Commissioner of the Independent Commission of Investigations v Police Federation and others

A statutory investigative body has only those powers conferred expressly or impliedly by its enabling legislation. A power to prosecute incident offences cannot be implied where the statutory scheme assigns investigation to the body and prosecution to the Director of Public Prosecutions. The Commission nevertheless has an implied power to prosecute offences under section 33 of the Independent Commission of Investigations Act 2010, because those offences protect and facilitate its investigations. The Act does not abrogate private prosecutions by individuals, but its confidentiality provisions make private prosecution of an incident offence by the Commissioner or Commission staff practically impossible. Statutory directions requiring production and preservation of evidence must be obeyed. Superior orders and misunderstanding legal responsibilities do not constitute lawful justification or excuse.

Two appeals from the Court of Appeal of Jamaica concerned the powers conferred by the Independent Commission of Investigations Act 2010.

The first appeal concerned whether the Commission, its Commissioner or investigative staff could initiate prosecutions for offences arising from incidents investigated by the Commission, either officially or as private citizens. The second concerned a private prosecution under section 33 against a police officer who had failed to surrender firearms for processing during an investigation, and whether superior orders, uncertainty or mistake provided lawful justification or excuse.

The Court of Appeal held that the Commission itself could not prosecute incident offences, but that private prosecutions were not abrogated. It also allowed the second appeal against conviction. The central issues before the Board were the scope of implied statutory powers, the continuing common-law right of private prosecution, and the meaning of lawful justification or excuse.

1. Disposition. The Indecom appeal was dismissed. The Diah appeal was allowed, the convictions were restored, and the matter was remitted to the Court of Appeal for further consideration of the appeal against sentence.
2. The Commission was a quasi-corporation sole. Although unincorporated, it was a distinct statutory entity. Its powers were limited to those conferred directly or indirectly by the Independent Commission of Investigations Act 2010 or other relevant legislation. It did not possess the general capacity of an ordinary individual.
3. The Act’s long title and section 4 established an investigative, not prosecutorial, function. Section 20 conferred constable-like powers only for the investigative purposes identified in sections 4, 13 and 14. The scheme’s repeated allocation of functions to the Director of Public Prosecutions, including under sections 10(3), 17(10), 18(3) and 25, was incompatible with an implied power to prosecute incident offences.
4. By necessary implication, the Commission could prosecute offences under section 33. Those offences were closely related to, and intended to protect and promote, the effective performance of its investigative functions.
5. The Act did not abrogate the common-law right of individuals to bring private prosecutions. However, section 28 prohibited the Commissioner and Commission staff from using or disclosing investigative material in a private prosecution for an incident offence. Such use could itself constitute an offence under section 33(c). The Board therefore considered such a prosecution practically impossible.
6. Under sections 4(2), 21(1) and 22, read with the Commission’s Directions as a whole, investigators could control and preserve evidence and require production of firearms. The instructions given to the respondent were not ultra vires. His misunderstanding of his legal responsibilities was a mistake of law and could not amount to lawful justification or excuse. A superior officer could not lawfully direct him to disobey the Commission’s requirements.

1. Privy Council: Dismissed the Indecom appeal. Allowed the Diah appeal, restored the convictions and remitted the sentence appeal.
2. Court of Appeal of Jamaica: On 16 March 2018, reversed the Supreme Court in part. It held that the Commission could not prosecute incident offences, but that private prosecutions were not abrogated. In the Diah appeal, a majority allowed the appeal against conviction and sentence.
3. Supreme Court of Jamaica (Full Court): On 30 July 2013, dismissed the claim and held that the Commissioner and investigative staff had powers to arrest, charge and prosecute at common law.