The Supreme Court on Tuesday refused the application for leave to apply for judicial review by former Education Minister Ruel Reid and Caribbean Maritime University (CMU) President Professor Fritz Pinnock, challenging the criminal charges filed against them by the Financial Investigations Division (FID).
The decision was handed down by Chief Justice Bryan Sykes a week after the matter was heard in chambers.
Attorneys representing Reid and Pinnock filed the application last October seeking to nullify the charges of breaches of the Corruption Prevention Act, conspiracy to defraud, misconduct in a public office at common law and breaches of the Proceeds of Crime Act.
The arrests followed months of controversy surrounding contract procurements at CMU involving people close to the former education minister. For months, the matter played out before Parliament’s Public Administration and Appropriations Committee, from whom Pinnock and officials of the education ministry came under pressure over the contracts.
There were shock waves across the country when Reid was sacked by Prime Minister Andrew Holness in March 2018. The two accused filed the application on the grounds that the FID did not have the power to arrest and charge anyone, given that it is an investigative body.
Reid, his wife Sharen, their daughter Sharelle, as well as Professor Pinnock and Jamaica Labour Party Councillor Kim Brown Lawrence were arrested and charged on October 9 in relation to a corruption probe at CMU and the education ministry.
They were all granted bail in the St Andrew Parish Court the following day.
On Tuesday, Justice Sykes said the court is of the view that the Financial Investigations Division Act (FIDA) does not authorise the body to arrest and charge anyone or authorise it to initiate charges and initiate an arrest.
However, he explained that when the FID is investigating it can use certain powers under FIDA.
FIDA, he said, enables the FID to gain access to information and use investigative techniques that are not available to the Jamaica Constabulary Force (JCF) at large. “This court is of the view that the police officers in this case who arrested and charged the applicants were never designated under Section 2 of FIDA. Any power of arrest and charge that they did could only be by virtue of the JCF powers found under the Constabulary Force Act,” Justice Sykes said.
Consequently, the court determined that it was not FID that arrested and charged the applicants, but JCF officers in their capacity as police officers.
According to the judgement, this still leaves the question of whether the JCF officers utilised any power under FIDA when they were not authorised to. “If yes, that might raise admissibility issues which can be addressed during the criminal trial,” Sykes said.
He pointed out, for example, that there is no power under the Constabulary Force Act for the ordinary JCF member to obtain a production order, restraint order, or account monitoring order under FIDA. “These are exceptional powers conferred by statute on specific statutory functionaries who can only use those powers in the circumstances and the manner prescribed by the respective statutes,” he said.
Sykes also said the court came to its position on the basis of the absence of evidence that the police officers were authorised officers under FIDA.
“I make no pronouncement on the credibility of any of the deponents in this case. This means that this decision must not be understood as indicating that the deponents for the respondents were found to be more credible than applicants. Neither is the converse the case. There are adequate means of redress open to the applicants, both during the trial and in the event of an adverse outcome, by an appeal. The mechanism of judicial review is not an appropriate one to raise questions of admissibility of evidence,” Justice Sykes stated.
The applicants had also sought an order prohibiting the FID from taking steps to seek and obtain a fiat from the director of public prosecutions to prosecute them; and an order of certiorari to quash the charges brought against them, and a stay of proceedings.
