Legal Eagle : Jamaica needs a use-of-force policy,

June 05, 2017
Police on foot patrol in Kingston.

The Independent Commission of Investigations recently hosted a conference on the use of force. The aim was to improve the use-of-force policy for Jamaica and the wider Caribbean.

As a starting point, it might be helpful to know what is use of force. In the context of law enforcement, use of force may be defined as "the amount of effort required by police to compel compliance by an unwilling subject".

Prime Minister Andrew Holness, who addressed the conference, indicated that Jamaica couldn't rely on use of force to preserve law and order. He stated that there has been too much reliance on use of force by our colonial masters, which continued beyond our Independence. The PM's prescription is for a new paradigm of engendering rule of law or public order and to strike a balance between public safety and officer safety.

Even if the analysis of the PM regarding the problem of use of force were correct, it is clear that the PM did not make any new and innovative proposal. It might have been helpful if the PM had pledged to provide financial support for training our security forces in use of force, especially how to quickly take decisions before force is used.

No one will argue that the security force is on the front line of the criminal justice system and, as such, is constantly involved in situations where use of force is required, especially to observe or even to restore order when the use of persuasion, advice, counselling and warning have been exhausted. Private citizens have also used force, sometimes deadly force, in self-defence and in the defence of family and/or property.

 

DEADLY FORCE

 

A security officer or private citizen who is faced with a situation that potentially requires use of force, that could include use of deadly force, sometimes only have a short time to think and process information before pulling the trigger to protect himself or else.

Most of the well-known cases in use of force involved the use of deadly force. If a police investigation reveals that the use of deadly force was not necessary or that it was excessive, the person who used the deadly force is likely to be charged with murder. However, the burden would be on the prosecution to prove that the action of the accused man in response to any attack or perceived attack was not necessary and/or the force applied was excessive or unreasonable. Thus, a minor attack should not be repelled with a response that is out of proportion to the attack.

On the other hand, a person who is being attacked does not have to wait for his assailant to strike the first blow or fire the first shot. The test in self-defence was laid down in 1971 in Palmer's case, when the court ruled that a person who is attacked is entitled to defend himself with what is reasonable necessary but the action taken must be in proportion to the act. The court, in Palmer's case, was also of the view that the person who is attacked does not have to weight to nicety the exact measure of his response, and in responding to the attack, he may do what he honestly and instinctively thought was necessary.

Obviously, Jamaica needs a use-of-force policy which is unique to Jamaica, does not offend our laws or runs contrary to any provisions in our Constitution. The said policy should allow officers, when properly trained in use of force, to quickly take decisions and, when required, these officers should not hesitate to use force, including deadly force, when all else fails.

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