill personwas shot (fatally or injured), there were nosenior officers (sergeant and above) present.n The police are ill equipped and unpreparedto handle situations involving the mentally ill.The JCF has not issued to police any of theexpected special restraint devices orappropriate less lethal weaponry that ought tobe used when dealing with mentally ill persons.Although, the JCF has a well-intentionedpolicy, the members routinely fail to abide bythe policy when a real life situation presentsitself.n In the majority of cases, the fact that thevictim was mentally ill was known to the policebeforehand.n In some cases the mentally ill personsexacerbated their condition by smokingmarijuana while on medication.n In most cases the deceased had been inpossession of an offensive weapon when theywere fatally shot.n There was no sign of consistent mentalhealth care at the community level.COMMISSIONS RECOMMENDATIONSFINDINGS
PART THREE:DEATH IN CUSTODYSearching for truth, striving for justice
In May 2011, the Commission receiveda letter from an attorney alleging thatin 2008 eight (8) prisoners died whilein custody at the Port Antonio PoliceStation.Checks by the Commission revealed that infact five (5) deaths had occurred at the samepolice station during the period 2005 – 2009.This caused the Commission to launch anislandwide investigation into deaths ofprisoners while in the custody of the police.Investigations have revealed that at least 36deaths have occurred from 2005 to 2012.When this is added to the number of personswho died in the Remand Centres (Depart-ment of Correctional Services), the statisticsreveal that at least 12 prisoners die in custodyeach year.The Commission believes that some of thecausative circumstances resulting in deaths incustody are repetitive and can be prevented.Efforts made to access reports ofinvestigations into these incidents reveal thatthese matters were not well investigated,which may hinder the outcomes of thesematters. Of note too is the fact that a numberof these persons dying in custody were men-tally ill.DEFINITIONS OF DEATHIN CUSTODYThe Independent Police ComplaintsCommission (IPCC) Report (2009) defineddeathin custody as:Deaths of persons who have been arrestedor otherwise detained by the police; itincludes deaths which occur whilst a personis being arrested or taken into detention. Thedeath may have taken place on police, privateor medical premises, in a public place or in apolice or other vehicle.The report defines deaths in custody assituations where deaths happen:1. During or following police custody whereinjuries resulting in the death of the personhappened during the period of investigation2. Deaths which occur in or on the wayto hospital (or other medical premises)following or during transfer frompolice custody.3. Death which occur as a result of injuriesor other medical problems which areidentified or developed while a person is incustodyDuring our investigation, it was noted thatthe definition for death in custody amongpolice officers was unclear across ranks.In one case it was felt that the prisoner didnot die in police custody because he wasadmitted in hospital at the time of death. Inother cases, some police personnel felt that ifthe prisoner was never physically at thelockup but was under police guard at hospitalfrom the time of arrest until he/she died,then it would not constitute a death incustody.Therefore, one of the aims of thisinvestigation is to define and explain clearlywhat is meant by a death in custody. It is alsoimperative that more police personnel at alllevels inform themselves of the various waysa prisoner can die while in custody.TERMS OF REFERENCE• To determine circumstances surroundingindividually reported cases of death ofdetainees, whilst in the custody of the police;• Determine whether or not there arereasons to suspect that any person iscriminally culpable for the death;• Determine whether or not the right to lifewas breached.• To examine the police reporting, recordingand investigation of these deaths;• To make recommendations for futureactions.nChapter 9: Death in Custody35Background of Investigations and Terms of ReferenceSearching for truth, striving for justice
Situation Analysis - Jamaica36Case StudiesSearching for truth, striving for justicePrisoner RMRM was about 16 years old when he beganshowing signs of mental illness, in one instancehe attacked his mother, cutting her with a knife.He was taken in by the police in his area andthen transferred to a Remand Centre forJuveniles. He later appeared before the FamilyCourt and was sent to a Juvenile CorrectionalCentre where he remained until his 18thbirthday, at which time he was discharged.In October 2004 he again attacked anotherfamily member and was taken into custody bythe area police. While in custody his behaviourappeared strange and so he was sent toBellevue Hospital.According to family members, he wouldsmoke marijuana and drink white rum. This hebegan doing at about age 16, and according tohis mother, “this flip him off”. Even after hisdischarge from Bellevue, he was still abusingdrugs and alcohol.He was admitted at the Bellevue Hospitalbetween 2004 and 2010 and was diagnosedwith Cannabis-induced Psychosis.COMMUNITY MENTAL HEALTH SERVICESAfter his discharge from Bellevue, he wasreferred to a Health Centre in the communitywhere he received treatment on a monthlybasis.THE INCIDENTOn January 2012 he was placed in custodyafter he and others were beaten by an angrymob of residents. Reports are that the menattempted to rob citizens. One person died onthe spot and RM was rushed to hospital wherehe was treated and released that same day incustody of the police at which time he had cutsand bruises all over his body.Specific instructions were given for theprisoner to be taken to another hospital for anorthopedic opinion on the following day and,three days later, to the Parish Health Centre forchanging of bandages.After carefully examining the diaries at thepolice station, it was observed that the policeofficer who escorted the prisoner fromhospital recorded the specific instructionsgiven by the doctor in the Station Diary.However, upon examination of the Cell Diary,it was noted that the entry that was recordedby the said officer was deficient, in that it omit-ted the details from the hospital for furthertreatment. The station diary in which theinformation was recorded was closed and putaway two days later. Between the period ofprisoner’s arrival and the day of his death therewas no entry taking him to the specified healthfacilities. Police personnel, however, hadconcerns for his mental health and so anappointment was set for him to see thepsychiatrist prior to his death; however, he wasnot seen.When RM was rushed to hospital when hefell, records show that he had multiple bruises,abrasions and cuts all over his body.AREAS OF CONCERN1. Record KeepingRM was transported to court but there wasno record of him being taken there. Aftercourt he was taken to another station thentaken to another station; however, the recordsat any of the station did not clearly show themovement of the prisoner.2. Treatment of prisoners with illnesses .RM who had obvious injuries was not takenback to the hospital for follow-up treatment.nPRISONER LSLS, a man of a Portland address, was a taxidriver. He was a prisoner at the Port AntonioPolice Station on a charge of rape. He had beenoffered bail on May 28, 2009 in the sum of onehundred and fifty thousand dollars($150,000.00), but he did not take up his bail.It is not clear if LS had a history of or had beendiagnosed with a mental illness. He was howeverplaced in Cell No. 5, the cell where persons withmental illness were housed separately from otherprisoners. LS had two cellmates, both of whomdemonstrated signs of mental illness. LS wasremanded in custody at one point for apsychiatric evaluation; however, once that wasconducted, it confirmed that he was fit to plead.THE INCIDENTOn June 2, 2009, during meal time andvisitation, a prisoner noticing that somethingstrange was happening in the adjacent cell,alerted police personnel. When checks weremade, LS was seen hanging from the ventilationgrill by a piece of string fashioned from hispants. There were no signs of injuries to thisbody and at the time he was found, there was oneother prisoner in the cell with him. He was cutdown and taken to the Port Antonio Hospitalwhere he was examined and pronounced dead.WITNESS ACCOUNTOne witness stated that he would normallyspeak to LS on a daily basis. However, on thisparticular day, LS did not greet him when hepassed by to go to the bathroom. He thoughtthis strange, but proceeded on his journey. Onhis way back he still did not hear LS, but stoppedto check with him, to find out why his brotherhad not come to bail him. He said he noticed LSwith his face to the wall and a piece of clotharound his neck. The prisoner who was in thecell with LS was interviewed but was deemedmentally incompetent to give a statement.AREAS OF CONCERNOn the day in question, prisoners in an adjacentcell brought to police officers’ attentionsomething that was happening in Cell No. 5, thepolice noticed that LS was hanging by a piece ofcloth from the metal vent at the back of the cell.When checks were made the body of LS wasmotionless.When checks were made of the records at thePort Antonio Hospital nothing was found for LS.A postmortem examination carried out on thebody of LS revealed that he died from asphyxiadue to hanging.A Coroner’s Inquest with jury was held into thedeath of LS and the jury returned the verdict thatLS suffered ‘death by asphyxia due to hanging’.The jury also ruled that no one was criminallyresponsible for the death of LS. n
37Searching for truth, striving for justicePRISONER LRLR, at the time of his death, was a residentin St. Andrew. He was arrested in October2012 on a charge of Malicious Destructionof Property. He was offered bail in earlyNovember of that same year and was bailedby a relative who later returned LR andsurrendered his recognisance saying theywere no longer willing to stand surety. Hewas back in custody pending court inmid-November.LR began presenting with signs of mentalillness in 2006 when he began behavingstrangely at work and was also destroyingproperty. Accompanied by co-workers hewas taken to a medical facility for evaluation.Prior to this, he presented with no signs orsymptoms of mental illness. The assessmentcarried out diagnosed him as having BipolarDisorder. He was admitted in hospital forfurther evaluation. He was discharged somedays after admission and received treatmentin the outpatient facility. By the followingMarch 2007 he became non-compliant withhis oral medication and so injectables wereadded to his treatment plan. He wasreadmitted in the Psychiatric Ward at theUniversity Hospital of the West Indies andremained there for two weeks.THE INCIDENTOn November 12, 2010, LR was found inhis cell at the Red Hills Police Station by cellguards. At the time he was lying on his back,naked, and appeared to be dead. Thesupervisor on duty was informed and thescene was processed by personnel from theArea 4 Scene of Crime. Upon examinationthere was no visible mark of violence seenon the deceased and no foul play wassuspected. The body was removed to themorgue pending a postmortemexamination.WITNESS ACCOUNTA relative of LR stated that he had gone tothe police and requested that they provideLR with medical treatment, however, in herresponse, she said that the police refused togrant her same. Some days after making thisrequest she received a call saying that her sonhad died while in the custody of the police.THE SECURITY FORCE’SACCOUNTAccording to the Station Diary entry takenfrom the Red Hills Police Station, LR wasvisited the same day as his death by a medicalPsychologist. LR was assessed by the doctora few days prior to his death who promisedto send a team to administer medication toLR.The final cause of death was determined aspneumonia, chronic obstructive pulmonarydisease, left ventricular hypertrophy andchronic ischemic disease. A secondary causeof death was a fatty liver.AREAS OF CONCERNOf the five (5) cases examined in thePortland Division, three (3) of the prisonerswere found hanging, one was beaten by in-mates which led to his death and one wasdue to illness. The mentally ill prisoners werekept in a poorly maintained cell which hadno proper lighting. n
Jamaica’s Constitution guarantees theprotection of the right to life. The Stateis obliged to take steps to secure thisright. Persons in the custody of the State areparticularly vulnerable and the State has aspecial burden to ensure that their lives aresecure.The State must take the necessary andreasonable preventative operational measuresto protect an individual whose life is at risk,whether by his own hands or by the actionsof a fellow inmate. The standard of attentionrequired must not be impossible ordisproportionate. Where the authorities knew,or ought to have known, of a real andimmediate risk, then they ought to take suchreasonable and expected measures that arewithin their scope of powers to avoid therisk.The right to life further triggers aprocedural obligation for the State to ensurethat there is an independent, effective,prompt, and official investigation of thecircumstances where an inmate is killed. Thisinvestigation must have a reasonable degreeof public scrutiny and ought to be aimed atmaking responsible State agents accountablefor their actions or omissions (Edwards etux v. UK (2002) 12 BHRC 190, Amin v.Secretary of State of the Home Depart-ment  1 AC 653, R(L a patient) v.Secretary of State for Justice AC588).The gaoler must take reasonable steps toascertain whether a prisoner is a suicide riskbearing in mind that inmates are at a greaterrisk of suicide than the general population(Orange v. Chief Constable of YorkshireConstabulary  QB 347).The Constitution further requires thatpersons do not suffer torture or inhuman anddegrading treatment. Poor cell conditionsmay breach this provision (Doris Fuller v. R(1998) 56 WIR 337).The State’s obligation is also recognised intort. The arresting officer, knowing that thereis a risk of suicide, has a duty to so informthe gaoler. If an inmate’s suicide isforeseeable, and the gaoler did not exercisedue care to prevent this, a cause of action fornegligence could arise.The gaoler could not successfully pleadnovus actus interveniens (i.e. that thedeceased’s act broke the chain of causationthat had started with the gaoler’s negligence)as the deceased’s act was the very thing thegaoler was required to guard against (Reevesv. Commissioner of Police for theMetropolis  1 AC 360).Criminal liability for manslaughter mayarise where the standard of care is breachedto such an extent that a jury believes that it is“gross” and deserving of criminal sanction.Summing up the legal provisions, the Stateis obliged to:1. Take reasonable steps to protect personsin state custody from being killed whether bytheir own hands, by fellow inmates, or byagents of the State.2. Conduct an assessment of thecircumstances of any person being taken intocustody as to the risk that they will sufferharm whilst in custody.3. Ensure that the conditions of detentionare humane.4. Provide the means for independent,effective and adequate investigation of adeath in State custody.If the State fails in any of these regards theconstitutional right to life would have beenbreached and possible exposure for criminaland tortious liability exposed.THE CONSTABULARY FORCE ACTAccording to the Constabulary Force Act,December 19, 1935 - Section 50H:Chapter 10: The Legal Framework38Searching for truth, striving for justiceLocal Laws
(1) Every complaint made by orconcerning a person arrested or detained shallbe recorded in the Station Diary.(6) Where it appears to any member of theSecurity Forces that a person under arrest ordetention is ill or requires medical attentionwhether or not that person complains ofillness, such member shall, without delay, takesuch steps as are necessary to cause thatperson to be given medical attention.POWERS OF A CONSTABLEAccording to the law, where an offence iscommitted by a person who appears to aconstable on reasonable grounds to bementally ill, the constable may charge thatperson for the offence and bring him beforea Resident Magistrate at the earliestopportunity, being not more than a period offive days after the date on which the offenceis committed; and may, where it is necessaryto detain the person until he is broughtbefore the Resident Magistrate, detain him ina lock-up, remand centre or a place suitablefor the detention of mentally disorderedpersons. Additionally, the constable mustmake a report in writing to a prescribedperson within twenty-four hours of suchcharge or detentionAccording to the Corrections Act, 1985,section (26) subsection (1) where a prisoneror person detained in a lock-up or remandcentre appears to the Minister on thecertificate of a registered medical practitionerto be of unsound mind, the Minister may, byorder in writing setting out the grounds ofbelief that the prisoner or person detained isof unsound mind, direct his removal to anypublic psychiatric facility within the island.The person will be kept and treated as if hehad been ordered to be detained in the publicpsychiatric facility under the Mental HealthAct and, subject to Section 27, until the seniormedical officer or the mental hospital certifiesthat such prisoner or person detained hasceased to require treatment in that institution.According to Section (79) the Coroner,having jurisdiction in the place where acorrectional institution is situated, shall holdan inquest into the death of any prisoner onwhom sentence of death is executed or whomay die in such correctional institution.ORDER FOR POSTMORTEMEXAMINATIONSAs it regards the ordering of a postmortemexamination, the Coroner’s Act, 1900 dictatesthat (6.-41) If a coroner/JP/designatedpolice officer becomes aware of a dead bodyor a part of the dead body in his jurisdic-tion/parish and there is reasonable cause tosuspect that that person died a violent/unnat-ural/sudden death and no one knows thecause of death, or a medical certificate hasnot been produced or if that person died inprison or under such circumstances that re-quire an inquest under any law, that Coro-ner/JP/designated officer has the discretionto lawfully direct any qualified medical prac-titioner to perform a post mortem on thebody.7.-41) Whenever the fact of a death underthe circumstances referred to in section 6 isreported at any police station, the officer incharge thereof shall forthwith notify the des-ignated police officer of such fact.(2) A designated police officer who is in-formed or notified of the fact of a death,pursuant to subsection (1) or section 6 shall:(a) in the case of information or a notifi-cation given by a person other than theCoroner, inform the Coroner of the factof death, within forty-eight hours after re-ceiving the information or notification; and(b) forthwith cause an investigation to bemade into the circumstances relating to thedeath, and report thereon to the Coronerwithin twenty-one days after first receivingsuch information or notification. n39Searching for truth, striving for justice
40Searching for truth, striving for justiceWhenever the police is contacted regardinga person who is reported to be behaving ina way that might suggest that they arementally ill, the police should respondpromptly, and special containmentequipment for example, handcuff, should beused to prevent the need for lethal orinappropriate force. (The Jamaica ConstabularyForce Orders dated October 21, 2004, Serial No.2994 which was republished in the February 16,2012 Force Orders, Serial No. 3374)Further, the individual should be takenimmediately to the nearest designatedmedical facility for proper medical/psychiatric evaluation. Steps should be takento establish if the person arrested has ahistory of mental illness and is receivingactive treatment. Arrangements must be inplace to ensure safety from other inmateswhile the mentally ill person is in custody.Lock-Up Administration Policy andProcedures outlined in Chapter 41 of theJamaica Constabulary Force Standing Ordersstates that when a person other than amotorist is under the influence of drink ordrugs, is self-destructive and endangering thepublic, the police may take such person incustody. The document further dictates thatin handling such person the police shall becourteous, using patience and goodjudgment at all times. As it relates todetention, the policy states that no personsfitting the description above shall be placedin a cell with other prisoners but rather beplaced in a temporary holding facilityseparate and apart from the cell block. Itstates that such person or persons shall beplaced therein under close supervision ofthe cell staff and Guard Room Personnel.The document also makes provisions forthe frequency of visit to the cell, stating thatwhere a person is arrested and is believed tobe of unsound mind the police shall visitsuch prisoner once every half-hour and eachvisit recorded in the appropriate Registers.As it relates to security, the policy statesthat any unusual conditions or occurrenceobserved in the cells should immediately bereported to the Sub-officer in charge oflockups whether verbally or in writingdepending on the nature of the occurrencefor appropriate action to be taken. Properdocumentation is also required once thisperson is in custody as the Sub-officer incharge of lock ups are required to record inthe appropriate registers any incidentreported to him that may threaten the facilityor persons in the facility and prepare adocumented report and ensure it isforwarded through the appropriate channel.In case of emergency situations theSub-officer in charge of lockups maycommunicate verbally to the Sub-officer incharge of Detention and Courts orDivisional Officer depending on the natureof the emergency, but in any event as soonas possible thereafter a comprehensive re-port shall be submitted by him through theproper channel for administrative review.To achieve proper administrative controland to ensure the security of lockups, adocumented security inspection of thephysical facilities should be carried out atregular intervals, but at least once weekly.Such exercise will help to ensure the safetyof police and prisoners and minimiseopportunity for escape.To maintain proper supervision of lockupswith an accurate accountability of prisonerswithin, the following procedure shall befollowed:• The Sub-officer in charge of lockups orStation guard on taking over duty shallphysically check all cells and prisoners andensure that the cells are secured and that allprisoners are present and accounted for asper station records;• Prisoners shall be visited and visuallyobserved at least once in each hour. In casesof “drunks”, lunatics or other exceptionalcases, they will be observed once in eachhalf-hour and at least three (3) times everyhour between 7:00 p.m. and 5:00 a.m. eachday. Each visit shall be recorded in theStation Diary or Cell Diary as appropriate.Prisoner identification is also addressed inChapter 34 of the Jamaica ConstabularyForce Standing Orders. Policy andProcedure Section VIII (B2) sub-titledPrisoner Identification and Records:“the supervising Sub-Officer or StationGuard shall be responsible to compile theentries on the Prisoner’s Card. The numberat the top of the left hand corner of the cardshall represent the original entry made in theStation Diary at the time the prisoner wasarrested, followed by the date of arrest. Allother entries made in other relevant registersshall be cross-referenced with the StationDiary entry. The Station Diary numberallotted to the prisoner shall be maintaineduntil the prisoner is released or transferred.”It is the responsibility of the supervisingSub-officer to acquaint himself with therecords of all prisoners and thereby developa thorough up-to-date knowledge of thecase of all prisoners in custody. At theexpiration of his tour of duty, thesupervising Sub-officer shall submit awritten report to the sub-officer in charge toinclude:1. Number of prisoners in custody2. Movement of prisoners, i.e., Courtattendance, bail, released, transferred etc.;3. Sick prisoner and medical attentionreceived, if any;4. Any other matter relative to the welfareand safety of the prisoners and thepersonnel whom he supervises.nChapter 11: The Jamaica Constabulary Force GuidelinesJAMAICA CONSTABULARY FORCESTANDING ORDERS
41Searching for truth, striving for justice4riPof223ssonersonersririsonerPof321aAre2aAre3aAre4aAreumberN001ofumberN0 0 0 0 05aAre02005 2006 2007 2008 20092009 2010 2011earY2012 2013Figure 2 shows the number of prisoners who have died while in thecustody of the police. In the (36) cases examined, for whichinformation was available, the period 2005 through 2012; Area Fouraccounted for the highest (9) followed by Area Three with eight (8),Area Two and Five accounted for seven (7) respectively whilst AreaOne had five (5).Most of the deaths (six (6) each) occurred in 2006 and 2009. In 2010there were five (5); while 2005, 2007, 2008 and 2012, there were four(4) each followed by 2011 with two (2). A point to note, one of theprisoner’s dates could not be ascertained at the time of this report.Figure 2: Prisoners who have died whilst in custody of the Police from 2005-2012Statistics
42Searching for truth, striving for justice1aAreecoliP)ionsisiv(DdlanstmoreeWrveoHansemJat.SlawnTr2aAreecoliP)ionsisiv(DoliP(DnnAt.S t.SryMat.S aMdrtlanoP Cl3aAreecoli)ionsisiv(DAreecoliPisiv(DhtebzaliE stoingKrestechna nstoingKnodrenaCl stoingKdAt.S4aAre)ions(Div5aAreecoliPstaEnsto rew NodnAt.StralnCe nriehtCat.SWestn nriehtCat.Shtrew S Tht.S)ionssi(Divhrtrew NothuoSenrthNoenylawneTr rew SdnAt.SrewdnAt.Shtuorew S moTht.Srew tralnCesamFigure 3: Police Area Headquarters and Divisional OfficesThe Jamaica Constabulary Force (JCF) has divided their police areas of Jamaica into five (5) Divisions, (See Figure 3) namely Areas One (1)through Five (5). Under each Area Head Office are Divisional Offices, which manage and support the various police stations within that di-vision. Area Four (4) is the largest with five (5) divisions, followed by Area One (1) and Five (5) with four (4) divisions respectively, and AreaTwo (2) and Three (3) with three (3) divisions each.N %Abduction/Rape 5 14Extortion 1 3Malicious Destruction of Property 5 14Sus/Larceny by trick 1 3Murder-related charges 6 16Buggery 1 3Housebreaking & Larceny 1 3Indecent Assault 1 3Wounding-related charges 7 19Larceny f/person 1 3Attempted murder 1 3Illegal Possession of Firearm 2 5Incest 1 3Suspected bigamy 1 3Fraud 2 5Total 36 100Table 1: Reasons for which deceased [prisoners]were arrestedTable 1 shows the reasons for which deceasedprisoners were arrested and placed in the custodyof the police. In the 36 cases examined for whichinformation was available, abduction, rape andmalicious destruction of property accounted for14 per cent respectively. Murder-related chargesaccounted for 16 per cent while wounding-relatedcharges accounted for 19 per cent. (The others, toinclude illegal possession of firearm, were betweenthree (3) and five (5) per cent.
Figure 2.1 shows the number and age of prisoners who diedwhilst in the custody of the police. In the 36 cases examined, theprisoners’ age spanned between 15 and 65. The age range 26-35accounting for the highest i.e. 12 of which Areas Two and Fouraccounted for three (3) each.The age range of 36- 45 had the second highest - nine (9) - withArea Four accounted for three (3), whilst the age range 15-25had the third highest (7) with Area Three and Five accountingfor two (2) each. The age range 46-55 and 56-65 accounted forfive (5) and three (3) respectively.43Searching for truth, striving for justiceFigure 2.1: Age of prisoners who have died while in custodyAgeNumberofPrisoners
Table 2 shows the reasons for which deceased (prisoners)were taken to hospital after they were arrested and placed inthe custody of the police. In the 36 cases examined, 25% ofprisoners were taken after they were found hanging; 17 percent after they were found unconscious/unresponsive; eightper cent due to physical injuries, while three per cent each wastaken due to other mental health issues and after stoppedbreathing/collapsed. 44 per cent fell under the category ofother.44Searching for truth, striving for justiceTable 2: Reasons deceased [prisoners] weretaken to hospital following their arrestN %Stopped breathing/ collapsed 1 3Physical injuries 3 8Found hanging 9 25Unconscious/ Unresponsive 6 17Other 16 44Other mental health issues 1 3Total 36 1002025510150At ckLoAt -up alrivarnopU ruohaninWith uoh12to1 rsu rsuoh24to12 1to24 keewFigure 2.2 shows the length of time that passed between theprisoner arriving at the hospital and dying. In the (36) casesexamined for which information was available and applicable,during the period 2005 through 2012, ten (10) are currentlybeing investigated.Of the 36 cases, 22 prisoners were pronounced dead uponarrival at hospital. Six (6) deaths took place between 1 and 12hours after prisoner’s arrival, whilst three (3) deaths occurredwithin one hour of arrival and another two (2) died between 24hours and one (1) week after arriving at the hospital. A furtherthree (3) prisoners were pronounced dead at the police stationlockup.Figure 2.2: Time between detainee arriving at hospital and dyingNumberofPrisonersLength of Time
45Searching for truth, striving for justiceFigure 1.2 shows that of the total number 59 inmates who died between 2008 and 2011 whilst in custody of the De-partment of Correctional Services, 42 deaths were due to natural causes and 17 were unnatural. Of this amount ten(10) died in 2008, 15 in 2009, 18 in 2010 and 16 in 2011. For the period analysed nine (9) were mentally ill inmates; six(6) of whom died from natural causes and three (3) from unnatural causes. Among these, one was unfit to plead.(Source: Department of Correctional Services)109121416tAmoun91413rutaN alr21468Amoun643taUnn alrut02008 2009eYYe2010rae2011Figure 1.2: Death of inmates while in the custody of the Department of Correctional Services
46Searching for truth, striving for justiceThe Deceased - Police AreaArea 11. George Lindo – June 8, 20062. Jasper Forbes – September 26, 20053. Gayon Brown – September 10, 20084. Gerald Grey – May 2, 20095. Ernie Smith – November 23, 2006Area 21. Henry McCalla – December 13, 20082. Fabian Hall – April 18, 20083. Lincoln Samuels – March 6, 20094. Donovan Johnson – August 4, 20055. Nicholas Robinson – March 30, 20076. James Walford – June 21, 20117. Osbourne Cooper – May 30, 2011Area 31. Theophilus Stubbs – November 3, 20092. Harold Graham – August 13, 20083. Kemar Williams – November 7, 20054. Buxton Miller – Unknown5. Fabian Walters – February 21, 20076. Noel Cole – November 4, 20077. Robert Maragh –February 19, 20128. Ryan Mullings– February 17, 2012Area 41. Michael Thompson – August 26, 20072. Warren Armstrong – February 8, 20103. Palgrave McFarlane – September 14, 20054. Vincent Phipps – November 20, 20105. Christopher Swaby – March 26, 20106. Washington Brown – April 4, 20067. Roland Malcolm - June 6, 20128. Ricardo Harrison – June 18, 20129. Andrew Scott - December 19, 2006Area 51. Lovell Riley – November 12, 20102. Errol Wynter – February 16, 20063. Lloyd Ferguson – January 19, 20104. Shane Stamp – April 2, 20095. Gary Pinnock – July 1, 20096. Eric Bell – July 21, 20097. Eric Barrett – June 20, 2006
47Searching for truth, striving for justiceFORENSIC PSYCHIATRIC FACILITYAccording to Messers. Rutherfordand S. Duggan, treating personsin a Forensic Psychiatric facilityprovides the most effective andappropriate treatment for mentally illoffenders, and provides greater benefit interms of diverting persons from the criminaljustice system. Many of these persons wouldotherwise have been lost in the criminaljustice system. Treatment in such anenvironment can also help to reduce therising custodial population and the increasingre-offending rates for those leaving prison(Rutherford, M & S. Duggan, 2007September).It also provides treatment and support forthose individuals who require a secureinpatient facility due to their risk of harm toself and/or others. The Forensic PsychiatricHospital is a designated mental health facilitywhich provides for involuntaryadmissions for treatment purposes.(http://www.bcmhas.ca/ForensicService/ForensicHospital/default.htm)POLICE LOCKUPSCharles Hounmenou, in his article Standardsfor Monitoring Human Rights of People in PoliceLockups lists the lack of access to mentalhealth care as one of the deficiencies ofpolice lockups (p. 1). Citing Layman, E. P. &McCampbell, S. W. (2007).The Prison Rape Elimination Act of 2003 andLaw Enforcement Agencies: Policy DevelopmentGuide recommended as a means of ensuringthe safety of detainees that:“Prior to admission into a police cell,detainees [should be] assessed in relation torisks including mental health, suicide, criminalhistory, and the potential for sexual violence,and vulnerability for victimization” (p. 3).While speaking to mental health he quotedthe National Law Enforcement Policy Centre,“A police lockup facility is not intended foror equipped to handle detainees who requireimmediate or sustained medical attention”.Included in his indicators of detaineemedical/mental health, he stated, “Everydetainee who appears to be physicallyincapacitated due to drug or alcoholintoxication should preferably be examinedby a physician”. (p. 6). He further cited thepolicy document and stated that “no detaineewho has injuries or illnesses that requirehospitalisation or attention of a health careprofessional (should be) booked into a policelockup facility or otherwise held forinterrogation or other purposes” (p. 7).Hounmenou continued, “Any detainee whoappears to be mentally ill [should be]monitored continuously until he or she hasChapter 12: Other JurisdictionsInternational Best PracticesPhoto:Bing Images.
48Searching for truth, striving for justicebeen examined by a doctor or qualifiedmental health practitioner.A register is kept of any in-cell contact,including the time and duration of the con-tact, the custodial officers involved and theresults of observations about the conditionof any person who appears to be mentally illor who is intoxicated.Any person apprehended by the police andassessed as having a mental illness by aregistered mental health practitioner [shouldbe] transferred to an appropriate health carefacility as a matter of urgency.” (p. 11)He also stated that police assigned to apolice lockup full-time or part-time shouldbe appropriately trained for preventingsuicide of prisoners.In like manner, R. Lines in his article TheRight to Health of Prisoners pointed out that“Proper mental health care in prisons mustinclude adequate written record-keeping andmonitoring of patients, and be carried out byproperly qualified staff” (p. 27). Monitoringof mentally ill patients should increasewhenever there is a change of mood andbehaviour. Lines inferred that the mentalhealth of persons who are already mentallyill deteriorates significantly withincarceration. “As with general medical care,mental health care must be available andprovided in a timely fashion in order to beconsistent with human rights law” (p. 27).UN Special Rapporteurs reporting on amission to Peru recommended that“Appropriate mental health services be madeavailable to persons in detention” (p. 28).In Mental Health as a Human Right, LanceGable and Lawrence O. Gostin highlight thatpersons with mental illness face considerablechallenges that prevent them from beingfunctional. These obstacles have implicationsfor quality of mental health care they receive.They state, “Mental health comprises anintegral component of overall health andwell-being” (p. 250). They further argue,quoting MacArthur Violence RiskAssessment Study that “…persons withmental disabilities have no greater propensityto commit violent acts than persons who donot have a mental disability….the keyvariable in predicting dangerousness isco-morbidity with alcohol and drugdependency” (p. 251). Gable and Gostin alsohighlight that a high number of persons whoare mentally ill are becoming homeless withthe move of deinstitutionalisation. Theypoint out, quoting in part G.N. Grob’s MentalHealth Policy in America: Myths and Realities:“Equally troubling is the steadytransmigration of mentally ill disabled peoplefrom psychiatric institutions to otherinstitutions – jails, prisons, remand centres,and nursing homes – where they do notreceive appropriate treatment, if any. In manycountries around the world prisons havebecome the de facto mental health systems,leaving this population isolated, forgotten,and deprived of their human rights” (p. 253).IPCC REPORTResearch carried out by IPCC entitledDeaths in or following police custody highlightedthat the most common cause of deathamong prisoners was hangings. Of the 44suicides across an 11-year period 34 werehangings.The Independent Police ComplaintsCommission (IPCC) of the United Kingdomreport entitled Deaths in or following policecustody: An examination of the cases 1998/99 -2008/09 highlighted that in case where riskassessment was done persons had “some oftheir property and/or clothing removed”while in other cases persons had less frequentchecks and suicides were committed whichraises question about the care they receivedin custody. Case 5.3 highlights this fact. (p.57-58).The report further stated “...custodyofficers may withhold a detainee’s clothingand personal effects where they consider that“they may use them to cause harm tothemselves…” (p. 39).As concerns supervision of detainees whoare considered high risk and/or mentally illthe report stated, “Detainees considered tobe at high risk of self-harm, who are treatedas mentally ill, or about whom there areconcerns regarding their consciousness, maybe placed on constant supervision. This mayinvolve constant monitoring through regularphysical checks, as well as use of CCTV” (p.39) Case 52 highlights this fact (p.55).n
49Searching for truth, striving for justiceCase Studies - United Kingdom (IPCC)CASE STUDY #1History of attempted suicides not captured, poor riskassessment, lack of checks and inadequate recording ofchecks.A man was arrested for assault/wounding with intent. Hewas a vulnerable individual as he was homeless and hadaddictions to alcohol and drugs (including solvents,amphetamines and crack cocaine) and had made severalsuicide attempts in the past. Despite the involvement of thepolice in one of the previous suicide attempts, there was nomarker on the Police National Computer for self-harm.At the risk assessment stage (in police custody), theinvestigator states that no efforts were made to probe orencourage responses to the risk assessment questions. Theofficer in charge of the risk assessment simply marked ‘no’against the different points. In addition, an officer in thecustody suite pointed to the detainees waistband andshoelaces as a potential risk, but this was ignored by the officerconducting the risk assessment.Many of the cell visits were not carried out when required,and the checks which were conducted were not adequatelyrecorded on the custody record. No cell visits were carried outbetween 1a.m. and 4a.m., a three-hour gap in which the manhanged himself in his cell. The deceased hanged himself fromthe pipe attached to the sink in the cell. It transpired that theofficers in the custody suite had been watching a DVD duringthe three-hour time period.The pipe from the sink had not been identified as a ligaturepoint before. The investigator stated that he believed the ac-tions of the three custody officers “fell short of the positiveobligation under Article 2 [ECHR] to protect [the deceaseds]life”. The file was passed to the CPS to consider a prosecutionfor misconduct in public office.nCASE STUDY # 2Lack of agreed checks and failure to accurately record in thecustody record.Police were called to a residential home by staff who reported thatone of their residents was “being violent” towards them. The policeattended and arrested the resident to prevent a further breach ofthe peace. She was taken to custody and there were markers on thecustody system for her as having mental health issues and previouslysuffering from depression.She was therefore placed in a cell with CCTV and on 30-minutechecks. She did not receive the checks she was supposed to; thecustody record showed that she was checked after one hour, aftertwo hours, and then after another hour. After checking the CCTVit was discovered that there were some additional checks that hadnot been recorded on the custody record, but that the woman hadstill not been checked every 30 minutes in accordance with PACE(for vulnerable detainees).When the woman was last checked on, she was lying on the floorin a foetal position, but rather than physically check her, the officerassumed she was asleep and continued her duties. Shortly after this,the custody sergeant was able to confirm that the deceased couldreturn to her home, and was going to inform her of this. At thatpoint an officer checked the CCTV monitor and saw the deceasedlying on the cell floor.The custody sergeant and gaoler attended the cell and found hernot breathing. They began first aid and called for an ambulance.Paramedics arrived and continued resuscitation attempts but the de-ceased was pronounced dead in hospital shortly after.The investigator found that the officer who was supposed to checkthe deceased did not check her every half-an-hour, did not accuratelyrecord the checks that were undertaken, did not record the searchof the deceased, did not record the visit by the doctor, and failed toattend the cell straight away when it was recognised that the deceasedwas lying on the floor. It should be noted that this officer had neverreceived any formal custody training but did recognise her PACEduties.The investigator also found that the custody sergeant failed to giveappropriate instructions to the other custody staff regarding themonitoring of CCTV and failed to ensure the custody records wereproperly maintained. The file was referred to the Crown ProsecutionService to consider possible criminal actions against the policeofficer for neglect of duty of care.The custody sergeant was given words of advice. The investigatoralso noted that when the deceased had previously been detained, therisk assessment had stated she was “violently suicidal/ had self-harmtendencies”, but this information was not on the system when therisk assessment was conducted for the more recent detention.n
50Searching for truth, striving for justiceCHARACTERISTICS OF PERSONSDYING IN CUSTODYOf the data provided through theDetention and Courts Branch ofthe JCF, all persons dying incustody were male and of Jamaicannationality. The men were generally of poorsocial background and general lack of familysupport. Some of the deceased wereremanded pending the outcome of apsychiatric evaluation, so in essence they weredisplaying elements of mental illness.According to the Strategic Mental HealthPlan 2009-2014 prepared by Dr. WendelAbel, consultant psychiatrist at the Universityof the West Indies:“there is no in-patient facility for convictedmentally ill individuals within the healthsystem…. There is a need to establish moreimproved facilities for persons in prisons withmental illness and to provide specializedtraining for police officers and probationofficers, in order to divert non-violentoffenders with mental illnesses away fromincarceration into treatment.The failure to develop an adequatelyfinanced and integrated, community-baseddelivery forensic service systems has resultedin the growing criminalisation of personswith mental illnesses. Jails and prisons arebecoming a major living setting for suchpersons” (p. 13)The first comprehensive mental healthstrategic plan developed for the period 2001– 2006 had as one of its major strategic foci:“The training of critical gatekeepers e.g.police, correctional officers, guidancecounsellors.”It is clear that prisons and lock-ups are notthe best places for the mentally ill.Professionals and police personnel argue thatthere is deterioration in their condition oncethey come into lock-up. This is usuallyexacerbated by relatives abandoning themwhilst in lockup. Many of them languish inthe correctional facility and lock-up and someeven become lost in the system.In one of the cases reviewed, a man was inlockup and eligible for bail. The policehighlighted[The man] age 28 yrs old…who wasarrested [and] charged for the offence ofMalicious Destruction of Property and bailedin the amount of $20,000 with surety [motherin] November 2010 was taken back to thestation and handed over by surety who statesthat she no longer wishes to stand surety foraccused.This man later died in custody.HOUSING ‘MENTALLY ILL’PRISONERS WITH ‘SANE’ PRISONERSIn cases where it was suspected that aprisoner was mentally ill, the police wouldgenerally separate such a prisoner. However,there have been cases investigated wherefamily members and others were convincedthat the prisoner was not mentally ill, yet washoused in a section deemed for the mentallyill.RECORD KEEPINGThe JCF Standing Orders outlines thepolicies and procedures that obtain for recordkeeping.Of the cases being investigated, record-keeping, in general, at these police stations,was usually commendable; however, therewere several issues uncovered which haveimplications for staff and prisoner safety andthe general smooth running of the lockups.• Referencing of entries is generally aproblem. In many of the cases investigated,the investigators had to “scour” the diaries inorder to find any connecting entry having todo with a prisoner. It is the view of theinvestigators that where possible, all entriesconcerning a particular prisoner should becross referenced.• Prisoners not properly accounted for.There are many instances upon perusingStation and Cell Diaries that it is seen wherea prisoner moves from the lock-up to anotherlocation. Oftentimes, there is no entry toshow the prisoner returning from thelocation or to whom the said prisoner washanded over.Based on, Chapter 34 of the JamaicaConstabulary Force Standing Orders, entitledPrisoner Transport – Policy and Procedure SectionVIII (F5e), it appears that the JCF StandingOrders regarding the referencing of entriesand accounting of prisoners are not followedthrough in many instances. The case study ofPrisoner RM gives the clearest exampleduring the course of this investigation theconsequences of poor record-keeping whichhinders effective actions.• Copying entries – whenever an entry ismade in more than one diary concerning aprisoner, an exact copy of the entry shouldbe made in the other diary. For example, inthe case of RM an entry was made in the CellDiary of the officer’s arrival with him athospital. However, when an entry was madein the Station Diary certain details were omit-ted. (See the entries on page 51).nChapter 13: Analysis of the Problem
Searching for truth, striving for justiceThe entries highlighted above areboth critical entries, as theyconcern one and the same pris-oner. This is a prisoner whocame into custody with severe injuries as a re-sult of a mob attack.One may argue that the entry in the CellDiary is arguably more important becausethis is the diary which the Cell staff will haveto use concerning a prisoner on a daily basis.The Station Diary speaks to the treatmentthat the prisoner ought to receive as per thedoctor’s instructions. However, this entry wasnot recorded in as much detail in the CellDiary. Record-keeping is also importantbecause as shifts change the person comingon will have some reference as concerns whathappened while they were out. It is thereforecritical that Cell staff and all other policepersonnel having anything to do with aprisoner be so informed as to the importanceof recording detailed entries of prisoners.Of importance too, where this matter isconcerned, is that this Station Diary wasfinished about three pages later and sodepending on how diaries are stored whenthey are finished this entry would be easilymissed. It is for this reason that therecommendation is made that whenever anentry is made in a Cell Diary and StationDiary they are referenced to each other, justso that the concerned police personnel canmake a check to ensure that what is recordedin one is actually recorded in the other.OVERCROWDING AND STAFFSHORTAGEPolice lock-ups are designed with certainspecifications with the intention of housinga certain number of prisoners. This is for thepurpose of safety of the prisoners, who eventhough they have been deprived of theirliberty, enjoy certain rights and privileges, andalso for national and overall security.In 1992, Agana Barrett died at the ConstantSpring Police Station whilst being housed inan overcrowded cell. The cell measured8ft x 7ft and was housing 19 men. He alongwith the other men was inside the cell for sev-eral hours between October 22 and 24. It wason the 24th that it was discovered that Barrettand two other men, Vassell Brown and IanForbes, had died. Reports published are thatthe men died from lack of oxygen.The men were picked up by the police to seeif they were wanted in connection with anycrime. Quoting from the case Fuller (Doris)v Attorney General presented in the Courtof Appeal of Jamaica, the trial judge foundthat “…[it]…was extremely hot due tocongestion. There was very little air availableand this was only accessible through smallholes in a metal door for the cell. The cell hadno windows and they were surrounded by aconcrete wall. Water dampened the floor andin order to quench thirst, perspiration andThe SystemCell checks, over-crowding and cell conditionStation Diary - ExtractCons#Ref#Hour Subject Nature of Occurrence Signature50 9:28pm PrisonerEscort[The police] escorted male Jamaican prisoner RM tothis location from the Hospital where the doctor gaveinstructions for said patient to visit the Orthopedicth of January 2012 and the[parish] Clinic on Wednesday 1st of February fordressing patients must also maintain collar untildoctor instruct otherwise.Cons#Ref#Hour Subject Nature of Occurrence Signature13 27 09:03pm PrisonerEscort[The police] escorted male Jamaican Prisoner RMfrom the Hospital to this location re: a case of M.O.B.[in the] he was handed over to [the Cell Guard] withinjuries to his head and left hand.51Cell Diary - Extract
52Searching for truth, striving for justicewater dripping from the walls had to be usedas no drinking water was made available forthem…one man had to drink his own urinein order to quench his thirst…” (page 54 of64)The morning following this experience,three prisoners died.In 2012, some 20 years since the AganaBarrett incident, there are still reports of se-vere overcrowding coupled with shortage ofstaff. According to Chapter III of theConstitution entitled Charter ofFundamental Rights and Freedom, Section13(6) “No person shall be subjected totorture or inhuman or degrading punishmentor other treatment.” Considering the entriesin station diaries, it would seem there iswidespread concern about the conditionsunder which prisoners are kept. Thesimilarity between this [the overcrowding]situation and the Agana Barrett case is thatthe conditions that exist in these lock-upspresently are sufficient to bring about a repeatof the tragedy of 1992. It is for this reasonthat efforts have to be made at the nationallevel to address the issues faced by thecountry’s lock-ups, despite financial and otherresource constraints.Often times in the media there are publica-tions of overcrowding in lock-ups. Amongthe more common reports of overcrowdingis the Mandeville lock-up where reports weremade as recently as November 26, 2010 in theGleaner about overcrowding. This reporthighlighted that the former Custos of Man-chester, Dr. Gilbert Allen, was alarmed at theconditions at the lock-up where eighty nine(89) detainees were being held in an area builtto accommodate thirty (30) people. The saidreport went on to mention that insects wereseen inside the cell with the prisoners. This inand of itself is problematic.These reports are made in the media in spiteof a publication in the Jamaica ConstabularyForce Orders dated May 7th, 1998, Serial No.2657, which quoted the then HonourableMinister of National Security and Justice assaying: “…As a matter of Policy no lock-upin the Island is to have within it, more per-sons than the number for which it was built.This is to be achieved within two weeks ofthe date of this letter.”This publication, which was made almost 14years ago, still remains relevant today. So inessence, most lock-ups are in breach of ForcePolicy. What must be noted, however, is thatlittle or no improvements have been made tomany of these lock-ups and so theinfrastructure is overburdened in housing somany prisoners. According to a Cell Diaryentry at one police station in Kingston wherethe problem of overcrowding is, arguably,chronic, one of the sub-officers remarked:“There is also the issue of the poor state oflock-up infrastructure that has been observedfor awhile now to be in an advance state ofdeterioration and requires urgent refurbishingto efficiently continue function as a placewhere humans are held against their will.”STRESS ON POLICEPolice personnel working under theseconditions, like prisoners, are extremelystressed and as the entries in the diariesindicate, worried about the implications ofthe overcrowding, poor infrastructure andshortage of staff. In the conclusion of thetour of duty one of the Cell Guardsremarked that “[t]hey [prisoners] made nocomplaint of any illness or hunger, only theheat due to the overcrowding” – two dayslater however, a prisoner died in the saidlockup.The Force Orders (Serial No. 2657) citedearlier highlighted that the Mandevillelockups had eight (8) cells and a suggestedcapacity of twenty-four (24) prisoners, whichmeans three (3) persons per cell. Similarly, thesame document showed that the DenhamTown Police Station had a capacity of thirty(30) prisoners having six (6) cells. However,of note was that on Monday February 13,2012, the Denham Town lock-up had onrecord eighty-three (83) prisoners. This wasalmost three times its capacity. Checks madein the Station Diary revealed a plethora ofentries speaking to overcrowding and staffshortage. Entries of this nature dated as farback as 2011. As quoted in an entry at theDenham Town Police Station entitled obser-vation:It is noticeable that the … lockups is over-crowded and also there is a shortage of staffproblem. Currently there is a total of seventyfive (75) male prisoners in custody beenguarded by two police personnel… If for anyreason or reasons there is any form ofdisturbance in the cell block the staff is notadequate to bring the situation under controlbecause this compromise the safety of themembers on duty and also the safety of pris-oners…Of note too is the fact that in anovercrowded cell, it is far easier forcommunicable diseases to be transmitted. Atthat point everyone is at risk, even more sothe person whose immune system is notresilient. Hence there is the constantcomplaint of outbreaks in lockups. Asrecently as June of this year, there was areport in the media of an outbreak at theDenham Town Police Station. What must bekept in mind at all times when viewing thesituations within a lockup is the right of theindividual – that is the protection grantedunder the Constitution from degrading andinhuman treatment. These are alsoInternational Standards that ought to beadhered to. At the end of the discussion themajor points that must be then borne in mindare the resource constraints and who hasresponsibility/authority to institute changesto make them better.CELL CHECKSChecks made of the cells were frequent andin general, were in keeping with Force Policyon Cell Administration which states “wherea person is arrested (at 1 and 4) and has to beplaced in a cell, the police shall visit such pris-oner once every half-hour and each visitrecorded in the appropriate registers”.The concern here raised is the extent towhich cells are actually checked when a visitis made. It was noted that there are caseswhere a person was found unresponsivesometimes minutes after a cell wassupposedly checked.INSPECTION OF LOCK-UPSAccording to information received duringthe course of this investigation cells areinspected by the Public Health Departmentsin the various parishes. They inspect theprisons and lock-ups to ensure that they areadhering to the minimum public health“…As a matter of Policy nolock-up in the Island is tohave within it, more personsthan the number for which itwas built. This is to beachieved within two weeks ofthe date of this letter.”
53Searching for truth, striving for justicestandards and are compliant with therecommendations of the inspectors. Thisinspection is done using the InstitutionalHealth Inspection Form, see Appendix B.The inspection takes into considerationaspects such as the presence or absence ofpests, and the presence or absence ofovercrowding and the safety measures thatare in place.The investigators made visits to a numberof lock-ups during the course of theinvestigation. In a number of cases there iscause for concern for the health, safety andsecurity of staff and prisoners.Requests have been made through the Min-istry of Health to access the Public HealthReports for the lock-ups, especially in caseswhere the investigators noticed that there wasa recurrence of deaths in custody over a shortperiod of time. There has been no responseto date.CONDITIONS INSIDE THE CELLThe data provided about prisoners who diein custody, and further checks in the StationDiaries, revealed that in more than oneDivision, prisoners who died in custody didso in the same cell, but at different times. Onvisits to the various Divisions, the specificcells were in a very deplorable state, as ishighlighted in the example in AppendixA. In the photograph in Appendix A, atleast three prisoners who were housedinside that were mentally ill died.ANALYSIS OF INVESTIGATIONREPORTS OF PERSONS WHO HAVEDIED IN CUSTODYAs part of this investigation theinvestigators were tasked with obtaining andanalyzing the investigation reports into thesedeaths in custody. To date attempts have beenmade to obtain same through theInspectorate Division of the JamaicaConstabulary Force. However, what wasprovided were some of the preliminaryreports that were sent off to theCommissioner of Police at the time the deathoccurred.The information contained in these reportsgenerally gives a synopsis of the prisoner toinclude when they were brought into custody,the offence for which they were charged, whothe arresting officer was, court appearancesand the history of events leading up to thedeath of the prisoner.This information certainly does notconstitute the entire investigation, but what itdoes in many cases is give information as towho was on duty at the time and any matterworth considering during the course of theinvestigation, for example, if the prisoner wastaken frequently to the hospital.What is clear having checked the preliminaryinvestigation reports and comparing theinformation in the Station and Cell Diaries, isthat there are disparities in some cases ofwhat actually took place. Hence, at face value,it is difficult to take these reports as the truestreflection of what took place without thefinal investigator’s report. In two casesanother prisoner was charged for the death incustody. This revelation led the investigatorsto request from the Inspectorate of theConstabulary further information as towhether or not anyone was charged for anyof the deaths in custody.COURT OFFICESIn the cases where contact was made withthe investigator, they did not possess a copyof their reports. All was put together in a fileand submitted for the Coroner’s Court. Inother cases, the investigating officer has sincebeen transferred to another Police Station orDivision. It is for this reason that theinvestigators took the route of requesting theinvestigation reports through the CourtsOffices.To date, all the Courts Offices where thesedeaths have occurred have been written to,with the exception of one. The investigatorsnow await word from the CourtAdministrators as to the outcome of thoserequests. nPhoto:Bing Images.
54Searching for truth, striving for justiceThe Commission humbly refers to theCommissioner of Police the followingrecommendations for action (S 17 (9) and 23of the Independent Commission ofInvestigations Act):1. Within 12 months, officers, sub-officersand constables in charge of stations orlockps, receive specialised training inassessing whether a remandee may besuicidal.2. Within 6 months develop and maintain asystem of compulsory assessment ofprisoners concerning their potential risk ofsuicide.3. Within 120 days all officers who are ormay be placed on cell guard duty shouldreceive some basic training in dealing withthe mentally ill.4. Issue an order within 120 days to allmembers of the Force and in particular, toofficers and sub-officers in charge oflockups requiring that:a. prisoners in cells be checked at least 4times in an hour where the assessment ofthe prisoner suggests a risk of suicide or theprisoner is ill.b. prisoners who are believed to be sufferingfrom mental illness be separated from otherprisoners and from each other.c. the cells of prisoners who are assessed aspresenting a risk of suicide be checked toensure that the prisoner does not have accessto any item (including clothing) with whichthe prisoner may harm himself.5. Issue an order within 60 days to allmembers of the Force and in particular, toofficers and sub-officers in charge ofstations and lockups requiring that recordsof prisoners in custody be properly kept andmonitored and in particular:a. An entry should be made by the officerhanding over a prisoner and also thereceiving officer to ensure that any specialinstructions are recorded.b. Station Diaries should state clearly, on adaily basis, the names of all prisoners in eachcell. This should include the name and/ornumber of the cell, the number or personsin the cell, the given names and alias(es) ofpersons in each cell. For example [Cell #1inside are Tom Strokes o/c Stokes, JohnBrown o/c Beg Beg].c. The diary should state the movement ofall prisoners from one cell to another makingnote of the date and time and by whom theywere removed.6. Issue an order within 60 days to allmembers of the Force and in particular, toofficers and sub-officers in charge ofstations and lockups requiring that prisonerswho are sick are taken to hospital at the ear-liest possible time for treatment and thatmedication is administered as directed by aphysician.nRecommendationsnDuring the period of our study, the majorityof the persons who died in custody sufferedfrom a mental illness.n The mentally ill persons who died in custodywere all kept in inhumane and inappropriateconditions. Where cells are reserved formentally ill persons, they are, more often thannot, the worst cells. At some stations, thementally ill persons shared cells with otherinmates.n In all the cases of mentally ill persons whocommitted suicide, there was infrequent orinadequate monitoring.nIn 25 per cent of the cases, death was byapparent suicide. The victims were foundhanging, often with ligatures formed from theirown clothing.n In the cases where death was caused byinjury or illness, the victims had complainedprior to death, but their complaints were notaddressed.nRisk assessment of the prisoners emotionalor psychiatric condition was not timely orcomprehensive.nFINDINGSTHE COMMISSION’S RECOMMENDATIONS
PART FOURSearching for truth, striving for justice
Searching for truth, striving for justiceAPPENDIX A
Searching for truth, striving for justiceFigure 1: Cell # 5 in Port Antonio Police Station.
Searching for truth, striving for justiceFigure 2: Cell # 5 in Port Antonio Police Station.
Searching for truth, striving for justiceFigure 3: Cell # 5 in Port Antonio Police Station.
Searching for truth, striving for justiceFigure 4: Pre-screening form used by the JCF to record health of prisoners.
1THE INDEPENDENT COMMISSION OF INVESTIGATIONS COMMISSION’S REPORTS LOGSHEETJUNE—DECEMBER 2012NO. COMPLAINANT ALLEGATION CONCERNEDOFFICERSTERMS OFREFERENCEINVESTIGATION RECOMMENDATIONOF THECOMMISSION1 TC The complainantalleges that on the12th day ofSeptember, 2011, hewas chased in anunmarked car by aconstable attached tothe Half Way TreePolice Station. Thatthe constable askedhim to produce hisfirearm booklet forinspection but herefused on theground that:(a) the constable didnot properly identifyhimself; and(b) the constable wasnot in a markedservice vehicle.The complainantfurther alleged thatConstable attachedto the Half WayTree Police Station;andCorporal attachedto the Half WayTree Police Station.To determine whether chargeof Illegal Possession ofAmmunition was justified inthe circumstances.To determine whether theofficers behaved in anunprofessional manner.13/09/2011 statement taken fromcomplainant and a file opened forinvestigation;19/09/2011 enquiries made of theFirearms Licensing Authorityregarding the licence holding detailsof the complainant;21/09/2011 Firearms LicensingAuthority responded to inquiries ofrelevant Investigator;29/09/2011 entries relevant to theinvestigation were extracted fromthe Station Diary of the Half WayTree Police Station;30/09/2011 statement taken from awitness that was travelling in thecomplainant‟s vehicle at the time ofthe incident;3/10/2011 Notices pursuant toSection 21 of the IndependentCommission of Investigations Actfor five (5) officer to furnish writtenNo criminal charges to belaid or disciplinary actionto be taken against theCorporal and Constablebut that they should bereminded to execute theirfunctions withoutmalicious intent or in anyother manner that wouldmalign the image of theJamaica ConstabularyForce.
2NO. COMPLAINANT ALLEGATION CONCERNEDOFFICERSTERMS OFREFERENCEINVESTIGATION RECOMMENDATIONOF THECOMMISSIONhe was thereaftertaken to the HalfWay Tree PoliceStation where he wascharged by aCorporal for IllegalPossession ofAmmunition andAssault at CommonLaw.statements to the Commission;4/10/2011 Notices delivered to theHalf Way Tree Police Station forservice on the five (5) officers;10/10/2011 statements of four(4)of the officers noticed furnishedwritten statements to theCommission;19/10/2011 investigator madecontact with complainant‟semployer with a view to procuringthe transcript of a conversation thecomplainant had with GuardsmanAlarms Limited;8/11/2011 copy of court file inrespect of charges laid against thecomplainant was furnished to theCommission;5/12/2011 Final InvestigationReport prepared by relevantinvestigator;3/7/2012 Firearm Users FeeCertificate furnished to theCommission by the Firearms
3NO. COMPLAINANT ALLEGATION CONCERNEDOFFICERSTERMS OFREFERENCEINVESTIGATION RECOMMENDATIONOF THECOMMISSIONLicensing Authority.2 SJ The complainantalleges that on the19th day of January,2010, his NissanPresea was seized bythe police owing tothe absence of validcertificates ofinsurance, fitness andregistration. That hemade an attempt toretrieve his vehiclefrom the TransportAuthority Pound buthe was hinderedfrom so doing by aSergeantmisrepresentinghimself as theSuperintendent ofPolice in charge ofthe Mandeville PoliceStation. That hemade a secondattempt to get his carout of the pound butConstable of theMandeville PoliceStation;Constable of theMandeville PoliceStation; andSergeant of theMandeville PoliceStation.To determine whether theticket was lawfully issued;To determine whether thevehicle was unlawfully seized;To determine whether thepolice had acted properly inhaving the vehicle detained ata place where thecomplainant would be put tocost to retrieve said vehicle;To determine whether thepolice could have releasedthe vehicle at an earlier date;To determine whether therewas any unprofessionalconduct on the part of theSergeant for which he shouldbe held responsible.8/11/2010 statement taken fromcomplainant and a file opened forinvestigation;16/02/2011 entries relevant to theincident were extracted from theStation Diary of the MandevillePolice Station;21/01/2011 copies of complainant‟sCertificate of Fitness and MotorVehicle Registration Certificate,Transport Authority ImpoundingForm and Vehicle InspectionChecklist furnished to theCommission;7/11/2011 Final InvestigationReport prepared.No criminal charges or tobe laid or disciplinaryaction taken against any ofthe three members of theJamaica ConstabularyForce against whom thecomplaint was made.
4NO. COMPLAINANT ALLEGATION CONCERNEDOFFICERSTERMS OFREFERENCEINVESTIGATION RECOMMENDATIONOF THECOMMISSIONby the time thepolice had signed offon the documents,the Pound fees hadescalated beyond anamount he couldafford.3 LH The complainantalleges that on 10thday of October, 2009the he was detainedat the Hunts BayPolice Station by aDetective Sergeantattached to theHunts Bay PoliceStation forapproximately twoand a half hours tofacilitate a discussionbetween himself andthe owner of anagricultural companyto whom he wasindebted. Thecomplainant is of theopinion that theDetective Sergeantshould not haveDetective Sergeantattached to theHunts Bay PoliceStation.To determine whether theDetective Sergeant hadbehaved in an unprofessionalmanner by intervening in acivil matter.23/03/2010 statement taken fromcomplainant and file opened forinvestigation;19/04/2010 PPCA Notification ofComplaint Letter prepared andserved on Superintendent in chargeof the Saint Andrew South Divisionand copied to the sub-officer incharge of the Hunts Bay PoliceStation and the concerned officer.No response was given.13/05/2010 statement taken fromcomplainant‟s friend who witnessedsome of the occurrences betweenthe complainant, the DetectiveSergeant and the owner of theagricultural company;2/11/2010 Notice pursuant toSection 21 of the IndependentCommission of Investigations ActNo criminal charges to belaid against the DetectiveSergeant;Departmental action to betaken against the DetectiveSergeant for violation ofSection 13 of theConstabulary Force Actand JCF Code of Conduct.
5NO. COMPLAINANT ALLEGATION CONCERNEDOFFICERSTERMS OFREFERENCEINVESTIGATION RECOMMENDATIONOF THECOMMISSIONintervened hisindebtedness to theowner of theagricultural companyis a civil matter.prepared for service on theDetective Sergeant requiring him tofurnish a written statement touchingand concerned the circumstancesthat led to the alleged detention ofthe complainant at the Hunts BayPolice Station;10/11/2010 the Detective Sergeantfurnished a statement to theCommission as required by theNotice;6/01/2011 a provisional FinalInvestigation Report prepared byInvestigator pending receipt offurther evidence;21/07/2011, entries were copiedfrom the Movement Diary and DutyForecast Book of the Hunts BayPolice Station to confirm whetherthe Detective Sergeant was on dutyon the 10th day of October, 2009 asalleged by the complainant;8/08/2011Investigator madeenquiries of agricultural company todetermine whether a debt betweenitself and the complainant existed;
6NO. COMPLAINANT ALLEGATION CONCERNEDOFFICERSTERMS OFREFERENCEINVESTIGATION RECOMMENDATIONOF THECOMMISSION17/08/2011 Notice pursuant toSection 21 of the IndependentCommission of Investigations Actprepared for service on theDetective Sergeant requiring him toattend Commission to answerquestions upon earth concerningalleged detention of thecomplainant;25/08/2011 agricultural companyfurnished information tosubstantiate existence of debt;30/08/2011 Section 21 Interviewconducted with the DetectiveSergeant;8/11/2011, investigation completedand full Final Investigation ReportPrepared.4 DH The complainantalleges that on the 8thSergeant of theMotorized patrolTo determine whether thecomplainant‟s allegations as13/07/2010 statement was takenfrom the complainant and a fileNo criminal charges to belaid or disciplinary action
7NO. COMPLAINANT ALLEGATION CONCERNEDOFFICERSTERMS OFREFERENCEINVESTIGATION RECOMMENDATIONOF THECOMMISSIONday of July, 2010 aSergeant attached tothe Motorized PatrolDivision assisted hisfiancée and landladyto evict him fromtwo rooms he wasoccupying.Division. to the misconduct of theSergeant has been made out.opened for investigation;01/12/2010 a Notice pursuant toSection 21 of the IndependentCommission of Investigations Actprepared to be served on theconcerned officer.;14/12/2010 the concerned officerfurnished a written statement to theCommission in compliance with thenotice;27/07/2011 further Noticeprepared and served on concernedofficer for him to attend a Section21 Interview; and31/07/2011 Section 21 Interviewconducted with the concernedofficer;15/11/2011 Final InvestigationReport Prepared by investigator.to be taken againstconcerned officer inrespect of complainant‟sallegations.Without prejudice areminder should be givento the concerned officerthat he should not as apolice officer be involvedin civil matters.5 JM Complainant allegesthat on 21/04/10 hewas stopped andticketed for notwearing seatbelt eventhough his seat beltSpecial Corporaland SpecialConstable attachedto the DarlingStreet PoliceTo determine whether theticket was lawfully issued;To determine whether thetreatment of complainantwhile detained conformed to10/04/10 statement taken fromcomplainant;30/04/10 station diary entriescopied;11/05/10 Notification of complaintDepartmental inquiry beheld to determine whetherconcerned officersbreached for policy asregards treatment of
8NO. COMPLAINANT ALLEGATION CONCERNEDOFFICERSTERMS OFREFERENCEINVESTIGATION RECOMMENDATIONOF THECOMMISSIONwas strapped acrosshis lower body. Thathe refused to taketicket and wasarrested and placedin custody andthereafter brought tohospital due toillness. That policeofficer tried to takehim away fromhospital on groundthat he would not begetting out-of-stationbailStation. JCF policy regardingtreatment of detainedpersons;To determine whetherconduct of Corporal andConstable at Hospitalbreached law or JCF Policy.letter sent to Commandant in chargeof the Island Special ConstabularyForce and Commander of DarlingStreet Police Station and toconcerned officers;20/07/11 Final Investigation Reportprepared.detained persons;Force policy regulatingprocedure for grating bailwas breached andconsequent disciplinaryaction if findings positive.7 CS The complainantalleges that he wasthe landlord of theconcerned officerwho threatened himand told himexpletives. That hewanted theconcerned officer toquit his premises.Corporal attachedto the Hunts BayPolice Station.To determine whether theCommission had thejurisdiction to investigate thecomplaint and, if not,whether any and what coursewould have been open to thecomplainant.17/11/2010 statement was takenfrom the complainant and a fileopened for investigation;20/01/2011 statement taken fromthe complainant‟s father;16/02/2011 Notice pursuant toSection 21 of the IndependentCommission of Investigations anddelivered for service at the HuntsBay Police Station;22/02/2011 Notice served onNo criminal charges to belaid or disciplinary actionto be taken againstconcerned officer.
9NO. COMPLAINANT ALLEGATION CONCERNEDOFFICERSTERMS OFREFERENCEINVESTIGATION RECOMMENDATIONOF THECOMMISSIONconcerned officer;02/03/2011 written statement wassubmitted by concerned officer;07/11/2011 Investigator prepared aFinal Investigation Report.8 EG The complainantalleges that on the 6thday of October, 2010a Special Corporalstopped his vehicleand told him that hehad one too manypassengers in thefront of his PublicPassenger Vehicle.That the SpecialCorporal told adriver behind him anumber of expletivesand that he was giventhe same treatmentwhen he told himthat that was not theway to behave. Thatthe Special Corporalgave him a ticket andSpecial Corporalattached to the HalfWay Tree transportCentre Police Post.To determine whether theticket in question waslawfully issued.To determine whether theSpecial Corporal contraveneda law or policy of the JamaicaConstabulary Force by failingto return the documents afterexamining them on the 6thday of October, 2010.To determine whether theSpecial Corporal breached apolicy of the JamaicaConstabulary Force by virtueof his alleged use ofinvectives to thecomplainant.8/10/2010 statement taken fromcomplainant and a file opened forinvestigation;15/10/2010 further statement wastaken from the complainant;15/06/2011 complainant wascontacted to provide his witness togive a statement to the Commission.30/04/2012 Final InvestigationReport prepared by Investigator.No criminal charges to belaid or disciplinary actionto be taken against theSpecial Corporal.
10NO. COMPLAINANT ALLEGATION CONCERNEDOFFICERSTERMS OFREFERENCEINVESTIGATION RECOMMENDATIONOF THECOMMISSIONretained hisdocuments until the14th day of October,2010.9 GS The complainantalleges that on the14th September,2012, he went to pickup his son when aSpecial Constable gotinto an altercationwith him whichresulted in him beingshot in the chest.Special Constableattached to 14Barnett Street,Montego Bay, St.James.To determine whethercriminal charges may be laidagainst the Special Constablefor shooting the complainanton September 14, 2012.15/9/12 statement taken fromcomplainant‟s mother and witnessto the incident;17/9/12 statement taken from three(3) witnesses to the incident andentry extracted from Station Diaryat Kingsvale Police Station,Hanover.19/9/12 statement taken fromcomplainant while in hospital;24/9/12 statement received fromconcerned officer;3/10/12 further statements takenfrom three (3) witnesses;8/10/12 Medical Certificate inrespect of complainant‟s injuriesreceived;2/11/12 Final Investigation Reportprepared.Concerned Officer to becharged with AttemptedMurder or wounding withintent in respect of secondshot fired at complainant;Concerned Officer to becharged with shooting withintent in respect of the firstshot he fired at thecomplainant;Concerned Officer to beput on interdiction orsuspension from the IslandConstabulary Forcepending the outcome of aprosecution.
11NO. COMPLAINANT ALLEGATION CONCERNEDOFFICERSTERMS OFREFERENCEINVESTIGATION RECOMMENDATIONOF THECOMMISSION10 CW o.b.o. JO Complainant allegesthat on August 3rd,2010, she was toldthat a constableattached to the MayPen Police Stationused his gun to hither son, JM on hisforehead over hiseyes, causing awound.Constable attachedto the May PenPolice StationNone; complainant havingintimated that she no longerwished to pursue complaintdue to family ties withconcerned officer.6/12/10 complainant contacted butfailed to answer her phone or returninvestigator‟s call;8/8/11 complainant contacted andshe expressed that she has nofurther interest in the matter.Complainant advised to attendCommission to complete prescribedWithdrawal Form. She did notattend.3/11/11 Final Investigation ReportPrepared.No criminal charges ordisciplinary action to betaken against concernedofficer.11 AA Complainant allegesthat she wasassaulted by aConstable after beingput in a car to betransported to theMontego Bay PoliceStation on a chargeof Possession of anOffensive Weapon.Constable thenattached to theMontego Bay PoliceStation but nowdeceased.To determine whetherconcerned officer could havebeen charged for Assault; andTo determine whether othermembers of the beat partycould be subject todisciplinary action.18/03/11 complainant‟s furnishedMedical Certificate to Commissionand statement taken from her;25/3/11 Section 21 Notice sent toconcerned officer for statement tobe furnished regarding the incident;Statement of concerned officerreceived on 3/5/11;11/4/11 statement taken from awitness to the incident;25/8/11 complainant withdrewcomplaint because concernedNo criminal charges ordisciplinary action to betaken against concernedofficer due to his death;Based on evidence inMedical certificate whichsubstantiated assault,disciplinary action shouldbe taken against two (2)members of beat partybecause they condoned theassault.
12NO. COMPLAINANT ALLEGATION CONCERNEDOFFICERSTERMS OFREFERENCEINVESTIGATION RECOMMENDATIONOF THECOMMISSIONofficer had died.9/02/12 Section 21 Notice sent toother members of the beat party toanswer questions upon oath;24/02/12 interview conducted withone member of beat party;24/04/12 interview conducted withone member of beat party;25/5/12 interview conducted withtwo members of the beat party.12 LM Complainant allegesthat on March 22,2010 three (3)policemen came toher home at theinstance of herlandlord for thepurpose of serving aNotice to Quit onher. One Constableentered her home inher absence andinvaded the privacyof her children.Constables attachedto the May PenPolice Station.To determine whether theconstables breached a law ora policy of the JCF by actingas they did in relation to thecomplainant on 22/03/10.7/9/112 statement of complainanttaken;14/10/10 statement obtained fromone concerned officer;17/10/10 statement obtained fromone concerned officer;18/10/10 statement obtained fromthird concerned officer;28/10/10 statement taken fromcomplainant‟s landlord;11/11/10 statement received frommember of the JCF to whom theNo criminal charges to belaid against two (2) ofconcerned officers inrespect of complaint; therebeing no evidence tosuggest that they actedoutside the scope of theirauthority; andDisciplinary action betaken against concernedofficer who entered thehouse of the complainant.
13NO. COMPLAINANT ALLEGATION CONCERNEDOFFICERSTERMS OFREFERENCEINVESTIGATION RECOMMENDATIONOF THECOMMISSIONcomplainant and her children madea report and pointed out one of theconcerned officers;29/12/11 Final Investigation Reportprepared.13 KALL Complainant allegesthat on 9/3/11sheattended theMandeville PoliceStation where theSuperintendentthreatened to kill her.Further on 18/3/11while in Mandeville aconstable uttered athreat upon the lifeof her brother in herpresence.Superintendentattached to theMandeville PoliceStation; andConstable attachedto the MandevillePolice StationTo determine whetherSuperintendent‟s wordsamounted to a threat and, ifso, whether criminal chargesmay be brought against himor internal disciplinarymeasures taken;To determine whether theconstable‟s words amount toa threat on the life of thecomplainant‟s brother.21/3 11 complainant gave statementto Commission;11/4/11 Section 21 Notice sent toSuperintendent and Constableattached to Mandeville PoliceStation;11/05/11 complainant signed theprescribed Withdrawal of ComplaintForm indicating that she has nofurther interest in the complaint;24/5/11 Final Investigation Reportprepared.No criminal charges to belaid or disciplinary actionto be taken againstSuperintendent orConstable.14 GB Complainant allegesthat on 01/10/11 hewas stopped by aSpecial Sergeant anda ticket written forfailure to use hisindicator. He wasasked to sign theNot identified ofDarling StreetPolice Station.To determine whether thecomplainant‟s arrest waslawful and, if so, whethermore force than necessarywas used in effecting it; andTo determine whetherdisciplinary action could be3/10/11 complainant attended theCommission and gave a statement;4/10/11 complainant withdrewcomplaint on ground that hecommunicated with thesuperintendent in charge of theDarling Street Police Station andNo criminal charges ordisciplinary action to betaken against any memberof the ISCF attached to theDarling Street PoliceStation as complainantindicated that he had nodesire for investigations to
14NO. COMPLAINANT ALLEGATION CONCERNEDOFFICERSTERMS OFREFERENCEINVESTIGATION RECOMMENDATIONOF THECOMMISSIONticket without beingable to read it. Thecomplainant refusedand the SpecialSergeant refused toreturn hisdocuments. TheSpecial Sergeant thenshoved thedocuments oncomplainant causinghis Driver‟s Licenceto fall. While bendingdown to pick up hisDL the SpecialSergeant threw theticket at him whichfell. The SpecialSergeant thengrabbed his pants inthe waist and toldhim that he would becharged for littering.taken against the concernedofficers on account ofunbecoming conduct hadthey been identified.had been satisfied by same.6/10/11 Final Investigation Reportprepared.continue.15 DD o.b.o. KW Complainant allegesthat her son on9/12/09 the policedetained her son atthe GreaterPortmore PoliceUnidentified of theGreater PortmorePolice Station.Whether detention of9/12/09 was unlawful; andWhether behaviour ofunidentified officer towardscomplainant on 14/12/1021/12/10 statement taken fromcomplainant;Many attempts were made tocontact complainant from 4/1/11to16/2/11 which proved futile;No criminal charges ordisciplinary action be takenagainst any member of theJCF in respect of thecomplaint as:
15NO. COMPLAINANT ALLEGATION CONCERNEDOFFICERSTERMS OFREFERENCEINVESTIGATION RECOMMENDATIONOF THECOMMISSIONStation where he washeld in custody forten (10) days withoutbeing charged. Hewas against takenaway on December14, 2010 along withanother of her sons.When she went tothe GreaterPortmore PoliceStation, a policeofficer told her toleave and that if shecame within 100 feetof the station hewould tear gas her.could amount to conductunbecoming.18/2/11 checks mad