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THREATS TO FREEDOM: CRIME FIGHTING PREVENTATIVE DETENTION & POWERS OF ARREST

Benjamin Franklyn once wrote; “They who can give up essential liberty to obtain a little temporary safety deserve neither liberty nor safety.” It may well be argued that this view is the platform from which all arguments flow against preventative detention and powers of arrest given to law enforcement officers. Within this context it behoves all of us who are stakeholders in our justice system and believe in the supremacy of our Constitution to examine objectively whether crime fighting, preventative detention and powers of arrest given to law enforcement officers represent a threat to our freedom.

In its latest report, the Unites States Department of State (Crime and Safety Report on Jamaica – 2017) noted that:

“Although the country has made recent progress in controlling debt and improving the business environment Jamaica’s historically low rate of economic growth, high unemployment rate (12.9%) and high debt burden exacerbate challenges with allocating resources to combat

criminality

and

identifying

productive

alternatives for the under employed”.

The report noted that our law enforcement officers were only able to make arrests in fifty four percent (54%) of homicides annually with a conviction rate of seven percent (7%).

One cannot over emphasise the point that Jamaica’s crime rate is at an intolerable level.

The announcement therefore of the Jamaican Government’s

intention in February this year to employ preventative detention as part of its crime 1|Page

fighting strategy was therefore understandable, but in some quarters seen as a threat to rights and freedoms of our citizens. Such a threat however is not grounded in law.

Indeed, the concept of preventative detention does not represent anything new.

The Charter of Fundamental Rights and Freedoms within our Constitution expressly provides for preventative detention.

Section 14(1)(f)(ii) under our Charter states on reasonable grounds in accordance with fair procedures established by law, a person can be deprived of his liberty “where it is reasonably necessary to prevent his committing an offence.�

Quite apart from our Constitution which assumes supremacy in terms of law, Section 5(2) of the Domestic Violence Act of 1998, Section 15 of the Child Care and Protection Act, 2005, and Section 15 of the Mental Health Act, 2001 all have concepts of preventative detention. For example, Section 15 of the Child Care and Protection Act gives the power to a Constable to detain a person for whom he has reasonable grounds to believe that that person will abscond from lawful process. Section 15 of the Mental Health Act provides for the arrest (without a warrant) of any person by Constable where the Constable forms the belief that such a person is mentally disordered. No crime in all examples cited need to have been committed. Arrests in these circumstances are toward crimes being prevented or those not yet committed.

Not surprisingly, such arrests or detention have been tested in Court. In this regard, reference can be made to the recent decision of R v. (on the Application of Hicks & Others)(Appellants ) v. Commissioner of Police for the Metropolis (Respondent) [2017] UKSC 9. While acknowledging the fundamental principle of the need to protect the individual from arbitrary detention, the court noted that the law should not be interpreted in such a way as would make it impracticable for the police to perform their duty to maintain public order and protect the lives and property of others. In that case, the Appellants were detained by the police on the basis that there was 2|Page

reasonable belief that their detention was necessary for the prevention of an imminent breach of the peace. The court ruled that the police were well justified in so acting in law and such conduct on their part was permissible.

In all the circumstances the legitimacy of crime fighting measures in the way of preventative detention cannot be questioned and appear intended towards the protection of the freedoms of the majority. This being said however, the threat of freedom is not without merit, where the police base their detention of persons not on reasonable suspicion or simply malice. The manifestation of this is seen easily in the plethora of civil claims against the Government for malicious prosecution and false imprisonment.

In the recent decision of Blake, Jervis v. Attorney General of Jamaica consolidated with Black, Simone v. Attorney General of Jamaica et al [2016] JMSC. Civil 159 reference was made to the dicta of Harris J in Herwin Fearon v. Attorney General for Jamaica and Constable Brown Claim No. 1990/F-046 where he said:

“However, even if the initial detention is justifiable, the period of detention ought not to be unduly long. If the detention is found to be longer than justifiable then this could

amount

to

unreasonable

delay

and

consequently result in false imprisonment, as it would be demonstrative of absence of reasonable and probable cause�.

The reality is that with an increased emphasis on the practice of preventative detention comes an increased risk of higher levels of detention which are rooted in malice or without reasonable and probable cause.

In this regard our legitimate

freedom is undeniably threatened. Within this content, the tendency is always either 3|Page

to detain for inordinate periods and release; or detain, charge and then investigate.

Whichever approach is utilized by the police represents an abuse of their powers and an injustice to the citizen.

Indeed, the approach of detain, charge and then

investigate, contributes immensely to the backlog of cases in our Courts as such cases drag on for months without any firm trial dates while investigations continue.

The simple solution, it would seem, is to devise a system which itself prevents the necessity of resorting to the concept of preventative crime detention. Against this background, reference can be made to what obtains in other neighbouring countries.

In the Cayman Islands, for example, the police is given the power under their Bail Law of 2015 to impose reporting conditions upon a person while that person enjoys his/her freedom until the completion of an investigation. At the end of the investigation the person is then placed before the court for consideration of bail, settlement of legal representation or an agreement of a trial date. In that jurisdiction multiple mention dates before the court for completion of police investigation are unheard of. There is no good reason why with the consent of a person such a situation could not obtain in Jamaica.

Indeed, in practice, very often for example at the Fraud Squad case

involving a degree of complexity are investigated while the suspects voluntarily submit their travel documents as an act of good faith and demonstration on their part that they do not present a flight risk. As such, these persons are afforded their continued liberties without resort to the bad custom of arrest and detention while investigations continue. At the end of the investigations, the persons are then required to surrender into the custody of the police. In such a situation, the issue of bail either at the level of the police station or the court becomes easier to obtain based on the good faith shown by such persons in the surrendering of their passports and corporation in their attendance at the station.

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It is time for us to adapt the Caymanian approach in Jamaica by making the necessary amendments to our Bail Act. Until then, the legitimate freedoms of citizens will be threatened with the increased emphasis on preventative detention and powers of arrest as crime fighting measures.

Dated this 14th September, 2017

__________________________________ Peter Champagnie

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