Marcel Kelly versus Regina (meaning that Jamaica’s ruling class cowardly hides behind Regina, i.e., another name for the inherited, the colonial legal system they conveniently use to oppress the poor and oppressed no less than was done by our colonial rulers)
Relevant issues: A policeman from the public order and public safety team targets Rastafarian street vendor Ras Marcel Kelly for “exposing goods for sale” [a 19th-century term]. He searches his igloo and finds “green vegetable matter”; arrests him for (1) exposing goods for sale, and (2) having more than 8 ounces of ganja – in other words, “possession and dealing in ganja.” It takes several weeks before the “green vegetable matter” is confirmed by the forensic lab to be ganja.
We argue: suppose the green vegetable matter turns out to be cerasee? Would this not be a false arrest? Does the court not have a duty to comment on the possibility of abuse and to recommend that the political authorities correct this type of arrest?
We take note that appeal court Justice Brooks who heard Ras Marcel’s appeal has in a previous ruling recommended that political authorities take measures to protect property owners from adverse possession by squatters. Not so in this case. Why? Does this signify class bias on the part of the judge?
Ras Marcel Kelly contends during his trial:
(1) That this was a malicious arrest and prosecution from the public order and public safety policeman, who had physically maltreated him on a previous occasion and threatened him with arrest if he comes back and finds him exposing goods for sale. The policeman subsequently returns and charges him for “exposing goods for sale” and possession of ganja. [It is also of interest not considered by the court that on a third occasion the same policeman when he learns that Ras has pleaded not guilty and will be contesting the charge threatens him with his gun].
(2) This public order and safety policeman has possession of the green vegetable matter from beginning to end. (a) He takes it to his police station; (b) to the lab; (c) back to the lab, and (c) to the court for trial.
Discrepancy: The policeman claims to have found the green vegetable matter in one black plastic bag, while the lab says it came in two black plastic bags. Ras Marcel Kelly argues that there is a connection between this discrepancy and the opportunity for corruption of evidence. There is, therefore, a need for this discrepancy to be explained, or taken into consideration, especially in light of the malicious nature of the charge.
The appeal court judges dismiss Ras Marcel’s concerns and agree instead with the trial judge that this opportunity for corruption of evidence, and the discrepancy in the number of bags in which the green vegetable matter is found, is of no significance. The previous perspicacity of Justice Brooks is absent.
(3) Ras Marcel Kelly further argues that the unfounded legal basis of the charge of exposing goods for sale makes the search of his property unreasonable, i.e., “without probable cause.” [The Hawkers and Pedlars Act, the KSAC Act and the Town and Communities Act under which he was charged, all expose the specious nature of the charge of exposing goods for sale. The same applies to vendors throughout the length and breadth of Jamaica.]
Justice Brooks, unlike his expressed concern for property owners who might be legally dispossessed by squatters, expressed no similar concern for vendors in Jamaica who are daily oppressed by police and have their goods illegally taken away.
(4) The trial judge, the appeal court judges and the director of public prosecution were all at one in arguing that because English common law allows for the admission of illegally obtained evidence (which is rejected by American courts), then Ras Marcel’s argument about being searched without probable cause is of no consequence. The requirements for reasonable suspicion and even for a search warrant under the Dangerous Drugs Act were also dismissed. So too is his argument about malicious prosecution and its likely motive for corruption of evidence. This they argue is speculation.
We would argue, however that this appeal court exhibited its corruption. No consideration was given to Ras Marcel’s argument that not only should courts in independent Jamaica “cease using English law as guidance” but should now rely, for example, on Judge David Batts’ substantial ruling about the police needing to have reasonable cause before searching person and property.
It so happens that when Judge Batts made his ruling in 2013, appeal court judge, Nicole Foster-Pusey, now hearing Ras Marcel’s appeal was the solicitor general at the time and in contradistinction to Judge David Batts insistence that the police be made aware of his ruling, wrote to the then commissioner of police advising him that “the recent ruling concerning the powers of the police to stop and search motor vehicles and its occupants is not a binding precedent on the powers of the police.” (The Gleaner, Monday, August 12, 2013). In other words, the need for a reasonable cause to stop and search was of no consequence. Ignore it.
We, therefore, argue that Foster-Pusey was unable to consider the issue before the appeal court had already as a government administrator and lawyer advised the police commissioner to pay no attention to this new development in “Jamaican common law.”
Justice Patrick Brooks who was not only a former prosecutor with a known class bias against squatters failed, not surprisingly, to distinguish himself in regard to unique and potentially precedent-setting legal issues involved in this case.
So, we end as we started: no one should be fooled into believing that Jamaica’s judicial system is independent and above class bias.
In this case of Marcel Kelly v Regina, it proved itself not only to be a faithful arm of a class biased state machinery but to explicitly provide the necessary legal cover for repressive police state tactics against the poor and oppressed.
The lessons of this ruling should not be ignored. La Luta Continua.