361 / 494
360
10.266.
Having regard to the foregoing, we find that the detentions
of the witnesses who testified were illegal as being contrary to the
Regulations and were also unconstitutional.
10.267.
We find that the complaints of residents that they were
made to sit in water or kneel on gravel were truthful. Such conduct on
the part of the security forces was in breach of section 17(1) of the
Constitution and amounted to degrading treatment within the meaning
of that section.
Adverse Comments re: Maj. Marlon Kennedy
10.268.
On 13 April 2016, the Commission referred a draft of para.10.262
(formerly 10.185) to Maj. Marlon Kennedy as a “proposed adverse finding” and
sought his response thereto. He replied on 5 May 2016 through Counsel and his
response is appended to this Report at Appendix AC9.
Re: Para.10.262 (formerly 10.185)- Summary of Response
10.269.
(i)
Maj. Kennedy’s decision to take persons into custody must
be assessed according to principles of proportionality and
the prevailing circumstances.
(ii)
Maj. Kennedy did not act arbitrarily but with reasonable and
probable cause.
(iii)
In the circumstances, he had a duty to secure his sector and
that entailed restraining and controlling all persons found in
the area until their credentials could be established.
(iv)
Lt. Col. Ogilvie testified that he came across several persons
who were not from West Kingston and he observed young
men in the community unknown to them.