Police Powers in the West Indies: Some Constitutional Aspects

• Author: A.R. Carnegie
• Position: Professor of Law, University of the West Indies, Cave Hill Campus, Barbados
• Pages: 1-24

Page 1

Police Powers in the West Indies: Some Constitutional Aspects

A.R. Carnegie*

Introduction

The Commonwealth countries of the Caribbean and its peripheral areas comprise seventeen different jurisdictions,¹all with individual constitutional instruments and discrete corpora of statute law. This diversity poses insuperable problems to giving any sort of comprehensive exposition of their law on police powers within the compass of a short paper, and dictates a highly selective treatment.

What follows examines the matter in outline from the standpoint of the Constitutions of three of the leading jurisdictions; Barbados, Jamaica and Trinidad and Tobago; with occasional references by way of contrast to the smaller jurisdiction of St. Christopher and Nevis. The question is also considered against the background of the common heritage of the common law which these jurisdictions would have shared from their colonial past, and the abandonment of significant aspects of that heritage by the new code constituted by the Police and Criminal Evidence Act, 1984 in Britain.²

* Professor of Law, University of the West Indies, Cave Hill Campus, Barbados. The assistance of Delford Morgan, Esq., LL.B., in searching for and checking references is acknowledged with thanks. This paper, subject to minor editorial amendment, was presented (under the title "Police Powers in the West Indies") to the 9th Commonwealth Magistrates' and Judges' Conference in Sydney, Australia
in September 1991.

¹The twelve full members of the Commonwealth Caribbean are Antigua and

Barbuda, The Bahamas, Barbados, Belize, Dominica, Grenada, Guyana, Jamaica, St. Christopher and Nevis, St. Lucia, St. Vincent and the Grenadines, and Trinidad and Tobago. The five countries which remain dependent territories of the United Kingdom and Colonies are Anguilla, British Virgin Islands, Cayman Islands, Montserrat and Turks and Caicos Islands.

²Hereinafter PACE.

Page 2

The Constitutional Status of the Police

The constitutional position of the police in West Indian jurisdictions has been the subject of conflicting judicial authority.

In Thomhill v. A.-G., the Court of Appeal of Trinidad and Tobago asserted, on the basis of English authority, that "a police officer is the servant of, and answerable to, no-one but the law".³The decision of the Court of Appeal was reversed by the Judicial Committee of the Privy Council in so far as it deduced from the proposition quoted that a constitutional action could not be maintained against the state on account of police action, but the Privy Council left the point open whether the principle might not apply outside the context of the constitutional remedy.⁴

In A.-G. v. Thomas, by contrast, the Court of Appeal of Trinidad and Tobago were clearly of the opinion that police officers were servants of the crown.⁵The conclusion was, moreover, supported by a lengthy historical excursus on the legal status of the police force from colonial times through independence.⁶

It is submitted that the view of the Court of Appeal in Thomas is to be preferred to the application of the mistaken analogy with the English position. The matter is complicated, however, by the existence of a divided jurisdiction, such as applies also to other servants of the crown under the West Indian Constitutions. That divided jurisdiction arises from the control of service commissions of matters of appointment and discipline. From Thomas v. A.-G., it appears that the service commission's power over discipline does not extend to a power to prescribe codes of conduct, which presumably therefore rests with the executive.⁷That case made clear that the legislation governing the

³(1976) 31 W.I.R. 498 at 507, per Rees, J.A. (reversed [1981] A.C. 61 (P.C.)).

⁴[1981] A.C. 61 at 73-74.

⁵See (1979) 31 W.I.R. 355, per Hyatali, C.J. at 363.

⁶See, in particular, the judgment of Kelsick, J.A. (as he then was), at 421-424.

⁷[1982] A.C. 113 at 133.

Page 3

police force in Trinidad and Tobago was in part unconstitutional in trenching on the constitutional powers of the service commission.⁸

The West Indian police forces, it may therefore be concluded, are centralised police forces established under the Constitutions, with structures of appointment which treat them as parallel to branches of the civil service. The view in Thornhill⁹ that the police officer in the West Indies is, as in Britain, not in that capacity a servant of the Government, appears to have been abandoned.¹⁰It was hardly reconcilable with the civil service analogy, and would sit strangely in Barbados and Jamaica with military responsibilities which do not fit the British model¹¹and statutory provisions giving the Prime Minister a right of command in the exercise of those responsibilities.¹²

The divided jurisdiction, however, may succeed in insulating the police force from political control in respect of the composition of the force in the same manner as such division of jurisdiction has that effect in relation to the civil service. The constitutionally entrenched control of appointments by a service commission,¹³with some security of tenure,¹⁴although under most of the Constitutions consisting effectively of appointees of the political head of the government,¹⁵is obviously motivated by that purpose of insulation from political control. The extent to which this objective is achieved, however, may naturally vary from

⁸ ibid.

⁹(1976) 31 W.I.R. 498, reversed [19811 A.C. 61 (P.C.).

10 Cf. supra, note 5.

11 Police Act, Cap. 167 (Barbados) s.5; Constabulary Force Act (Jamaica), s. 49.

12 Defence Act, Cap. 159 (Barbados) s. 9 (2); Defence Act (Jamaica), s. 9 (2).

13 Barbados Constitution, ss.49(2)(f), 96; Trinidad and Tobago Constitution, ss.54(2)(a), 122-123.

14 Barbados Constitution, ss. 91 (4), 105; Trinidad and Tobago Constitution, s. 126
(4).

15 Barbados Constitution, s. 91 (1). In Trinidad and Tobago, the appointment of members of the Police Service Commission lies with the President, who consults the Prime Minister and the Leader of the Opposition, but does not have to accept any advice he receives in the course of such consultation: Trinidad and Tobago Constitution, ss. 80 (1) (b), 120 (l)-(2), 122 (2)-(3).

Page 4

one West Indian State to another, notwithstanding similarity of constitutional prescription.

Police Powers under the Constitutions Introduction

At the time of the independence of Barbados in 1966, the view might still have been capable of being held that the common law position governing police powers in relation to arrest and detention, applied equally in England and in the three West Indian jurisdictions of Barbados, Jamaica and Trinidad and Tobago. Notwithstanding the significant (to put it at its lowest) difference between Britain's unwritten Constitution and the written Constitutions in Barbados, Jamaica and Trinidad and Tobago, with their entrenched provisions relating to fundamental rights and freedoms dealing specifically, inter alia, with arrest and detention¹⁶,

and the differences in language among the three written Constitutions themselves, there appeared to be some predisposition on the part of the judiciary to regard the law as having remained in its familiar English common law mould.

The decision of the Court of Appeal of Trinidad and Tobago in Thornhill v. A.-G.¹⁷ may well be the most extreme instance. In that case, Thornhill was arrested and taken to a police station. His request to be able to communicate with his lawyer was not granted until three days after his arrest. He obtained at first instance a declaration that his constitutional right to consult his lawyer had been infringed, but this decision was reversed by the Court of Appeal of Trinidad and Tobago on the grounds that the constitutional remedies for breach of the fundamental rights and freedoms provisions of the Constitution of Trinidad and Tobago could not be used to obtain redress for police action: the constitutional protection applied only to state action, and police action did not, in the judgment of that court, constitute state action.

16 Barbados Constitution, s. 13 (1) (e), (2) - (4); Jamaica Constitution, s. 15 (1) (0,

(2) - (4); Trinidad and Tobago Constitution 1962, s. 2 (c), since replaced by Constitution of the Republic of Trinidad and Tobago, s. 5 (2) (c).

17 (1976) 31 W.I.R. 498, reversed [1981] A.C. 61 (P.C.).

Page 5

Since police arrest and detention was thus excluded by the Court of Appeal of Trinidad and Tobago in Thornhill from the state action against which alone the Constitution provided a remedy, the decision amounted arguably to denying the relevance of the law governing such arrest and detention, even of the difference between, on the one hand, a purely common law regime under the unwritten British Constitution and, on the other, the rigidity of a codified and ostensibly constitutionally redressable system. The provisions of the Constitution of Trinidad and Tobago expressly prescribing rules governing arrest and detention would on that decision have been just without any remedium indeed, since even a declaration was held not to be available.

The decision of the Court of Appeal of Trinidad and Tobago in Thornhill was, however, reversed on appeal,¹⁸and the recognition that police action was state action, and thus justiciable under the special constitutional redress procedures, has prevailed, so much so that the proposition was this year described by the Judicial Committee of the Privy Council as "obvious" and "well settled law".¹⁹Thus the law in the West Indies governing the arrest and detention of alleged offenders by the police is now indisputably and structurally different at least in the aspect that such law, by virtue of the prescriptions in the written Constitutions, is now protected by the special constitutional remedies²⁰which would have no...