Stopping Illegal Stop and Search
The police have the authority to stop and question you at any time but for them to search you or your property, they must either have seen you commit a crime, have reasonable suspicion to believe you committed a crime, or have a judge-issued search warrant. A random search, especially a stop & search, is likely to breach your rights as guaranteed by the Charter of Rights.
The Jamaican Charter of Rights guarantees that no person shall be subject to the search of his person or his property except with his own consent. The Charter also provides that no person shall be deprived of his freedom of movement, meaning the right to move freely throughout Jamaica. These rights have been identified by our Courts to be not mere trappings which go necessarily with statehood, but the product of over 400 years of conflict, struggle and sacrifice.
False imprisonment arises where a person is detained against his will without legal justification. No person is to be deprived of his personal liberty unless it is permitted by our laws. Any person who is unlawfully arrested or detained by any other person is entitled to compensation from that person for the arrest.
The story is told of a young, bright-eyed and bushy-tailed, law student who was traveling as a passenger in a Toyota Axio with two friends on their way to a gathering. En route, they were signaled to stop by police officers who were parked along the roadway. When the Toyota Axio stopped, one of the officers ordered the occupants out of the vehicle and demanded that they each subject themselves to a search by the police. I heard the law student, naïve lad he was, cited the decision of the Honourable Mr. Justice Batts, Puisne Judge of the Supreme Court of Jamaica from a case called Gary Hemans v the Attorney General of Jamaica. The story has it that the law student cited down to paragraph 57 where the learned Judge said: “It Is still the law of this nation that persons under the Queen’s peace are entitled to freedom from search of their person or property unless such a search is legally justified.” The law student insisted that in the absence of a justification, the search was illegal.
In the Gary Hemans case, the Justice Batts held in that it is not a lawful reason to stop and search a motorcar because cars with similar features are often stolen and used in the commission of crime. The learned Judge explained it would really be no different saying that an individual walking on the road bears “similar features” to most persons convicted of crime. Gary Hemans, the Claimant in the case, had been arrested and charged by the police. He later successfully sued the State for false imprisonment and malicious prosecution and was awarded over $2.8M.
So, what happened with the law student? The word on the street is he resisted the demand for a search and relied on the Gary Hemans case. One of the police officers curtly informed the law student, “You can’t tell me how fi do my job”.
The student was arrested, taken away in handcuffs in the back of a marked police vehicle to a police station where he was held for 3 hours and charged with failure to comply with a lawful order. What is the lawful order you may ask? Presumably for him to subject himself to a search. The charge was obviously not advanced at all and the case against the law student was thrown out of Court.
A breach of the constitutional rights to freedom of movement and freedom from unlawful searches can give rise to a claim and entitle you to compensation. Your rights, identified as the product of over 400 years of conflict, struggle and sacrifice, can be restricted. For the past 7 years Jamaicans have experienced prolonged restrictions on our freedom of movement by various methods such as a state of public emergency, curfew and Zone of Special Operation. The onset of covid-19 exacerbated what was our situation and brought with it a new set of lockdowns under the Disaster Risk Management Act. Whenever these powers are invoked, some rights are suspended, and the police have greater power to search and arrest.
We know how it should work in theory but we have accepted the “minor inconveniences” that abrogate, abridge or infringe on our rights for the greater good of the society as a whole for a plethora of reasons including to combat crime. Perhaps it is time we rethink that strategy and replace it with one that has its foundation in civil rights. After all, are we not still under the Jubilee Queen’s peace?
Jahmar Clarke is an Associate at Myers, Fletcher & Gordon, and is a member of the firm’s Litigation Department. Jahmar may be contacted via Jahmar.Clarke@mfg.com.jm or www.myersfletcher.com. This article is for general information purposes only and does not constitute legal advice.