Thursday, November 25, 2004

Civilian Oversight of Law Enforcement, Report

- Trip report by Don Mitchell QC

At the Request of His Excellency, I attended a conference in Bermuda held 19-21 November 2004. It was organized by the FCO, the Commonwealth Secretariat, and the Bermuda Government. The topic was “civilian oversight of law enforcement.” Also attending from Anguilla was Mr Keithley Benjamin, Commissioner of Police.

The 50-odd participants were drawn from throughout the Commonwealth Caribbean, including (in addition to Anguilla and Bermuda), Antigua, Bahamas, Barbados, BVI, Grenada, Jamaica, Montserrat, and St Lucia. Speakers came from the UK, Bermuda, the USA, and Ghana.

There were essentially four separate oversight organizations represented at the conference. These were: Ombudsmen, Police Complaints Authorities, Public Service Integrity Boards, and Human Rights and Administrative Justice Commissions that combined the other three. In addition, a large number of senior police officers who have to do with complaints and discipline were present.

The conference was very well organized and very informative. Participants came away with a clear understanding of the four different sorts of Commonwealth oversight organizations, their functions, and the problems they face.

Public Service Integrity Boards

The only PSIB represented was Anguilla. Antigua and Barbuda, Trinidad and Tobago, and Guyana among others have such Boards or Commissions, but none of them was present. It is generally accepted that none of them have functioned effectively, that of Antigua and Barbuda having only recently been appointed.

PSIBs are divided into those that have wide power to investigate allegations of corruption and conflict of interest and those that have limited powers. In the case of the UK, for example, the equivalent Public Service Integrity Commission investigates complaints from the public made against Ministers of Government, Parliamentarians, Civil Servants, and members of Statutory Corporations. Their findings are widely published in the press, and as a result of public pressure their recommendations are usually implemented. In Anguilla, by contrast, the PSIB is limited by its organizing statute to responding only to matters referred to it by the Governor, and only to complaints against civil servants. Government Ministers, Parliamentarians, and members of Statutory Corporations are exempt. Its reports to the Governor are, presumably, confidential, and the Board has no hope or expectation of enforcement of any of its recommendations.

Police Complaints Authorities

These statutory bodies hear appeals from citizens or police officers who may be dissatisfied with the outcome of what I will call the ordinary or traditional complaints procedure found in the various Police Acts.

Essentially, in the old-fashioned system (which is the one we have in Anguilla) the Commissioner, or a senior police officer appointed by him, holds disciplinary hearings and imposes any appropriate disciplinary measure when there is a complaint by a citizen. There is no civilian appeal body under the Police Act.

Because this system has been found not to be transparent and to lead to public distrust, many Commonwealth countries have introduced new statutory civilian oversight bodies such as Police Complaints Authorities. Bermuda, Jamaica and St Lucia are three Caribbean examples. PCAs usually have the power to review complaints files, take further evidence, and to report to the Police Commissioner with recommendations. Their findings are usually only of moral effect. In those countries with a PCA, the Commissioner retains the primary traditional duty to investigate complaints against officers and to take disciplinary action; an appeal lies to the PCA. The UK has gone a step further. It has recently set up an Independent Police Complaints Commission with statutory power to take over a police complaints investigation without waiting for an appeal. However, even in the UK, the IPCC makes recommendations to the relevant Chief Constable and has no power to enforce its recommendations. In some Commonwealth territories this lack of enforceability has been considered to be an unsatisfactory state of affairs.


The Ombudsman is a statutory creature with power to receive and investigate complaints from persons who allege they have been treated unfairly in the provision of public services and facilities by government agencies, officials and employees. The purpose of the Ombudsman is to protect the individual against abuse of administrative powers or other forms of mal-administration. Such conduct might include bias, neglect, incompetence, inaptitude, turpitude, arbitrariness, corruption, favouritism, bribery, harshness, misleading a member of the public as to his rights, failing to give reasons when under a duty to do so, using powers for the wrong purposes; failing to respond to correspondence, or causing unreasonable delay in doing desired public acts. The Ombudsman usually has power only to recommend corrective action, and cannot enforce his recommendations. Teeth are found only in the publicity given to his recommendations and reports, which are usually required to be published to Parliament, the only body to which he reports. The effectiveness of the Ombudsman is frequently said to depend on the dynamism and drive of the individual filling his shoes.

Administrative Justice Boards

Particularly in African Commonwealth countries there are many different types of national human rights and administrative justice institutions. There are over 30 Ombudsman institutions in that continent alone. Additionally, there are Human Rights Commissions, Gender Commissions, Racial Equality Commissions, and Anti-discrimination Commissions. Many of them operate in challenging environments of corruption, violation of human rights, military coups, and dictatorships. These Administrative Justice Boards are typically given broader jurisdiction and stronger powers than the classic model of Ombudsman. They are called the ‘hybrid model.’

Ghana’s Commission on Human Rights and Administrative Justice is a model of a hybrid institution which performs the triple mandate of acting as the Ombudsman, a Human Rights Commission, and an autonomous anti-corruption agency. Another feature of the hybrid is that some, like the Ghana Commission, have been given power to have their decisions and recommendations enforced in the courts. The Tanzania Commission of Human Rights and Good Governance also has a similar provision empowering it to go to court to enforce its recommendations and decisions where they have not been complied with in a specified period. This is a departure from the classical Ombudsman who relies on his moral powers of persuasion.


Having heard three days of lectures and public discussion on the various models found in our region and throughout the Commonwealth and the common-law world including the USA, and bearing in mind the limited resources of Anguilla, I have come away with the following recommendations to offer:

· There is in this day and age no good reason for exempting any public servant, whether Civil Service, Ministerial, Parliamentary, Prison, Statutory Body, or Police from civilian oversight. Good governance and transparency in public administration demand it. While there may at present be few complaints against or allegations of corruption and conflict of interest among police and public officers, or of misuse of administrative power by government and quasi-governmental agencies and officials, experiences in other countries of our region and elsewhere show that it is only a matter of time before we in Anguilla are hit by a serious scandal in one or more of these areas. (This has happened recently in the BVI and in Montserrat, in both of which senior civil servants in the Ministries of Finance have been convicted of fraud.) The cost of such oversight designed to expose and prevent corruption before it grows rampant is far outweighed by the saving in the liability that will inevitably arise if such a precaution is ignored.

· Anguilla with a population of 12,000 souls is, however, too small to sustain all of these three agencies of oversight as separate bodies.

· Consideration should be given to following the Ghana/Tanzania model of a hybrid Board and in due time to replacing the present limited PSIB with some sort of Public Service Complaints Board. Such a hybrid Board would be empowered to deal with all the oversight matters listed previously, ie, complaints of corruption, conflict of interest and abuse of office and official power affecting the police, prisons, ministers of government, parliamentarians, officers and employees of statutory corporations, and civil servants.

· To be effective, such a hybrid Board should be given:

a. institutional and operational independence;

b. powers of investigating complaints regarding the police, prisons, Ministers of Government, Parliamentarians, and members of statutory boards, and other quasi non-governmental organizations, in addition to the civil service;

c. adequate funding to be able to effectively exercise its oversight responsibilities by, eg, recruiting professional staff who might be senior retired police officers with extensive investigative experience;

d. a requirement to make an annual report to Parliament to ensure the widest publicity of any report of continuing concern in the event any more confidential recommendation to a particular officer or department is not complied with;

e. power to go to court to obtain an order enforcing its decision or recommendation where it considers that a public officer, minister, parliamentarian, or statutory body is wrongfully refusing to implement it.

· The PSIB has only recently been appointed in Anguilla. We may want to give it a year or two before considering providing for such omnibus oversight as I am here recommending. The priority should be to allow the present PSIB a chance to establish itself as an effective body in dealing with its present limited mandate.

· Even such a combined function as recommended above will in the Anguilla context be very much a part-time job. Any future hybrid Board should be recruited (as the present PSIB was) from among experienced, retired persons who will be very much part-timers and will require minimal compensation for the work and responsibility they will undertake.

· Oversight expense might be further reduced and the limited available expertise maximized if the sub-regional Overseas Territories of Anguilla, Montserrat and the British Virgin Islands enacted in due course similar if not identical legislation and appointed the same person or persons to each territory’s Board, so that there is, in effect, a sub-regional oversight body. Some formula such as a Board of three persons with one appointee from each territory and with a non-local acting as Chairman of the Board in each territory might be considered. There is no necessity for all three territories to co-ordinate the commencement of such an initiative. A start could as easily be made in any of Tortola or Montserrat as in Anguilla. The other two could join in when their legislation has been passed.

· Meanwhile, the Governor and Deputy Governor might consider bringing up the matter at future annual Governors conferences and Deputy Governors conferences with a view to encouraging their peers in the sub-region to return home from the conference with a determination to do something about the present state of affairs in the public services of their own territories (eg, in the area of drafting new legislation in this field).

Don Mitchell QC
25 November 2004