Legal Eagle : Fearful of unfair arrests

February 13, 2017
Prime Minister Andrew Holness confers with Attorney General Marlene Malahoo Forte on Wednesday, February 8, before announcing measures to curb domestic violence, sexual abuse and the sexual grooming of minors.

With just a phone call from an alleged complainant or informant, you could easily spend a night in a crowded jail that is infested with rodents and on a cold concrete floor for a bed. This overnight stay is described by the Government as preventative detention to facilitate a 'cooling off' to allow for calm and rationality to return to the brain of the intended wrongdoer.

The backdrop to all of this is that the Government has recently announced plans to stem the tide of criminal activities by implementing what is termed as preventative detention. Government officials are saying that it does not offend any of the provisions under the Constitution and that there is no need for any further legislation to give police the powers to make these arrests because the Constitution already makes provisions for it. But is that true?

A working definition of preventative detention is an arrest and possible imprisonment of an alleged offender' for the purpose of immediately preventing an offence. It is imperative to note that under the Charter of Fundamental Rights and Freedoms (Constitutional Amendment) Act, 2011, Section 14 provides that "No person shall be deprived of his liberty except on reasonable grounds and in accordance with fair procedures established by law in circumstances," among other things, "where it is reasonably necessary to prevent his committing an offence."

It might be necessary to also look at the power of arrest that the police now enjoy. Section 13 of the Constabulary Force Act outlines the duties and powers of a police officer, which is, essentially, "to keep watch by day and night, to preserve the peace, to detect crime, apprehend or summon before a Justice, persons found committing an offence or whom they may reasonably suspect of having committed any offence or who may be charged with having committed any offence ..."

In light of the above, the police power of arrest is generally limited to situations where the police saw someone committing an offence and when the police have suspicion that someone has committed an offence. A private citizen can arrest the person he saw committing an offence.




However, the police also have a duty to preserve the peace and, in so doing, may make an arrest where it is reasonably necessary to prevent a breach of the criminal law, but there must be fair legislative guidelines for this to happen.

In light of the above, the issue is whether the police can make an arrest to prevent the commission of a crime without established law that would outline the fair procedures to do so. The prime minister, minister of national security and the attorney-general all spoke about preventative detention, but none has directed the attention of the citizens of this country to the law which outlines the fair procedures to allow for preventative detention. So with no legislative framework, it seems as if it will be left up to each police officer to determine what is 'reasonably necessary' to prevent the commission of a crime.

Certainly, the test of reasonable necessity is likely to be different based on the offence, but what is sure is that Jamaicans should get ready for another round of uncertainty and confusion. It is often said that the law is an ass, but now we know that our political leaders are also in that category.

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