Dear Editor,
Earlier this year after four investigators were employed by the Police Complaints Authority I questioned whether or not they were legally empowered to investigate breaches of discipline under section 4 (a-z) of the Police (Discipline) Act Chapter 17:01. I felt that section 5(1) of the Act debars them from doing so. This Act stipulates the rank a person must hold in order for him or her to conduct investigations into breaches of discipline and that the investigators did not fall within that ambit.
Section 5(1) states, “Every alleged commission of an offence against discipline under this Act shall be investigated as soon as practicable by a member of the Force not below the rank of sergeant and of a higher rank than the member of the Force who is alleged to have committed the offence”. From a layman’s point of view the section is very pellucid. There is no legal morass. The person conducting the investigation must be a member of the Force holding the rank of sergeant and of a higher rank than the rank who has committed the alleged offence. Those employed by the Authority held the ranks of senior superintendent, chief inspector, inspector and captain in the police and army respectively prior to their retirement. Their appointments ceased when they exited the Force and Army. I know them well. They are all excellent investigators. Frederick Caesar is a dogged investigator. He is a graduate from the Federal Bureau of Investigation National Academy. He graduated the same time with Mr. Winston Felix MP, Minister of Citizenship. They cannot walk into the Authority with the ranks they previously held.
The Commissioner of Police or the Police Service Commission must first appoint/promote them to the requisite rank in order for them to legally perform the task as investigating officers in accordance with section 5(1) of the Act. Section 5, (2)-(11) also gives clear directions as to what must be done in relation to the investigation of offences against discipline. The investigators may also be breaching sections (2) and (3). However, due to constraint of space l will confine my confabulation to section 5(1) of the Act. Please permit me to backtrack a bit. During this year the Authority and I exchanged letters to the editor. The Authority did not address my specific fact in issue. Instead, he posited that the investigators were not investigating. They were gathering information as a result of complaints made to the PCA. Reports are then sent to the Commissioner of Police and the Police Service Commission with recommendation for disciplinary action against defaulting ranks wherever applicable. If interviewing complainants and witnesses; interrogating alleged defaulters; visiting scenes of offences; collecting and seizing materials to be tendered as exhibits at a disciplinary inquiry as is the modus of the investigators is not investigating, well then, Hurricane Matthew did not batter Haiti and Florida’s East Coast recently. The Chairman recommended that for my edification l read the Disciplined Forces Commission Report and the Police Complaints Authority Act. I perused both documents. In relation to Inquiry into Complaints of Misconduct by Members of the Force, Section 7(1) of the Police Complaints Authority Act states, “The provision of this Part shall be in addition to, and not in derogation of, the provisions of the Police (Discipline) Act.” The Act is very clear on the procedure on receipt of complaints. Section 9 (b) informs “where the Authority does not reject a complaint under paragraph (a), he shall refer it to the Commissioner for investigation and inquiry, under the Police (Discipline) Act.” Section 9 (2) of the Act states, “When a complaint is referred to the Commissioner under subsection (1) by the Authority, the Commissioner shall cause the complaint to be investigated expeditiously under section 5 of the Police (Discipline) Act and a copy of the report of the investigating officer referred to in section 5(4) of that Act shall be forwarded by the Commissioner, as soon as possible after the report is submitted, to the Authority for his comments.” For the sake of emphasis let me repeat that the investigating officer must be a sergeant and of a rank higher than the rank who is alleged to have committed the offence in accordance with Section 5(1) of the Police (Discipline) Act alluded to earlier.
Apparently the investigators employed by the Authority who are not members of the Force and have no rank are breaching section 5(1) by investigating alleged breaches of discipline committed by members of Force and submitting reports to the Commissioner for action to be taken. The Police Complaints Act supports the Police (Discipline) Act. It is in addition to, and not in derogation of the Police (Discipline) Act. It has not changed a word in the Police (Discipline) Act, more so the important section 5 which specifically deals with investigation of offences against discipline. The word investigator is not mentioned in the Police Complaints Act. The Disciplined Forces Commission recommended that the PCA be provided with an investigative team (recommendations 58-60 refers). These recommendations are what they are- unadulterated recommendations. To implement them legislation must be put in place to give the employed PCA’s investigators the lawful power to investigate disciplinary breaches under the Police (Discipline) Act. I felt that by now the Authority would have quietly taken steps to correct the sad state of affairs by ensuring that the investigators were given the appropriate ranks to investigate breaches of discipline or that the Act would have been amended to empower them or that they stop investigating breaches of discipline under the Police (Discipline) Act Chapter 17:01. Instead, the illegal activities continue unabated. As a result i am forced to re-open my case and make some further submissions.
Since my last letter to the editor in relation to the issue in question neither the Police Commissioner nor the Police Service Commission has bestowed the requisite ranks on the investigators so that they can properly investigate breaches of discipline under the Police (Discipline) Act neither was the Act amended to accommodate them. They still continue to conduct investigation and submit reports to the GPF and perhaps the PSC for action to be taken against alleged defaulting members of the Force. Stabroek News on October 03, 2016 reported on the activities of the PCA over the past months in an article under the caption, “Sixty-eight complaints against cops for neglect of duty-PCA Chairman”. There are also plans to employ more investigators. More investigators will mean more irregular investigations under the present system.
I did not look into the crystal ball, but here is what is likely to happen in time to come. A serious allegation is made against a member of the GPF to the Authority. One of the current investigators conducts an investigation. A report is submitted to the GPF recommending disciplinary charges against the rank. The GPF agrees with the recommendation and directs that charges be laid. The rank is charged. He pleads not guilty. An inquiry is conducted. In order to prove his case the Presenting Officer calls the investigator to testify. The defaulter or friend moves to suppress the evidence obtained by the investigator in the course of his investigation. He submits that it was obtained as a result of a breach of section 5(1) of the Police (Discipline) Act Chapter 17:01. It is the forbidden fruit of a poisonous tree. He argues that the investigator should not be allowed to testify in relation to the evidence he adduced during the investigation and that there is no case for the defaulter to answer. The fair-minded trial officer agrees with the submission and recommends to the disciplinary authority that the case against the defaulter be dismissed. The disciplinary authority agrees with the officer who conducts the inquiry and the defaulter is set free of the charge, all because the investigator breached section 5(1) of the Police (Discipline) Act. Would this be considered a travesty of justice? Several persons including the aggrieved complainant and I will think so. Generally, whenever members of the Guyana Police Force are found guilty of breaching the disciplinary code they are dealt with in a swift, certain and appropriate manner. This may include dismissal, reduction in rank, interdiction, loss of pay, transfer, denied promotion, loss of seniority, verbal and written warning. Recently and quite correctly David Ramnarine DSM, Acting Commissioner of Police pressed the delete button to abbreviate the services of fifteen members of the GPF. I understand that his finger is still on that button. In enforcing this type of discipline it is imperative that investigators and the disciplinary authority do not trample on the rights of the police as laid down in law however infinitesimal they may be. The rights of police ranks that are embedded in the Laws of Guyana must be protected. Hammer the police personnel whenever they transgress, but, please do not trample on their rights.
Yours faithfully.
Clinton Conway
Assistant Commissioner Police
(Retired)
