Friday, April 25, 2014

Tivoli COE: Publish JDF Report on Tivoli

The Jamaica Defence Force has a duty to the people of Jamaica to publicize the truth of its operations in Tivoli Gardens in May 2010.That inconvenient truth ought not to wait on the announced Commission of Enquiry to provide a forum for its promulgation.

Since May 2013 the Jamaica Defence Force (JDF) has stated categorically that the Interim Report tabled  by the Public Defender contained  "numerous unfortunate conclusions drawn on the basis of unsubstantiated allegations, misrepresentation and uninformed analyses" 
The Gleaner, Monday, May 6, 2013

The JDF is a professional organisation that enjoys a special place within public confidence. It is duty-bound to maintain that position. It is imperative that  the JDF places its record in the public domain to, at the very least, provide an alternative to that posited by the public defender concerning its operations in the "Tivoli incursion/siege". Currently the public has only that Interim Report  detailing some of the events that garnered international publicity and ultimately precipitated the fall of the incumbent political administration.

In short, the JDF must make its criticisms of the Witter Report public; documenting the unsubstantiated allegations, identifying the misrepresentations and presenting  better informed analyses. Nothing less will suffice.

The JDF cannot now seek the cover of the "SECRET" classification or the "national security interest" umbrella. It needs to provide detailed substantiation.
                                         Curtailing the Circus

Media coverage of the proceedings of a Commission of Enquiry can attract  a captive audience enthralled by the cameo performances and the courtroom drama. However, there is a huge financial cost and the forum is not conducive for incisive analysis.

The tabling by the JDF of its  detailed response to the Public Defender's will provide  very important background information that will have a direct bearing on the conduct of the COE. It will save time and expense.

The provision of such a Response ought not to be a challenge. 

  • The then Chief of Staff is now the Permanent Secretary, Ministry of National Security. As such he is the defacto Permanent Secretary, Ministry of Defence .
  • The Prime Minster is the Minister of Defence
  • All sensitive national security matters have to receive special clearance from the duly constituted authourity
  • The presentations by the JDF before the Tivoli COE would have to receive such clearance in advance.
It is suggested that the process be implemented now as the delay must involve, inter alia,   deterioration of the public confidence in the JDF as the positions enunciated in the Public Defender's Interim Report become more difficult to correct, adjust or dispel.

Tivoli COE: JDF vs. The Public Defender

A showdown looms between the Jamaica Defence Force(JDF) and the Public Defender. The battle lines are drawn.

The Public Defender has tabled in Parliament its Interim Report on the "Tivoli incursion/siege". That has been the subject of discussions in the local and international media, the choice topic of social media and is available on the GOJ Parliament website.

The JDF has not officially responded to the adverse findings contained in Witter's Report. Indeed Earl Witter had led the public to expect a Final Report. However he has since retired and the only question is whether or not he has "packed up taken his marbles with him".

The JDF has thrown down the gauntlet and signaled in no uncertain terms the approach it intends to adopt during the Tivoli Commission of Enquiry:

"The JDF, meanwhile, said that it welcomed the opportunity to respond to "numerous unfortunate conclusions drawn on the basis of unsubstantiated allegations, misrepresentation and uninformed analyses" in the public defender's report."

                                     Command Performance      

Before making public such a damning statement, the JDF-- being a professional army-- must have:

  • Read, studied and analysed in meticulous detail the Interim Report
  • Identified the areas of adverse findings concerning its operations during the Tivoli incident
  • Retrieved its documentary records and researched its files in order to substantiate its positions
  • Carefully considered the implications for  public confidence, if indeed it should fail to deliver on its promise 
The Office of The Public Defender is not likely to issue a Final Report in light of the numerous personnel changes in the recent past. The impression was that the Interim Report was that of Earl Witter.  Indeed , if in the very unlikely event that a Final Report is tabled in Parliament, it would only annex the long awaited Ballistic Reports.

Given the looming showdown it would be advisable that the Office of the Public Defender set mechanisms in place to "defend" its adverse findings against the JDF.The showdown promises to be dynamite for live media coverage, streaming to the international audience and gist for social media.

Lawyers will be acutely aware of the media coverage. They will make sure that their presence is duly seen. Apart from carefully orchestrated interventions,special care will be accorded to sartorial elegance. 
[My friend Victor Wilson, the bespoke tailor, could do with the increased business.]

But the circus can be curtailed.

Thursday, April 24, 2014

Tivoli COE:That JDF Welcome

The Tivoli "incursion/siege" was a military-driven operation. That is another way of stating that The Jamaica Defence Force (JDF) played the central role in the planning and implementation of the exercise. It follows that any investigation into the armed confrontation between the civilians and members of the Security Forces must involve analysis of the veracity of the information informing the strategies which were considered,the options which were available, the factors informing the decisions taken, as well as the the nuts and bolts of the actual operation carried out.

 The need for unbiased military expertise cannot be disputed. What is subject to debate is the formal role to be accorded to such skill set. Our position is that should be accorded the position of Commissioner reflecting the importance and centrality of such to the Commission of Enquiry aimed at unearthing the truth, irrespective of its inconvenience--political and otherwise. Others are of the view that such expertise can be made available to the COE to advise the Commissioners.

 We would counter arguing that such expertise would incur a substantial financial cost, unless underwritten by a "friendly"  foreign government or institution.It would be financially prudent not to incur the cost of a Commissioner in addition to that of the unbiased military expert.In sum, the GOJ should seek the services of such an expert and appoint that individual as the replacement for Velma Hylton QC.

 With an announced budget of JA$100M,the GOJ is obliged to get value for the tax-payers' money. The general public is very cynical of the motive, timing and possible outcomes of yet another Commission of Enquiry.

The Security Forces have welcomed the proposed COE. That welcome was in early May 2013.It will be soon the first anniversary of the announcement and there is yet to be any indication of the commencement date.[Note: Guyana Government announced a COE into the death of Walter Rodney some thee decades after the event]

 The reported welcome by the Jamaica Defence Force (JDF) leaves little doubt as to challenge ahead.
The Jamaica Observer, Tuesday, May 07, 2013 :

"The JDF, meanwhile, said that it welcomed the opportunity to respond to "numerous unfortunate conclusions drawn on the basis of unsubstantiated allegations, misrepresentation and uninformed analyses" in the public defender's report. 
 "These (allegations), if left without rigorous and objective investigation, may give the wrong impression of the force and the men and women who put their lives at risk for their fellow citizens daily. We support the decision, therefore, as we believe that such a commission of enquiry will be conducted with the appropriate rigour and objectivity that will shed light on the facts, and help to paint a true picture of the circumstances surrounding the May 2010 operation," the army said in a statement. 
 The JDF added that it was confident that the May 2010 internal security operation could stand up to objective scrutiny, and that it looked forward to the commencement of the commission of enquiry."

Wednesday, April 23, 2014

Tivoli COE: Unbiased Military Expertise Needed

In an earlier post we posited Some Preliminary Concerns regarding the proposed Tivoli Commission of Enquiry.
With respect to the skill set of the panel of commissioners we noted the clear need for "a foreign security expert with specialized training/ experience in intelligence gathering & analysis, surveillance, and urban armed confrontation."
We argued that the exercise in Tivoli was a military operation and no doubt the security Forces are anxious to tell how they saved Jamaica, acted with considerable restraint and in so doing prevented the escalation of fatalities.

"The questioning and analysis of the operations conducted by the Security Forces in Tivoli has to be the central focus of the COE. It cannot be a public relations exercise aimed at restoring the public's confidence in the Security Forces in general and the Jamaica Defence Force in particular."

We post the original letter by Colonel Allan Douglas to the Observer : an edited version of which was published on Wednesday, April 23, 2014 under the heading  "The tale of two Tivolis"

Dear Editor,

I have just had the opportunity of reading thoroughly the Public Defender’s Interim Report to Parliament concerning“investigations into the conduct of the Security Forces during the State of Emergency Declared May 2010-West Kingston/Tivoli Gardens”. For an interim report, I found it very comprehensive, albeit very disturbing and worthy of careful study, especially before the start of the long-awaited Tivoli‘incursion/siege’ inquiry. Hopefully this interim report will help the commissioners of the enquiry better understand the real issues that need to be addressed – issues that have caused much public concern over what was primarily a military-driven operation.

The report reveals two very clear and different accounts of the events that took place in May 2010 in Tivoli Gardens, which resulted in what the report terms as “…the greatest independent Jamaica loss of life in a Single State operation in independent Jamaica: seventy-six (76) civilians and one (1) soldier.”

The security forces’ position is likely to be that they came under sustained gunfire from snipers and gunmen behind a well-barricaded Tivoli Gardens and that they returned fire. Further, that they provided every opportunity for law-abiding citizens to leave their homes under comprehensive arrangements for their safety elsewhere before the start of operations. They will also point out that mortar or mortars were fired at open lands or space as part of a diversion or deception plan and that the mortars were expertly handled and not aimed at built-up areas or civilian dwellings. The claims of ill-treatment of over 1,000 detainees will be dismissed, of course, and they will claim that the military couldn’t be expected to provide five-star treatment or three square meals over and above bread and water and ablution amenities to suspects or possibly armed combatants. All claims of beating will be sternly denied and allegations that suspects were transported along with dead bodies will be met with the rhetoric that, given the fluidity of the situation and the ‘fog of war’, this was the only option open to them. Accusations of leaving the decomposing bodies of civilian dead lying in the roads will probably be met by claims that whenever they tried to remove these bodies, they came under sniper fire. In summary, the security forces will claim “no wrong”.

Civilian accounts will claim that soldiers fired at unarmed civilians when there was no real threat to the soldiers, and that members of the security forces meted out cruel and brutal treatment to the civilians and damaged or destroyed their property.

It is in the interests not only of the future of the Jamaica Defence Force, but certainly the country itself that the inquiry determines the level of so-called ‘resistance’ that came from behind the well- ‘defended’ or fortified Tivoli during this operation. How many of those killed, for instance, were firing weapons? As the Public Defender has so correctly pointed out, the ratio of killed civilians to weapons recovered raises serious doubts and questions. We hope the security forces will be forthcoming with the amount of rounds they discharged during this operation and weapons recovered, and if any were taken from dead civilian “combatants”.

We certainly need to know more about the firing of mortars aimed at “open spaces”. What or where were these open spaces? Who or what types of mortars were employed and who are the “experts” who fired these weapons; what was their training and when was the last time they had fired these weapons using live rounds? Was the training conducted locally, and if so at which range? It is important to reveal the truth behind what appears to be the reckless use of an indirect fire asset, a mortar. I cannot understand how the use of mortars could have been sanctioned, given the nature of the threat and the proximity to the civilian population and built-up areas.

Above all, we sincerely hope this Commission of Enquiry will uncover the real nature of the Tivoli operation. Was it some sort of counter-insurgency operation, or was it an operation to assist the police against gunmen and criminals? Or was it a warlike mission, before which a commander of the JDF told his troops , “…tonight we go to war and some of you might not return…”? Determining which of these categories of military operation our troops were engaged in at Tivoli may explain whether these events will be conspicuous in military annals of how not to do it, or be recorded as one big disastrously botched operation, lacking in leadership and concern for human life. It is my respectful recommendation that an unbiased military expert be employed to advise the commission on military matters.

Finally, the public defender should be commended on a good interim report, and his reference to the British BloodySunday massacre proceedings is relevant. The Commissioner of the Tivoli inquiry would hopefully study the respective reports of that inquiry to avoid committing similar mistakes made by Lord Widgery, who chaired the first BloodySunday inquiry.
Yours faithfully,

Colonel Allan Douglas

Monday, April 21, 2014

Does The Prosecution "Deserve" The Right To Appeal?

The case for legislating the Prosecution's Right To Appeal Against An Acquittal In Criminal Cases  in Jamaica has been ventilated in a document emanating from the Office of the Director of Public Prosecutions.Like any other case, the arguments presented have to be assessed before any conclusion can be made concerning the desirability,and/or appropriateness  of such in our judicial system.

In a letter entitled "Prosecution Deserves Right To Appeal" published in The Gleaner, Saturday, April 19, 2014 Glenn Tucker states, inter alia, "asymmetry twists the criminal procedure towards the interest of defendants".

 For what it is worth, that argument is hinged on two questionable predispositions: (a) the DPP's concern stems from the fact that the judge could make a error in law and where that exists, the matter should be revisited; and (b) there should be freedom from bias against both the defendant and the prosecution.

Let us examine briefly the position of the Prosecution "deserving" such a right.

  • Judges make errors in law every day and this forms the basis of appeals. However, it is the convicted who must make such an appeal and stand the attendant costs. If the judge makes an error in law and the convicted does not take the initiative and appeals, he serves his time or pays his fine. 

Suffice it to state that the DPP's concern stems from a multiplicity of factors and is not confined to the error in law.(see our "The Prosecution's Right To Appeal")

  • The much touted adage of the scales of justice being evenly balanced is more myth than reality. It is the state that promulgates the laws with accompanying sanctions for violations; recruit, pay and equip the police force to apprehend violators: select the judges; establish and maintain (poorly) the court houses and prisons; collect the fines; and maintain the criminal records. Appeals are made to a panel of judge selected and paid by the state. Interestingly, the majority of judges have spent time in the prosecution's office and see their career path as culminating in the Court of Appeal. Appeals from the RM courts depend on the notes taken by the sitting trial judge.  

It may be agued that attempts have been made in the recent past to lessen the imbalance in favour of the state usually under the rubric of "Human Rights" and with the aid of foreign intervention. 

Given that there seems to be implementation hitches, then it seems reasonable to take a position that there should be a phased implementation of such a right based on the addressing of the myriad of problems besetting the administration of justice, especially in the criminal jurisdiction. The supporting infrastructure is woefully absent.

The Prosecution having very limited and circumscribed right of appeal has been rejected by the DPP on the basis "that no useful purpose is served to law and justice'".

Sunday, April 20, 2014

The Prosecution's Right To Appeal

The right of appeal by the prosecution against an acquittal in criminal cases has been placed once again on the front burner of public discussion by the learned DPP, Paula Llewellyn QC in the aftermath of the Kern Spencer acquittal in the "Cuban Lightbulb Trial". The DPP has not shirked from declaring publicly that the Senior Resident Magistrate made "an error in law" by upholding the no- case submissions.

In a document dated October 7, 2013 the Office of the Director of Public Prosecutions put out its case for the Parliament to legislate such a right.. It is a very detailed document citing legal cases in support and giving quotations from eminent juris. To those unschooled in the law, this is heavy stuff--liberally infused with an overabundance of legalese.

In this post we attempt to faithfully summarize some of  the main positions enunciated. We do so without indulging at this time in any assessment of whether the prosecution in Jamaica "deserves" such a right.

  • Neither the Constitution nor the Criminal Justice (Administration) Act confer in express terms any right of appeal on the Director of Public Prosecutions.
  • The rights of the prosecution are limited to only those conferred by virtue of s.35 of the Judicature (Appellate) Jurisdiction Act which allows for the DPP to appeal decisions of the Court of Appeal on very circumscribed grounds,to wit,  a point of law of exceptional public importance
  • The 2010 amendment to the Bail Act also confers a right of appeal to the Crown against the grant of bail.
  • Our regional neighbours: Trinidad & Tobago, Belize, Cayman Islands and Dominica,  to varying extents, have instituted the prosecution's right to appeal under specified circumstances.
  • The prosecution has no right of appeal in circumstances where:-

[1]   the judge makes an erroneous ruling adverse to the Prosecution

[2]   where the verdict of the jury is perverse and unreasonable and goes against the weight of the
        evidence and common sense

[3]   where the judge [shows bias towards the defernce] and does not give the prosecution the proper 
        consideration and where they have at times forced the prosecution to throw out cases

[4]   where verdicts have been procured by actions designed to pervert the course of justice.

Monday, April 14, 2014

Tivoli COE: Ballistic Testing Priority

The GOJ has announced a budget of $100m for the Tivoli Commission of Enquiry; in addition to identifying a replacement for Velma Hylton QC. However, whilst the the candidate's name has been forwarded to the Leader of the Opposition in the "consultation ritual", there is still no indication of the proposed start up date.

Of course it will be argued that such will depend, in part, on the availability of the Commissioners, the supporting staff, as well as the outstanding ballistics report - which its is said to have bedeviled the now retired Public Defender.

Interesting the tension between the Office of the Public Defender and the Independent Commission of Investigation (INDECOM) as to the apportionment of blame for the delay seemed to be resolved with the former (probably as a departing gift) sending copies of some 42 files to the latter (without the public being given any reasons).

These constitute the set that-- in the view of the Public Defender after analysing the respective post- mortem reports, along with other information gathered--- death could have been the result  extra-judicial killings by the members of the Security Forces involved in the operation,

                             Concern:   The Priority

It has been reported that at least 76 persons were killed during the operation.  Only some 42 have been identified by the Public Defender as possible " extra- judicial killings". Hence INDECOM has decided to "prioritize" the testing to those 42, citing the cost involved, plus the possibility that the tests of the others may not provide any useful information.

 The ballistic report has the potential for establishing scientifically from which weapon the fatal bullet was fired. The validity of the report depends to large measure on the integrity of the material collected, the conditions of its storage, the tests conducted with the weapons submitted for testing.

With so many variables are involved it is very likely  that some tests will prove "inconclusive" Given that 34 cases have been excluded before the comparison testing and assuming say a 50%  confirmation, then what the public is left with is a possible 21 cases linked to the Security Forces---a far cry from the reported 76-- a figure that has been said to be grossly underestimated.

  • Is that to be explained/dismissed as "collateral damage"?
  • What is the inference to be drawn regarding the 55-- which are not prioritized or tested "inconclusive"?
  • What scientific analysis will be undertaken of those 55?
There lies the possibility of a big "let down" in the eyes of an already cynical public.

The ballistics must be accompanied by the post-mortem reports. It is the latter that will provide the critical information surrounding the circumstance under which the 76 met their deaths.
With the passage of time eye witness evidence becomes increasingly unreliable. Greater reliance has  to be placed on scientific and documentary evidence.
Any sincere attempt to unearth the truth must take into account both the ballistic reports and the post- motems. The latter have been completed: we await the former with an informed expectation.

Thursday, April 3, 2014

Kern Spencer Trial: The Ruling

The Resident Magistrate Court is not a court of record i.e. there is no court stenographer recording verbatim the proceedings of the trial. In case of an appeal, reliance is placed on the notes compiled by the sitting Resident Magistrate.

Not having access to the RM's notes, resort has to be made by that recorded by one or both parties.
Below is the "transcribed verbatim by a member of the prosecution's team".

We have no way of attesting to the veracity of such ; and its posting is primarily to complete the picture--having published both No Case Submissions and the Crown's Response.

R v Kern Spencer and Coleen Wright
Ruling of  on Application for Permanent Stay of Proceedings and No Case Submission
Her Honour Ms. Judith Pusey states:
“No case submission was made by the defence and an application for the stay of the proceedings on the basis of delay and prosecutorial misconduct.
The credibility of Rodney Chin was put in issue.
In this case the Crown is relying on circumstantial evidence.”
(The Senior Resident Magistrate cited the well-known direction from Lord Parker’s Practice Note [1962] 1 All ER 448). She then went on to state:
“There are two things to note:
  1. Information 2803/08 charges Colleen Wright with transferring criminal property outside of Jamaica. The prosecution concede that they have not proved an essential element of the charge. There is no need to rule on this information.
  2. Information 2793/08 and 2791/08 charge Kern Spencer with transferring criminal property. Both informations speak to the same issue and are duplications. One should be withdrawn and the prosecution determine which one they are proceeding on.

The issue of delay resulting in stay and prosecutorial misconduct were properly raised. Having examined the evidence adduced and the manner in which the trial proceeded it is unnecessary to determine these issues. Both accused should not be called upon to answer.
The accused are dismissed in relation to the charges.”