INDECOM Act amendments to indemnify staff for 2010-2018 prosecutions/arrests

CHANGES are coming to the Independent Commission of Investigations (INDECOM) Act, to give legal cover to the body and its staff for prosecutions and arrests made between July 2010 and March 2018, as well as to authorise the security forces to serve summons on members on behalf of the commission.

The amendments, if approved, will also empower INDECOM to share information with entities such as the Office of the Director of Public Prosecutions, the police and the army.

Justice Minister Delroy Chuck brought the 2023 INDECOM (amendment) Bill to the House of Representatives on Wednesday, explaining that it will address legal and practical concerns for the commission. Debate on the Bill was put off to the next sitting of the House, as requested by leader of Opposition business, Phillip Paulwell, who noted that members needed time to reflect on the provisions.

The amendments protect the commissioner and staff of the commission against liability for arrests and prosecutions undertaken in good faith between July 29, 2010, and March 16 2018, as well as empower the commission to initiate or continue an investigation, even if criminal proceedings are underway.

Explaining the reasons for the Bill, Chuck reminded that from inception, the commission operated on the premise that it had powers to arrest, charge and prosecute members of the security forces, until in 2013 when the Jamaica Police Federation challenged this practice in the Full Court.

“At that point, the commission ceased this practice. However, the Full Court, in its 2014 judgement, ruled that the commission indeed had the power to arrest, charge and prosecute members of the security forces. Upon the judgement of the Full Court in 2014, the commission resumed exercising prosecutorial powers,” he outlined.

However, the federation appealed the ruling and in 2018 the Court of Appeal ruled that the commission did not have the power to arrest, charge and prosecute members of the security forces.

“At this point, the commission desisted exercising prosecutorial powers. The matter was appealed to the Judicial Committee of the Privy Council, who in 2020, affirmed the Court of Appeal’s ruling. In its judgement on May 4, 2020, the Privy Council pronounced that the commission’s role, pursuant to the INDECOM Act is investigative and does not confer any express or implied powers on the Commissioner, the Commission or its staff to prosecute incident offences,” Chuck advised the House.

He stressed that the decision of the Judicial Committee of the Privy Council had therefore highlighted the need to validate and indemnify the disclosure of information provided in good faith by the commission, and its employees for arrests executed and prosecutions initiated or conducted in good faith for the period from the commission commenced its work, to the 2018 decision of the Court of Appeal.