SafeguardingtheRight toLife:Issues from Investigations of Jamaicas SecurityForcesin 2012
ncjvjSearching for truth, striving for justice
Searching for truth, striving for justiceINDECOM OFFICESOpening HoursMon–Thurs 9:00-3:30 p.m./Fri. 9:00-2:00 p.m.HEAD OFFI...
March 29, 2013The Honourable Speaker of the House of RepresentativesMr. Michael PeartGordon House81 Duke StreetKingstonAtt...
Searching for truth, striving for justice
Searching for truth, striving for justiceTable of ContentsCommissioner’s Message iDirectors of Complaints – INDECOM Jamaic...
Searching for truth, striving for justicePART FOURAPPENDIX A(ON COMPACT DISC - CD):CLOSED AND CURRENT INVESTIGATIONS:COMMI...
Searching for truth, striving for justice
Jamaica has for some time maintainedan average of about two hundred(200) persons being killed each yearby members of the s...
Searching for truth, striving for justiceINDECOM’s Directors of ComplaintsMr. Nigel Morgan, JP.Jurisdiction: Kingston, St ...
The Independent Commission of Investigations currentlypresides over 1,600 cases, inclusive of fatal and non-fatalmatters. ...
vhowever, vary according to the Division in which it occurrs; forexample, Areas Two and Three accounted for 90 per cent of...
Searching 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...
2Searching for truth, striving for justiceTHE RIGHTThe Constitution of Jamaica (as amended by the Charter ofFundamental Ri...
3Searching for truth, striving for justiceJamaica Defence Force (the JDF). This authority would have to beempowered to eff...
4Searching for truth, striving for justiceP219 (asalitytaFceoliP 31, 2012)c.et Da 31, 2012)lyuJgAutpSetOcvoNcDeanJbFerchMa...
OVERVIEWEfforts continue to ensure that the investigation of homicidesallegedly caused by agents of the State accord with ...
6The situation is not always bleak as, in a handful of cases, JCFsupervisory officers cause involved officers to remain at...
and capable of withstanding scrutiny.” [Emphasis added]The Commission notes that the JCF’s Use of Force Policy andthe Chie...
8acknowledge that the JCF’s deployment strength may suffer ifsignificant numbers of personnel are withdrawn from active du...
Chapter 3: Use of Deadly Force9Searching for truth, striving for justice"[I]f persons who are pursued by these officers fo...
Interestingly, in all the cases investigated the constable claimed thatthe fleeing suspect was a threat to him and that he...
11Searching for truth, striving for justiceReasonable suspicion is a relatively low test normally employed tojustify an ar...
he proposes to discharge a firearm where other persons than a fugitivemay be located.”These two (2) Jamaican first instanc...
an arrest remain analogous. Most importantly, the 2008 clarification,having been promulgated to reflect “right to life” pr...
14Searching for truth, striving for justicethere is sufficient legal and contextual similarity to expect that theywould be...
COMMISSIONER OF POLICE1. The Commission humbly refers as recommendations for action(pursuant to s. 17(9) and 23 of the Ind...
16Searching for truth, striving for justicei) Communications during the continuation of anoperation to further the legitim...
Reference Notes1. Paragraphs 35-35 and 141-1432. Principle 223. Page 484. Demanding Accountability, 7.5. R (on the applica...
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 s...
20Searching for truth, striving for justiceMENTALLY ILL - DCBackground informationDC, who is from the parish of St. Ann,ex...
INDECOM Report - Safeguarding the Right to Life
INDECOM Report - Safeguarding the Right to Life
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INDECOM Report - Safeguarding the Right to Life
INDECOM Report - Safeguarding the Right to Life
INDECOM Report - Safeguarding the Right to Life
INDECOM Report - Safeguarding the Right to Life
INDECOM Report - Safeguarding the Right to Life
INDECOM Report - Safeguarding the Right to Life
INDECOM Report - Safeguarding the Right to Life
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INDECOM Report - Safeguarding the Right to Life
INDECOM Report - Safeguarding the Right to Life
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INDECOM Report - Safeguarding the Right to Life

  1. 1. SafeguardingtheRight toLife:Issues from Investigations of Jamaicas SecurityForcesin 2012
  2. 2. ncjvjSearching for truth, striving for justice
  3. 3. Searching for truth, striving for justiceINDECOM OFFICESOpening HoursMon–Thurs 9:00-3:30 p.m./Fri. 9:00-2:00 p.m.HEAD OFFICE:1A Dumfries RoadKingston 10Telephone: 1.876.968.1932/1.876.968.88751.876.920-2324. Fax: 1876.960.4767CENTRAL REGIONAL OFFICE:1A Brumalia RoadCobblestone Professional Centre - Unit 10Mandeville, ManchesterTelephone: 1.876.961.1542/1.876.961.41711.876.961.1542. Fax: 1.876.962.3419WESTERN REGIONAL OFFICE:Praise Concourse Plaza18 Queens Drive, Montego BaySt. JamesTelephone: 1.876.940.2310Fax: 1.876.940.2310ST THOMAS SATELLITE OFFICE32 Queen’s Street (Property of Coke Methodist Church)Telephone: 1.876.968.7488 (Fridays 9:30-3:30 only)WESTMORELAND SATELLITE OFFICESavannah-la-Mar Methodist ChurchGreat Georges StreetTelephone: 1.876.940.2310 (Wednesdays 9:30-3:30 only)Email us @ info@indecom.gov.jmNEW TOLL FREE INCIDENT AND TIP LINES1.888.935.5550 (D) OR 1.888.991.5555 (L)
  4. 4. 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
  5. 5. Searching for truth, striving for justice
  6. 6. 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
  7. 7. 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
  8. 8. Searching for truth, striving for justice
  9. 9. 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
  10. 10. 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
  11. 11. 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
  12. 12. 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
  13. 13. Searching for truth, striving for justice
  14. 14. PART ONE:THE RIGHT TO LIFESearching for truth, striving for justice
  15. 15. 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.
  16. 16. 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. [88]; andb. The BSI’s investigations were below the minimuminternational standards required. (See the MinnesotaProtocol). [85][86][90][91].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.”
  17. 17. 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. [94]In Gerville Williams et al v The Commissioner of INDECOM[2012] 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. [130] – [132]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”. [232],[366]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 [321]-[325]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.[329];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. [330];c) the independent investigator did not start his work until 15hours had elapsed.[334];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 [335];e) supervision of the investigators by another party (e.g. theProsecuting Service) could not render the investigation independent.[337] 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. [338]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
  18. 18. 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. [342] – [346]As investigative files may contain sensitive information, it is not arequirement of the right to life that the investigator satisfies everyrequest for disclosure. [347]- [350]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. [353]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 [2008] 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
  19. 19. 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
  20. 20. 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
  21. 21. 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
  22. 22. 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
  23. 23. 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
  24. 24. 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
  25. 25. 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.
  26. 26. 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
  27. 27. 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 [2003] 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.
  28. 28. 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.
  29. 29. 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.
  30. 30. 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
  31. 31. Reference Notes1. Paragraphs 35-35 and 141-1432. Principle 223. Page 484. Demanding Accountability, 7.5. R (on the application of Tucker) v.IPCC [2008] EWHC2372 (Admin)paragraphs 38 and 39.6. 3rd Edition 2011.7. Cetin v. Turkey [2009] 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 [1970] AC 94213. O’Hara v. Chief Constable of theUlster Constabulary [1997] 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 [1947] AC 57317. Taylor v. Chief Constable of ThameValley Police [2004] 3 ALLER 50318. Abassy v. Commissioner of Police ofthe Metropolis [1990] 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. [1998] AC 13032. [1971] 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. [2004] UKPC 34 following Reyes v. R[2002] UKPC 1146. Van Colle v. Chief ConstableHertfordshire [2007] EWCA Civ 32547. JCF Use of Force Policy, paragraph 14Searching for truth, striving for justice17
  32. 32. PART TWO:DEATH OF THE MENTALLY ILLWHEN INCONFRONTATIONWITH SECURITY FORCESSearching for truth, striving for justice
  33. 33. 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
  34. 34. 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

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