Address: Opening of the Police Complaints Authority’s (PCA) Conference 2016

Address by His Excellency Anthony Thomas Aquinas Carmona ORTT, SC President of The Republic of Trinidad And Tobago at the Opening of the Police Complaints Authority’s (PCA) Conference 2016 at Hyatt Regency Hotel, Trinidad – March 16, 2016

OVERSIGHT OF LAW ENFORCEMENT – Challenges and Benefits of Oversight Bodies and Civilian Oversight Institutions

Any institutional authority with the remit of law enforcement oversight warrants a deliberate effort to establish its fortitude, retain its respect and confidence and protect its independence.

Public confidence in oversight bodies such as the Police Complaints Authority to independently and effectively ‘police the police’ is as important as the confidence required and reposed in the police themselves to protect the rights of the citizenry, justly and fairly and to act at all times with utmost integrity.

So great is public’s pause on law enforcement that the words “police” and “integrity” when juxtaposed can sometimes amount to a type of misnomer.  The public and any self-respecting democracy intuitively crave a Police Service that is free of corruption, political influence, financial favours and misconduct in the course of executing its duties.  A simple google search under the rubric “public confidence in police”  speaks of an international consensus and concern from India to Nigeria to England to Columbia and the Caribbean, of the contempt, disquiet and lack of confidence that the public harbours against the men and women who are sworn to protect and serve.

This broad brush of suspicion is sometimes applied unevenly and has the capacity to fuel a skewed public perception of the integrity of the police service.  The irony is that many of us in this audience will vouch for the diligence, competence and integrity of police officers who daily patrol the streets of challenging communities, placing life and limb at risk in the conduct of their police duties.  As a former Prosecutor in the DPP’s Department for some 18 years, I have come across officers in law enforcement who refuse to fabricate evidence to ensure the conviction of a notorious gangster; who will not brutalise and coerce an accused person into a signing a confession statement; and who are sticklers for following assiduously the Standing Orders of the Police Service and the Judges’ Rules.

Regrettably, I also know the other side of law enforcement, having prosecuted officers for misbehaviour in public office, murder and conspiracy to murder, perverting the course of public justice and possession of dangerous drugs for the purpose of trafficking.  In short, men in uniform who are unfit guardians and gatekeepers of our system of justice, due process and the rule of law; and therein lies the raison de e’tre of civilian oversight- it provides a system of access for redress to the public for police misconduct and malpractice in a fair, just, transparent and independent manner; and if in fact this process of oversight cleans up the conduct and image of the Police Service, then the mechanisms and organisations that drive civilian oversight, will not have acted in vain.

In the paper titled, ‘Civilian Oversight of Policing- Lessons from the Literature’ presented at the 2002 Global Meeting on Civilian Oversight of Police in Los Angeles, Joel Miller and Cybele Merrick posited the benefits of oversight:
Arguments for oversight have often focused on the effectiveness of addressing complaints, misconduct or broader police policy.  However, the appearance to the community that complaints, misconduct or police policy are addressed in a transparent and fair way is also an important argument for oversight.  Civilian oversight of policing can also be seen as consistent with democracy, particularly given the significant power the police holds over citizens.”

Some 14 years later, these observations on the need for civilian oversight are still valid, even though civilian oversight organisations are often burdened by a lack of public confidence sometimes; severe resource restrictions and perceived political intrusion.  Throughout the region, we are still trying to navigate among stakeholders to fully appreciate the cause and need of impartial civilian oversight.  Simpliciter, and regrettably, we have grown suspicious about any and every thing.  In my view, as a nation and region, we should be far past establishing the relevance of civilian oversight in ensuring that the civil rights of citizens are protected against abuses, unequal treatment and the excessive use of force by law enforcement agencies.

The outcry for effective civilian oversight by the public is a response- sometimes, more a reaction- seldom dispassionate, to high profile allegations of police brutality, misconduct and abuse of power.  Civilian oversight therefore, ought to be a priority in the world’s democracies, in part because of the increased information and communication of police misconduct disseminated via social media and the internet.  The age of technology demands it.  Camera phones are responsible for bringing much law enforcement brutality and misconduct to light just as they are responsible for exonerating law enforcement personnel from improper and false allegations of misconduct.  With the click of a mouse, police misconduct caught on cell phones, cameras and videos in Trinidad and Tobago, in matters of racial profiling for example, in the United States, can go viral in minutes.  This is the power of technology and the influence it has on ensuring the relevance of civilian oversight bodies to ensure police accountability, transparency and conduct.  With technology, there is created a sense of urgency for the PCA and other civilian oversight bodies to address the concerns of a discerning public with the required immediacy.  In order to respond adequately, quickly and effectively, these oversight bodies must be well-manned, well-resourced and technologically savvy to match the urgency of NOW.

The two aims of civilian oversight- public redress and an effective police service- are not mutually exclusive.  Sometimes there appears to be a type of tacit war between oversight institutions and the police service, which some commentators have stated is the result of a pervasive “batch” mentality.  This must stop.

Another critical challenge in oversight of police misconduct is the competing views by the parties themselves that the other is ill fit-to judge their duties.  The argument continues to rage on.  Law enforcement agencies often assert that a panel of civilians should not be made to judge the split second decision that has to be made to shoot or not to shoot a young man running at full pace, tattooed tears running from his eyes- and this is often an indication of lives taken- carrying what appears to be a gun.

And then, on the other hand, civilian oversight bodies assert the need for a democratic system of checks and balances based on the premise that the ‘police cannot police the police’.  This type of historical distrust between the police and civilian oversight institutions does nothing to promote public confidence in either system.  In Trinidad and Tobago, the legislation attempts to arrest this problem by allowing for the appointment of members of the PCA, particularly of the Director and Deputy Director, on the joint advice of the Prime Minister and Leader of the Opposition.

And there is yet another tool that can be considered- that of mediation and Alternative Dispute Resolution (ADR), which can further assist the process of building confidence in oversight bodies both from the public and law enforcement perspective.

In the PACE Law Review, Volume 30, Issue 5 Fall 2010, Barbara Attard stated:
“More and more oversight agencies are establishing mediation as a method of resolving complaints.  While programs differ in terms of determining types of cases that can be mediated, traditional misconduct investigations can have limited efficacy in complaints that are one on one and relate to discourtesy or a poor attitude.  The majority of such cases result in a finding of “not sustained” (insufficient evidence), an outcome that is not satisfactory to either party and has no value in modifying conduct.  In successfully mediated complaints, both the complainant and the officer can gain an understanding of why the other person acted as he or she did.  This understanding can change behaviours in a more meaningful and effective way.”

We therefore must all ensure that public confidence in the efficiency, independence and authority of the civilian oversight body in addressing police misconduct in an impartial and timely manner are maintained.  Independence of civilian oversight institutions is core to garnering public confidence in the system, for indeed the question may well be asked, if we are policing the police, who is overseeing the overseers?

Civilian oversight institutions must be manned (or “womanned”) by competent and independent personnel who are best placed to judge the actions, policies and conduct of police officers in the execution of their duty in a way that engenders the public’s confidence in the processes and operations of that oversight institution.

In Trinidad and Tobago and other islands of the Caribbean, the societies are small- everybody knows everybody- but independence and the appearance of independence in oversight law enforcement bodies and their staff are of paramount importance in not only promoting public confidence but as well, in carrying out the very functions with which they are charged- in receiving, investigating and making impartial recommendations in any police misconduct case.  The significance of absolute independence and the appearance of same in the oversight body cannot be underscored.

Speaking of our justice system- more so, the criminal justice system- it is, in my humble view, imperative to recognise that while interdependence of the different components- the Office of the Director of Public Prosecutions (DPP), the Police Complaints Authority (PCA), the Police Service Commission (PSC), the police service- makes the entire wheel of justice turn, each component is charged with specific duties and functions that are unique to its particular expertise.  There is a healthy ongoing debate in the public domain, both in support of and against the call for the PCA to be given prosecutorial powers to supplement its current powers to investigate complaints against police officers and make recommendations to the DPP and/or the Commissioner of Police.  As a former State Prosecutor and Criminal Judge, I am sharply aware of the pressures and extreme workload and caseload that burden the Office of the DPP.  I am equally cognizant of the sanctity of section 90 of the Constitution of the Republic of Trinidad and Tobago, which has survived generations, governments, a coup and rising crime.  The strength and inviolability of the Constitution must be the premise upon which, as a nation, we seek to balance the needs, benefits and additional coercive powers proposed to the PCA on the one hand against the constitutionally-guarded independence and integrity of the Office of the DPP on the other.

This Conference presents an invaluable opportunity to discuss, with the myriad expertise here present, these crucial matters- should a Police Complaints Authority be granted prosecutorial powers?  How will that compete against the constitutionally-enshrined exclusivity clause for prosecutions to the DPP to be found in most Commonwealth constitutions? Is it a viable option to provide the DPP’s Office with a caucus of independent investigators to supplement or even take over police investigations akin to what obtains in the District Attorney’s Office in the United States? If indeed powers are given to the PCA to prosecute, will it be subject to a prosecutorial fiat by the DPP?  Has the possibility been considered of manning the DPP’s Office with a special department focused on police misconduct cases and referrals? These matters should be on the front burner of discussions without my getting into the merits or demerits of same.

In order for the civilian oversight movement to succeed in transforming law enforcement- and succeed it must- it must be backed by stakeholders at all levels who are not afraid to confront issues of police misconduct and who embrace fully and without question, the values of independent oversight.

Ladies and gentlemen, the growth of public confidence in police conduct and accountability requires sound, stringent and uncompromising oversight and effort by independent civilian institutions.  I applaud the effort and vision of the PCA in hosting this conference, which I am certain will serve the civilian oversight institutions of Trinidad and Tobago and the wider region well.  Indeed, occasions like the present are a sobering reminder of that which is sacrosanct – that public good and confidence in the systems of any progressive democracy require oversight and not hindsight.

I wish you all successful, informed discussions as you work towards a draft constitution and enhanced oversight mechanisms with implementable solutions and implantable timelines and workable policies.

I thank you.