Court Rules That Full Investigations Into Police Misconduct Necessary Prior to Promotions
On March 25, 2019, Jamaica’s highest Court of Appeal, The Judicial Committee of the Privy Council delivered a landmark judgement in a case filed by Jamaicans for Justice (JFJ) against the Police Service Commission (PSC) challenging the promotion of an officer, involved in dozens of alleged unlawful killings, to the senior ranks of the police force. The Court’s decision held that the Police Service Commission, in discharging its statutory functions, has a duty to conduct investigations or to instruct that investigations be conducted into allegations of human rights violations in relation to police officers who are recommended for promotions, especially in instances where there are allegations of police killings.
This ruling had major implications for how officers are promoted, and on April 18, less than a month after the decision, the Minister of National Security, Hon. Dr. Horace Chang, announced broad sweeping revisions to the process of promotions within the Jamaica Constabulary Force (JCF).
JFJ launched this legal challenge in response to a systemic problem of promoting police officers against whom there were/are allegations of misconduct to senior ranks within the Jamaica Constabulary Force, which undermines attempts at police reform and taints the promotion process within the police force. The legal challenge sought to establish in jurisprudence that the Police Services Commission is legally required to seek and consider reports of human rights violations against officers when considering an officer’s promotion – something the Police Service Commission argued it was not legally required to do.
JFJ thanks its legal team for their commitment to this litigation process including John Clarke, Richard Small, Philip Dayle and Hugh Southerly who played varying roles over the course of this appeal.
Background to the Appeal
In October 2017, JFJ filed a legal challenge at the Privy Council against the Police Services Commission (PSC) regarding its decision to promote Superintendent Delroy Hewitt, a police officer known to be involved in serious human rights violations, to the rank of Senior Superintendent, one of the most senior positions within the Jamaica Constabulary Force. The litigation was grounded in concerns about the failure of the PSC to consider the allegations of extrajudicial killings linked to Supt Hewitt, who was ultimately promoted to the rank of Senior Superintendent on the recommendation of the Police Commissioner.
The main issue arising in the appeal was whether the PSC, as the entity tasked with deciding on the promotion and discipline of police officers, properly enquired into the conduct of officers recommended for promotion, given Jamaica’s longstanding problem of police abuse.
Lower Courts Overruled
This decision from the Privy Council has overruled the decisions of the Supreme Court and Court of Appeal, who did not find that the Police Services Commission failed to discharge their legal duty to conduct, or to instruct another entity to conduct, independent, impartial and effective investigations into an officer’s misconduct when they are being considered for a promotion.
Though Jamaica’s Court of Appeal in 2015 agreed with some of JFJ’s arguments about the seriousness of the allegations, they declined to reverse the decision of the Police Service Commission on the basis that its decisions were not deemed to be so unreasonable that it produced an absurdity – which the Court decided was the requirement in law for Judicial Review of the Police Service Commission’s decision. In 2017, JFJ appealed these decisions with the hope of establishing new jurisprudence which would strengthen the obligation of the state, through the Police Service Commission, to properly investigate human rights violations committed by police officers and hold derelict officers accountable.
Privy Council Declarations will reform promotion process within the JCF
The Privy Council handed down the following binding legal declarations stemming from the ruling on April 10.
- The Police Services Commission must exercise its functions in a manner which is compatible with fundamental rights including the right to life, the right to equality before the law and the right to due process of law
- The Police Services Commission has a duty at common law to initiate inquiries and call for an independent investigation into allegations of police misconduct, when considering the promotion of a police officer
- Since the Independent Commission of Investigations Act 2010 (which came into effect from 15 April 2010) and the INDECOM was established as a body to independently investigate allegations of police misconduct, INDECOM is the body to which the Police Service Commission must turn to conduct independent investigations into allegations of police misconduct.
These Declarations will set a new precedent and will aid in the longstanding attempts to reform how police are promoted within the Jamaica Constabulary Force.
Executive Director for Jamaicans for Justice, Rodjé Malcolm notes that “An essential part of reforming the police force is ensuring that only law-abiding and honest officers are promoted to senior ranks of authority. This court ruling sets new legal precedent that will replace the practice of promoting officers accused of involvement in unlawful killings with a practice of only rewarding and elevating honest, law-abiding officers to the senior ranks of our nation’s police force. We look forward to working with the authorities to implement the anticipated declarations and to aid in monitoring their adherence as we move forward together.”