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Jamaican Bar Association 7th Annual Weekend Conference, November 16-19, 2017

Threats to Freedom: Crime Fighting, Powers of Arrest and Preventative Detention Presented by: Mrs. Marlene Malahoo Forte, QC, MP, JP, The Attorney General

Introduction In the face of increasing and more dynamic threats to citizen security, governments are being forced to consistently revise and intensify their crime fighting strategies. The need for more robust crime fighting measures is even greater in Latin American and Caribbean countries which lead the world in homicide rates. Increased criminal activities pose a threat to national economic development, social equality and justice and as such receive priority attention in many States.

Jamaica has been experiencing particularly high homicide rates for quite some time now.

Successive Governments have implemented a variety of measures to address this trend.

The measures have included greater powers of arrest, cordon and search operations, increased prominence in the use of preventative detention and, more recently, the enactment of legislation that allows for the designation of specially affected areas as Zones of Special Operations.

The deployment of more stringent crime fighting measures will inevitably engender discussions on the delicate balance between the need to legislate for the peace, order and good governance of the society as envisaged by section 48(1) of the Jamaican Constitution and the continued observation of fundamental rights and freedoms that are enshrined in the Constitution and reinforced by Jamaica’s ratification of various international human rights treaties.

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This paper will firstly expound on the duty of a State to combat threats to freedom that may arise in its deployment of crime fighting measures. It will then briefly examine the scope of the right to liberty and freedom of movement. Following that, this paper will outline the common law and statutory powers of arrest in Jamaica including the constitutional safeguards for the lawful exercise of those powers of arrest. The discussion on powers of arrest will also transition to a greater focus of preventative detention as a crime fighting tool. Finally, the paper will end with an examination of these powers of arrest and detention within the purview of the recently passed Law Reform (Zones of Special Operations) (Special Security and Community Development Measures) Act.

I.

Duty of the State to Combat Threats to Freedom

The preamble to Charter of Fundamental Rights and Freedoms (the ‘Charter’) affirms that: “the state has an obligation to promote universal respect for, and observance of, human rights and freedoms.”

This provision of the Charter signals that the State has both a negative obligation to refrain from violating the rights granted to persons under the Charter, and a positive obligation to take measures to ensure that these rights are respected and upheld. Furthermore, the Charter makes it clear that the fundamental rights and freedoms therein are to be upheld by all persons – including non-state individuals. This is outlined in section 13(1)(c), which provides that “all persons are under a responsibility to respect and uphold the rights of others” and section 13(5), which states that “a provision of this Charter binds natural or juristic persons, if, and to the extent that, it is applicable taking account of the right and the nature of any duty imposed by the right.” The provisions of section 13 underscores some of the responsibilities of natural persons that are attendant to Charter rights by providing that there is a duty of citizens to ensure that their actions, including the exercise of their Charter rights, do not infringe on the rights of others.

In addition to the provisions of the Constitution, Jamaica is Party to several international human rights instruments, most significantly for the purposes of this discussion, the 2

International Covenant on Civil and Political Rights (ICCPR) and the American Convention on Human Rights (ACHR), and is obliged under international law to respect the civil and political rights expressed in those instruments. Under international human rights law, a State has a threefold responsibility in respect of its obligations under international human rights instruments to which it is Party. This comprises the duty to: (i) respect, (ii) protect, and (iii) fulfil human rights. The obligation to respect means that States must refrain from interfering with or curtailing the enjoyment of human rights. The obligation to protect requires States to protect individuals and groups against human rights abuses. The obligation to fulfil means that States must take positive action to facilitate the enjoyment of basic human rights. It is understood that the positive obligations on States Parties to ensure human rights will only be fully discharged if individuals are protected by the State, not only against violations of treaty rights by its agents, but also against acts committed by private persons or entities that would impair the enjoyment of such treaty rights in so far as they are amenable to application between private persons or entities.1 From the provisions of the Charter and general principles of international human rights law, it may be posited that as part of its positive obligations vis-Ă -vis fundamental rights, the State must take measures to combat the acts of private individuals that have the effect of threatening the fundamental rights and freedoms of others. It is beyond debate that rampant criminality, the high incidence of murder and other violent crimes, and gang warfare are a direct threat to the fundamental rights and freedoms that all persons in Jamaica are entitled to, particularly the right to life, liberty and security of the person. It is also recognized that the rule of law requires measures to ensure adherence to the principle of accountability to the law, and that for the rule of law to exist, there must be public order such that the lives, property, freedoms, and rights of individuals are protected, criminal violence is reduced to a minimum, and criminal elements are pursued, arrested and

United Nations Human Rights Committee, Eightieth session, CCPR/C/21/Rev.1./Add. 13, General Comment No. 31 [80]: ‘The Nature of the General Legal Obligation Imposed on States Parties to the Covenant’, adopted on 29 March 2005 (2187th meeting), para 8.

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detained.2 Accordingly, a State with a legitimate interest in upholding the rule of law and promoting the fundamental rights of its people is required to enact the necessary measures to address threats to the rule of law and human rights.

In considering the legitimacy of crime fighting measures, it is important to acknowledge the interplay of the competing considerations outlined above. On one hand, the State must discharge its duty to preserve peace and order and guarantee citizen security, as this is a necessary condition for the enjoyment of fundamental rights by its citizens. On the other hand, it is inevitable that certain rights must be curtailed in the overall interests of society.

This is in line with the judicially recognised principle that “those who are responsible for the national security must be the sole judges of what the national security requires”. 3 The State is therefore accorded due deference in determining what crime fighting measures are to be introduced to address threats to national security. While doing so, however, the State must carefully weigh the extent to which certain rights will be curtailed to meet these aims and ensure these are in line with constitutional guarantees.

II.

The Right to Liberty and Security of Person

The protection against arbitrary deprivation of liberty is enshrined in Jamaica’s Constitution under the Charter of Fundamental Rights and Freedoms. Section 13(3)(a) of the Charter articulates the constitutional protection of “the right to life, liberty and security of the person and the right not to be deprived thereof except in the execution of the sentence of a court in respect of a criminal offence of which the person has been convicted”. It is this right that guarantees protection against all forms of unlawful or arbitrary arrest or detention. The Charter further provides at section 13(2)(b) that “Parliament shall pass no law and no organ of the State shall take any action which abrogates, abridges or infringes” any of the rights articulated in the Charter except where such abrogation, abridgement or infringement is demonstrably justified in a free and democratic society. Section 13(3)(f) of World Justice Project, Rule of Law Index 2016, page 9; United States Institute for Peace, Guiding Principles for Stabilization and Reconstruction (2009), page 7-65, para 7.3; Report of the Secretary-General: The rule of law and transitional justice in conflict and post-conflict societies, UN Doc. S/2004/616, para 6.

3 See for example, Council of Civil Service Unions and others v Minister for the Civil Service [1984] 3 All ER 935 at 944-945, and The Zamora [1916] 2 AC 77 at 107.

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the Charter also protects the freedom of movement which is arguably implicated when any person is restrained pursuant to the exercise of any power of arrest.

Jamaica is Party to a number of international human rights treaties that similarly protect the right to liberty and freedom from arbitrary deprivation. Article 9(1) of the International Covenant on Civil and Political Rights provides: Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except in accordance with such procedure established by law.

Article 7 of the American Convention on Human Rights also contains a similar protection of the right to liberty with a proscription on any arbitrary arrest and detention. Jamaica is therefore under a constitutional and international legal obligation to protect its citizens from arbitrary deprivation of liberty subject to permissible derogations and restrictions on these rights as are demonstrably justified in a free and democratic society. Parliament does have the right pursuant to section 48(1) of the Constitution to make laws for the peace, order and good government of Jamaica. However, this general right is made explicitly subject to the other constitutional limitations. Moreover, the rights to liberty and freedom have always been subject to the power of the State to exercise criminal jurisdiction over its citizens through lawful and reasonably executed arrests as articulated in section 14 of the Charter. Section 14(1) of the Charter specifies the circumstances under which a person may be arrested or detained and the treatment required for such persons.4 It underscores the Section 14(1) of the Constitution provides: No person shall be deprived of his liberty except on reasonable grounds and in accordance with fair procedures established by law in the following circumstances— (a) in consequence of his unfitness to plead to a criminal charge; (b) in execution of the sentence or order of a court whether in Jamaica or elsewhere, in respect of a criminal offence of which he has been convicted; (c) in execution of an order of the Supreme Court or of the Court of Appeal or such other court as may be prescribed by Parliament on the grounds of his contempt of any such court or of another court or tribunal; (d) in execution of the order of a court made in order to secure the fulfilment of any obligation imposed on him by law; (e) for the purpose of bringing him before a court in execution of the order of a court; (f) the arrest or detention of a person (i) for the purpose of bringing him before the competent legal authority on reasonable suspicion of his having committed an offence; or (ii) where it is reasonably necessary to prevent his committing an offence; 4

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trite fact that although each citizen is entitled to his right to liberty and freedom of movement, there are circumstances that warrant the curtailment of those rights.

The powers of arrest or detention must also be read subject to section 16(5) of the Charter which sets out the constitutional presumption of innocence in respect of persons charged with a criminal offence. This understanding is also embedded in the Bail Act which articulates the entitlement to bail of every person detained in connection with a charge laid against him. As a result, it is not permissible to unreasonably and indefinitely detain a person who has not yet been convicted of an offence.

The “demonstrably justified” requirement The “demonstrably justified in a free and democratic society” exception was not specifically defined in the Charter. Its meaning has taken shape from the judicial pronouncements from other Commonwealth jurisdictions with similar constitutional provisions. What is demonstrably justified in a free and democratic society is what is proportional in all the circumstances. The Jamaican courts have adopted the approach of the courts of Canada and New Zealand in setting out what must be taken into account when determining what is demonstrably justified in a free and democratic society. In R v Oakes5, the Canadian Supreme Court sets out a comprehensive guide for the application of the proportionality test which arose from its interpretation of section 1 of the Canadian Constitution. Section 1 of the Canadian Constitution is similar to section 13(2)(b) of the Jamaica Constitution. In R v Oakes, Dickson CJ noted as follows:

(g) in the case of a person who has not attained the age of eighteen years, for the purpose of his care and protection; (h) the detention of a person (i) for the prevention of the spreading of an infectious or contagious disease constituting a serious threat to public health; or (ii) suffering from mental disorder or addicted to drugs or alcohol where necessary for his care or treatment or for the prevention of harm to himself or others; or (i) the arrest or detention of a person (i) who is not a citizen of Jamaica, to prevent his unauthorized entry into Jamaica; or (ii) against whom action is being taken with a view to deportation or extradition or other lawful removal or the taking of proceedings relating thereto.

5 [1986] 1 S.C.R. 103

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To establish that a limit is reasonable and demonstrably justified in a free and democratic society, two central criteria must be satisfied. First, the objective, which the measures responsible for a limit on a Charter right or freedom are designed to serve, must be ‘of sufficient importance to warrant overriding a constitutionally protected right or freedom’...The standard must be high in order to ensure that objectives which are trivial or discordant with the principles integral to a free and democratic society do not gain s. 1 protection. It is necessary, at a minimum, that an objective relate to concerns which are pressing and substantial in a free and democratic society before it can be characterized as sufficiently important.

Second, once a sufficiently significant objective is recognized, then the party invoking s. 1 must show that the means chosen are reasonable and demonstrably justified. This involves ‘a form of proportionality test’...Although the nature of the proportionality test will vary depending on the circumstances, in each case courts will be required to balance the interests of society with those of individuals and groups. There are, in my view, three important components of a proportionality test. First, the measures adopted must be carefully designed to achieve the objective in question. They must not be arbitrary, unfair or based on irrational considerations. In short, they must be rationally connected to the objective. Second, the means, even if rationally connected to the objective in this first sense, should impair "as little as possible" the right or freedom in question...Third, there must be a proportionality between the effects of the measures which are responsible for limiting the Charter right or freedom and the objective which has been identified as of "sufficient importance".

“With respect to the third component, it is clear that the general effect of any measure impugned under s. 1 will be the infringement of a right or freedom guaranteed by the Charter; this is the reason why resort to s.1 is 7

necessary. The inquiry into effects must, however, go further. A wide range of rights and freedoms are guaranteed by the Charter, and an almost infinite number of factual situations may arise in respect of these. Some limits on rights and freedoms protected by the Charter will be more serious than others in terms of the nature of the right or freedom violated, the extent of the violation, and the degree to which the measures which impose the limit trench upon the integral principles of a free and democratic society. Even if an objective is of sufficient importance, and the first two elements of the proportionality test are satisfied, it is still possible that, because of the severity of the deleterious effects of a measure on individuals or groups, the measure will not be justified by the purposes it is intended to serve. The more severe the deleterious effects of a measure, the more important the objective must be if the measure is to be reasonable and demonstrably justified in a free and democratic society.6 The Oakes approach is consistent with that outlined in Zimbabwe in Retrofit v Posts & Telecommunications Corp.7 In that case, Gaby CJ indicated that the methodology for determining whether an abrogation or restriction of a fundamental right was permissible in a democratic state involved the consideration of the following questions: a) Is the legislative objective sufficiently important to justifying limiting the fundamental right? b) If so, are the measures designed to meet the legislative objective rationally connected to it and are not arbitrary, unfair or based on unreasonable considerations? and c) Are the means used to impair the right or freedom no more than is necessary to accomplish such objective?

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Ibid, pp. 138-140.

[1996] L.R.C. 489

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These approaches were applied by the Jamaican Full Court in Gerville Williams et al v The Commissioner of Indecom et al,8 Tomlinson v Television Jamaica Ltd, CVM Television Ltd and the Public Broadcasting Corporation of Jamaica,9 and most recently in Jamaican Bar Association v The Attorney General and the General Legal Council,10 and are therefore instructive.

Procedural Protection for Constitutional Rights In addition to the specific provisions that permit limitations on constitutional rights and freedoms, there are also built-in procedural mechanisms in the Constitution that add another tier of protection against interference. The entire Charter of Fundamental Rights and Freedoms is entrenched and section 49(2)(a) of the Constitution mandates the special legislative procedure for any alterations of the Charter. It states that no Bill that proposes to alter any of the provisions of the Charter may submitted to the Governor General for assent unless as per section 49(2)(a) of the Constitution “…a period of three months has elapsed between the introduction of the Bill into the House of Representatives and the commencement of the first debate on the whole text of that Bill in that House and a further period of three months has elapsed between the conclusion of that debate and the passing of that Bill by that House.” In addition to this timeline, the amendment Bill must be supported in each of the two Houses of Parliament by the votes of not less than two-thirds of all the members of each House. This section therefore helps to guard against any capricious alterations of the protections enshrined in the Charter.

III.

Powers of Arrest

The power to arrest any criminal or suspected criminal is an indispensable power in the crime fighting architecture in criminal legal systems the world over. At common law, arrest is said to be the beginning of imprisonment.11 Both private citizens and police officers have powers of arrest without a warrant at common law.

[2012] JMFC Full 1, [224].

[2013] JMFC Full 5 10 [2017] JMFC Full 02, [46] 11 Christie v Leachinsky [1974] AC 573, 600.

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Powers of Arrest under Common Law At common law, both a private citizen and a police officer may arrest another person without a warrant where that person has committed a breach of the peace or conducts himself in such a way that a breach of the peace is reasonably apprehended. There is no power to arrest after a breach of the peace has terminated except where the police officer or private citizen is in fresh pursuit of the offender or reasonably apprehends that there might be another breach of the peace by the citizen. There is no power at common law for either private citizens or police officers to arrest without a warrant any person reasonably suspected of having committed a misdemeanor.

A police officer or a private citizen may also arrest without a warrant any person in the act of committing a felony or who he reasonably suspects to have committed a felony.

However, in the case of arrest by a private citizen upon reasonable suspicion that another citizen has committed a felony, the arresting citizen must prove that a felony was actually committed by the person apprehended if such an arrest is to be lawful. Under common law, only a police officer may arrest without a warrant a person whom he suspects on reasonable ground is about to commit a felony.

The common law therefore quite clearly envisages the role that even private citizens can play in apprehending actual or suspected criminals. The powers of arrest of the police are more specifically outlined in the Constabulary Force Act. Powers of Arrest under the Constabulary Force Act Under the Constabulary Force Act, there are various provisions for arrest with or without a warrant.

Arrest without a warrant Section 15 of the Constabulary Force Act (CFA) provides that it is lawful for a police officer to arrest, without a warrant, any person found committing any offence punishable upon indictment or summary conviction or to take him forthwith to a Justice. In such a case, the police officer may either take such person to a jail, lock-up or prison to be held until he or 10

she is dealt with “according to law” or granted bail in accordance with the Bail Act. The powers of a police officer under this section are very wide. Section 15 appears to recognize that a warrant in those cases where a person is actually committing an arrestable offence would possibly be self-defeating. It should be noted that section 15 does not allow for any arrest without a warrant where a person is about to commit an offence.

Section 18 of the Constabulary Force Act contains a peculiar provision regarding “apprehension” without a warrant. It is peculiar because, on the face of it, there is an attempted distinction between arrest and apprehension. Under this section, any Constable may apprehend any person known or suspected to be in possession of any morphine, opiate, cocaine or any other dangerous or prohibited drugs or any paper, ticket, or token relating to any game or pretend game such a Drop Pan. The purpose of apprehension as used in this section is to bring a person forthwith before a Justice to be searched.

Nevertheless, if arrest is to be conceived of in common law parlance, the apprehension referred to in this section is akin to an arrest and thus appropriately referred to as one of the instances where a Constable may arrest a person without a warrant.

There are additional statutory powers of arrest without a warrant. such as those under the Town and Communities Act (section 4 and 7), the Larceny Act (section 62) and the Public Order Act (section 31) each specifying the circumstances under which one may be arrested without a warrant. Section 4 of the Town and Communities Act provides that “it shall be lawful for any constable to take into custody, without warrant, any person who shall commit any of the offences hereinbefore mentioned within view of any such constable, and in like manner when the offender is unknown, without warrant to take into custody any such offender who shall be charged by any other credible person with recently committing any of the said offences, though not committed within view of such constable, but within view of the person making such charge.”

Section 31 of the Public Order Act states that a constable may arrest without warrant any person reasonably suspected by him to be committing or to have committed any offence against the provisions of the Act. It is apparent from the above provisions that the power of 11

arrest is to be used judiciously and only in case where an offence has actually been committed or where there is reasonable suspicion that an offence has been or will be committed.

Arrest with a warrant Section 16 of the Constabulary Force Act sets out the power of arrest with a warrant and the exercise of such powers generally pose no issues in terms of the authority to effect an arrest. Section 16 states that: Any warrant lawfully issued by a Justice for apprehending any person charged with any offence may be executed by any Constable at any time notwithstanding that the warrant is not in his possession at that time but the warrant shall, on the demand of the person apprehended, be shown to him as soon as practicable after his arrest.

Constitutional Safeguards on Powers of Arrest The Constitution prescribes safeguards that ensure that those exercising the powers of arrest do so in a manner that shows respect for the dignity of the human person. The provisions warrant being stated in full. Sections 14(2) and (3) provide as follows: (2) Any person who is arrested or detained shall have the right (a) to communicate with and be visited by his spouse, partner or family member, religious counsellor and a medical practitioner of his choice; (b) at the time of his arrest or detention or as soon as is reasonably practicable, to be informed, in a language which he understands, of the reasons for his arrest or detention; (c) where he is charged with an offence, to be informed forthwith, in a language which he understands, of the nature of the charge; and (d) to communicate with and retain an attorney-at-law.

(3) Any person who is arrested or detained shall be entitled to be tried within a reasonable time and (a) shall be: (i) brought forthwith or as soon as is reasonably practicable before an officer authorized by law, or a court; and 12

(ii) released either unconditionally or upon reasonable conditions to secure his attendance at the trial or at any other stage of the proceedings; or (b) if he is not released as mentioned in paragraph (a)(ii), shall be promptly brought before a court which may thereupon release him as provided in that paragraph.

(4) Any person awaiting trial and detained in custody shall be entitled to bail on reasonable conditions unless sufficient cause is shown for keeping him in custody.

(5) Any person deprived of his liberty shall be treated humanely and with respect for the inherent dignity of the person.

These safeguards are intended to guide the legislature and judicature respectively on the boundaries for the content of any law and how operationally arrests and arrested persons are to be martialed. As noted above the only derogations permitted are those that are reasonably justified in a free and democratic society.

IV.

Preventative Detention

Despite recent attention in the media surrounding the term “preventative detention”, the phrase is simply used to describe the situation where a Constable exercises his right to arrest a citizen on the reasonable suspicion that this person is about to commit an offence, or to terminate an actual or potential breach of the peace. The phrase “preventative detention” may be used interchangeably with “preventative arrest”, since it is understood that arrest signals the beginning of detention or imprisonment at common law.12 The purpose of preventative detention is to safeguard national security or public order, and in Jamaica the power to effect preventative detention exists at common law and under statute.

Preventative Detention at Common Law

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Christie v Leachinsky [1974] AC 573, 600.

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At common law, a police officer has power to arrest without warrant where a felony is committed, or on reasonable suspicion of a felony has been committed or is about to be committed.13 Thus, a preventative arrest without a warrant could be effected on reasonable suspicion that a felony such as murder, wounding with intent, causing grievous bodily harm with intent or illegal possession of a firearm has been committed or is about to be committed. In respect of misdemeanours, however, the power of preventative arrest without warrant is more limited and applies to situations where a breach of the peace has actually been committed in the presence of the police officer or there is reasonable ground for supposing that a breach of the peace is about to be committed or renewed in his presence.14 Preventative Detention under Statute In addition to the aforementioned power at common law, section 13 of the Constabulary Force Act, entrusts the police with the following duties: “…to keep watch by day and by night, to preserve the peace, to detect crime, apprehend or summon before a Justice, persons found committing any offence or whom they may reasonably suspect of having committed any offence, or who may be charged with having committed any offence…”

Preventative detention falls squarely within the officer’s duty to preserve the peace, and is clearly permissible in situations where the officer reasonably suspects that a person has committed an offence. As noted above, there are other legislative provisions for arrest without warrant on reasonable suspicion that an office has been or is being committed, such as section 18 of the Constabulary Force Act and section 31 of the Public Order Act. Preventive Detention and the Constitutional Right to Liberty Section 14(1)(f) of the Constitution recognizes that preventative detention is a permissible limitation on the right to liberty in the following terms:

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Christie v Leachinsky [1947] AC 573.

R v Owen Sampson (1954) 6 JLR 292.

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14—(1) No person shall be deprived of his liberty except on reasonable grounds and in accordance with fair procedures established by law in the following circumstances— … (f) the arrest or detention of a person— (i) for the purpose of bringing him before the competent legal authority on reasonable suspicion of his having committed an offence; or (ii) where it is reasonably necessary to prevent his committing an offence In requiring that there be reasonable grounds and adherence to fair procedures established by law, the Constitution guards against the arbitrary deprivation of one’s liberty. As discussed above, sections 14(2) and (3) of the Constitution prescribe the safeguards that must govern the treatment of persons who are arrested or detained, and these provisions extend to situations of preventative detention. Furthermore, the arrest must also be exercised for a proper purpose, and justified by a positive rule of law. Section 14(1)(f) also requires that there be “reasonable suspicion”, which is understood at common law to mean that there is an actual suspicion by the arresting officer, and there are reasonable grounds for the suspicion based on the facts.

Case law also supports the legitimacy of preventative detention as a limitation that is demonstrably justifiable in a free and democratic society. Article 5(1)(c) European Convention on Human Rights (ECHR) provides for preventative detention, and is substantially similar in wording to section 14(1)(f). 15 The European Court of Human Rights has made several pronouncements affirming that preventative detention is an important 15

European Convention on Human Rights, Article 5 (Right to liberty and security)— (1) Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: (c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so.

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tool in the State’s arsenal of crime fighting measures and does not ipso facto constitute an unjustifiable violation of the right to liberty, noting for example that: “The Court is aware of the importance…of preventive police custody in order to avert dangers to the life and limb of potential victims or significant material damage…”16 and “Article 5 cannot be interpreted in such a way as to make it impracticable for the police to fulfil their duties of maintaining order and protecting the public, provided that they comply with the underlying principle of Article 5, which is to protect the individual from arbitrariness.”17 In the recent case of R (on the application of Hicks and others) v Commissioner of Police for the Metropolis, the United Kingdom Supreme Court (UKSC) considered the balance to be struck between preventative detention and the right to liberty under the ECHR. In Hicks, an attempted attack was thought to be likely based on acts of violence committed in the months leading up to a royal wedding and police intelligence indicated that activities aimed at disrupting the celebrations were being planned through social media websites. The four appellants were arrested in separate incidents at various locations in central London on the grounds that their arrests were reasonably believed by the arresting officers to be necessary to prevent an imminent breach of the peace. The appellants were taken to four different police stations and later released without charge once the wedding was over and the police considered that the risk of a breach of the peace had passed. Their periods of custody ranged from about 2½ hours to 5½ hours.18 The appellants challenged the legality of the detention under common law and under Article 5(1)(c)of the ECHR.

Ostendorf v Germany, European Court of Human Rights Application no. 15598/08 (2013) 34 BHRC 738 at [88].

17 Austin v United Kingdom, European Court of Human Rights, Grand Chamber, Applications nos. 39692/09, 40713/09 and 41008/09 (2012) 32 BHRC 618 at [56].

18 Hicks at [3].

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In considering the matter, the UKSC took a practical approach and held that preventative detention is a legitimate measure when carried out in circumstances where it is reasonably considered to be necessary for preventing imminent violence, noting: “[29] The fundamental principle underlying article 5 is the need to protect the individual from arbitrary detention, and an essential part of that protection is timely judicial control, but at the same time article 5 must 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. These twin requirements are not contradictory but complementary…

[30] In balancing these twin considerations it is necessary to keep a grasp of reality and the practical implications. Indeed, this is central to the principle of proportionality, which is not only embedded in article 5 but is part of the common law relating to arrest for breach of the peace...”19 [31] In this case there was nothing arbitrary about the decisions to arrest, detain and release the appellants. They were taken in good faith and were proportionate to the situation. If the police cannot lawfully arrest and detain a person for a relatively short time (too short for it to be practical to take the person before a court) in circumstances where this is reasonably considered to be necessary for the purpose of preventing imminent violence, the practical consequence would be to hamper severely their ability to carry out the difficult task of maintaining public order and safety at mass public events.

This would run counter to the fundamental principles previously identified.”

From the above, it is evident that the provision for preventative detention is firmly established under common law and statute in Jamaica, and is a permissible and legitimate

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Hicks at [29] and [30].

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limitation on the right to liberty as an appropriate response to criminal acts which a police officer reasonably suspects are about to be committed.

V.

Powers of Arrest and Detention and Zones of Special Operations

The recently enacted Law Reform (Zones of Special Operations) (Special Security and Community Development Measures) Act, 2017 provides for extensive powers that enables the Joint Command to establish cordons within a Zone, impose a curfew in a Zone (sections 12(1)(a) and (b)) and in any such case to exercise such powers as are vested in a Constable which would include those powers of arrest with or without a warrant under the Constabulary Force Act.20 Some have expressed concern regarding the extent to which this Act could infringe the constitutional rights to liberty and free movement. While these concerns are legitimately raised, the Act contains built-in safeguards that are aimed at reducing or preventing abuses of constitutional rights.

These safeguards are first expressed in section 3 of the Act, where one of the objectives of the Act is expressed as the upholding of the rule of law while protecting the fundamental rights and freedoms of persons who reside or conduct lawful business in a Zone. Section 4 prescribes the circumstances that must exist for an area to be declared as a zone of special operations, and includes a time limit on the period during which the Zone is to operate.

Section 13 of the Act further prescribes that where a cordon or curfew is established or imposed under the Act: (a) the cordon shall endure for a period not exceeding twenty-four (24) hours; and (b) the curfew shall endure for a period not exceeding seventy-two (72) hours thus ensuring that these activities are not carried on indefinitely.

Section 16(1) of the Act specifies that regarding actions being taken within the Zone, “a person shall not be arrested or detained unless the person in charge of the operations is

Under section 2 of the Act, the ‘Joint Command’ is defined as the persons designated under section 8(1).

The persons designated under section 8(1) of the Act include a Member of the Jamaica Defence Force, not below the rank of Major, nominated in writing by the Chief of Defence Staff and a member of the Jamaica Constabulary Force, not below the rank of Superintendent, nominated in writing by the Commissioner of Police, to be jointly in charge of operations within a Zone of Special Operation both of whom are designated by the Prime Minister in Council.

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satisfied that there is reasonable ground for the arrest or detention of the person�. Section 16(2)(a) then provides that any person arrested or detained is to be informed, as soon as is reasonably practicable, of the reasons for his arrest or detention and under section 16(2)(b) such a person must be forthwith taken to a Justice of the Peace for a determination to be made as to whether or not there are reasonable grounds for the arrest or detention.

Section 16(3)(a) of the Act also prescribes that a Justice of the Peace may remand in custody a person who has been arrested or detained for a period not exceeding twenty-four (24) hours after which the person has to be taken before a Judge of the Parish Court.

However, section 16(4) mandates that a person be released forthwith if a Justice of the Peace is not satisfied that the arrest or detention of any person is reasonably required in the interest of justice.

These provisions reflect the tenor of the Constitutional guarantees of section 14 of the Charter and are meant to ensure minimum impairment of the right to liberty and free movement while taking into the account the need to have stringent measures to fight rampant crime and lawlessness within the society.

VI.

Conclusion

The State has an obligation under the Constitution and international human rights law to uphold the fundamental rights and freedoms of all persons within its jurisdiction and control. Part of this duty includes taking the necessary measures to combat criminal acts that have the effect of eroding the rights of others, threatening the rule of law, and undermining public order. In undertaking this duty, the State may implement a range of measures, some of which will inevitably place limitations on rights such as liberty and freedom of movement.

This presentation considered how powers of arrest and preventative detention operate as viable and Constitutionally-sound measures to combat threats to freedom. In each instance, 19

statutory and common law provisions guard against the arbitrary exercise of powers of arrest and detention. The concerns raised in respect of any measure which has the effect of curtailing these rights are not unique to Jamaica, and where appropriate, useful guidance may be gleaned from crime fighting measures used in other jurisdictions where these effectively address crime and preserve fundamental rights. The legitimacy of any measure must be considered in light of the State’s responsibility to promote and protect fundamental rights, they should be proportionate to the situation, and not constitute an arbitrary deprivation of rights.

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