Last month, Mr. Terrence Williams, the Commissioner of the Commission of Independent Investigations (INDECOM) gave a public lecture on the Right to Life held by the Independent Jamaican Council for Human Right (1998) Ltd. Mr. Williams touched on many topics regarding the right to life but perhaps the most fascinating yet disturbing issue he discussed was that of the fleeing felon principle which Jamaica still adheres to.
The Common Law Position
The old common law rule allows for the use of deadly force in apprehending felons. However, this rule has been denounced and reformed in some jurisdictions including England and the United States. Jamaica’s reliance on the common law was articulated in the Jamaican Court of Appeal case of R v Astley Ricketts where a Winston Moore was perpetrating a fraud by presenting a cheque at a commercial bank. Moore soon realized that the bank officer was suspicious of what he was doing. He then fled and a bank employee alerted Special Constable Astley Ricketts, the bank’s security officer, to apprehend him. Ricketts, with his firearm drawn, held Moore momentarily with one hand but Moore forcibly released himself protesting his innocence. Moore walked away and Ricketts continued to pursue him. Ricketts then fired three shots, killing Moore who was an unarmed and non-violent suspect. Moore died because he had resisted apprehension. A jury convicted Ricketts for murder, but his conviction was quashed by the Jamaican Court of Appeal on the basis that the trial judge had failed to direct the jury on the principles governing the apprehension of a fleeing felon. In their unanimous decision their lordships criticized the trial judge ruling that the summation had:
“diverted them (i.e. the jury) from the single-minded consideration as to whether in the given circumstances the appellant had acted reasonably in firing at the deceased with a view to apprehend him on the reasonable suspicion that he had committed a felony in the bank.”
Mr. Williams was of the view that while it is desirable that all suspected offenders surrender or be apprehended so that they may face justice, it was antediluvian to justify the use of deadly force to apprehend an unarmed non-violent felon. There is further support of Mr. Williams’ view of the antiquated nature of the common law postion. Smith and Hogan described the principle as being “astonishing when viewed in the light of modern conditions and attitudes” and went on to give examples: “If D steals my handkerchief and, being fleeter of foot than I, is making his escape, may I lawfully shoot him down?.. It is incredible that this is the law.”
Some jurisdictions have been progressive in modifying the common law position over time or doing away with it altogether and replacing it with statutory provisions. An example of this is in the English Report of the Criminal Code Bill Commission (1879) which stated that “ We take one great principle of common law to be, that though it sanctions the defence of a man’s person, liberty and property against illegal violence, and permits the use of force to prevent crimes, to preserve public peace and to bring offenders to justice, yet all this is subjects to the restriction that the force used is necessary; that is, that the mischief sought to be prevented could not be prevented by a less violent means; and that the mischief done by, or which might reasonably be anticipated from the force used is not disproportioned to the injury or mischief which it is intended to prevent.” Smith and Hogan note that although these words were not uttered from the bench, the report was the work of leading jurists of the day and has been cited in english case law. There has also been further progress in England and Wales where the common law rule has been replaced by Section 3 of the Criminal Law Act 1967 which stipulates:
“3 (1) A person may use such force as is reasonable in the circumstances in the prevention of crime, or in effecting or assisting in the lawful arrest of offenders or suspected offenders or of persons unlawfully at large.” The crux of this progression may be found in the use of the term “reasonable in the circumstance in the prevention of crime.” Therefore, this includes a further requirement of reasonableness which was not seen before in the old common law rule.
The Commission was quick to note that unlike in England, there is no Jamaican statutory provision justifying the use of deadly force to apprehend a suspect. A Jamaican constable would therefore have to seek to rely on the common law principles of the fleeing felon. However, it is good to note that the JCF Use of Force Policy recognises the need for proportionality in the application of deadly force. Nevertheless, this is clearly not sufficient to ensure that deadly force is not used arbitrarily by our armed forces.
Right to Life vs Fleeing Felon Principle
In his presentation, Mr. Williams observed that the right to life involves:
- A substantive obligation not to take life.
- Another substantive obligation to safeguard and protect life, and
- A procedural obligation for independent, adequate and effective investigation of taking the life.
It is easy to see how this fleeing felon principle directly conflicts with our right to life. According to our newly enacted Charter of Fundamental Rights and Freedoms (Constitutional Amendment) Act 2011, the right to life continues to be recognized but without any specified exception for the use of deadly force in effecting an arrest. The only specified exception is to carry out a sentence of the court. It should also be considered that all rights in the Charter are subject to certain limitations. Parliament may pass laws and the agents of the State may act in a manner that infringes on these rights if this is “demonstrably justifiably in a free and democratic society”. In the case of Re State v Walters et ux, the court was of the opinion that limiting the right to life must come from a very compelling public interest since it has been argued that the right to life is one of the fundamental rights which must be strictly construed and may prevail over other guaranteed rights.
It is the Commission’s view that the common law principles on the use of deadly force to apprehend a fleeing felon are uncertain and incompatible with the Charter of Fundamental Rights. The common law rule is old and was articulated in a time when police forces were not equipped with the sophisticated weaponry they have now. The Commission also noted that this important issue needs to clarified as it leads to an uncertain and unfair state of affairs for the police to work in. If the an armed constable uses deadly force in a disproportionate or unreasonable way on a fleeing felon he may be liable for murder. On the flip side, if that armed constable refrains from using deadly force on a fleeing felon and that felon inflicts harm on a bystander, the constable may be liable for neglecting his duty and infringing the right to life of the bystander. This puts constables in a precarious position which must be clarified by a reform of the law. The Commission suggested that a statutory provision be enacted which will justify the use of potentially deadly force to arrest in the following circumstances:
a). where the arresting person has reasonable suspicion that the arrestee has committed a serious offence involving the threat or infliction of serious bodily harm to another;
b). the use of potentially deadly force was proportionate and the only reasonable possible way to apprehend the suspect; and
c) there were reasonable grounds to suspect that the arrestee presented an immediate threat of serious bodily harm to the arrestor or another person.
It is clear from Mr. Williams’ presentation that law reform is needed on our common law position on the use of deadly force in apprehending a fleeing felon. In a state where extra-judicial killings and the murder rate are high we need to make adequate changes to the law so that we are able to keep the general population safe yet refrain from infringing on anyone’s right to life.
Publications Committee Chairperson (2013-2014)