IN THE COURT OF APPEAL THADEUS CLEMENT AND THE ATTORNEY GENERAL OF TRINIDAD AND TOBAGO

Transcription

1 IN REPUBLIC OF TRINIDAD AND TOBAGO IN THE COURT OF APPEAL Civil Appeal No. 95 of 2010 BETWEEN THADEUS CLEMENT AND THE ATTORNEY GENERAL OF TRINIDAD AND TOBAGO Appellant Respondent PANEL: P. Weekes, J.A. P. Jamadar, J.A. N. Bereaux, J.A. APPEARANCES: Mr. G. Ramdeen for the Appellant. Ms. R. Thurab for the Respondent DATE OF DELIVERY: 31 st July, I have read the judgments of P. Jamadar, J.A. and N. Bereaux, J.A. and for the reasons given I agree that the appeal be allowed and the order of the trial judge in relation to general damages be set aside. P. Weekes Justice of Appeal Page 1 of 23

2 Delivered by P. Jamadar, J.A. JUDGMENT Introduction 1. This appeal arises out of an assessment of damages and the consequent orders made by the trial judge on the 26 th April, The action was commenced on the 7 th September, The Appellant s claims against the Respondent (as disclosed on the claim form) were as follows: i. Damages and or exemplary damages for malicious prosecution; ii. A declaration that the claimant was denied and or refused his constitutional rights pursuant to Section 5(2) (c) (ii) of the Trinidad and Tobago Constitution, the right to retain and instruct without delay a legal advisor of his choice and hold communication with him; iii. A declaration that the claimant was deprived of his constitutional rights to communicate with a friend via telephone; iv. Damages including vindicatory damages for the vindication of the claimant s constitutional rights as aforesaid; v. Interest at such rate and for the period as the court may deem just; vi. Costs; vii. Such further and or other reliefs as to the court may deem just. 2. The Respondent filed its defence on the 11 th December, However pursuant to a written application of the 29 th January, 2010 the defence was struck out. Judgment was entered in default of defence on the 11 th February, 2010 and the matter proceeded to the assessment of damages. 3. On the 26 th April, 2010 the trial judge gave his decision. The order of the judge was in the following terms: 1. Damages be awarded to the claimant: (a) The sum of ninety-two thousand dollars ($92,000.00) as general damages; (b) The sum of eight thousand dollars ($8,000.00) as special damages; Page 2 of 23

3 2. Interest at the rate of six percent (6%) per annum on general damages from the date of filing the claim to the date of judgment and at three percent (3%) per annum on special damages from the date of breach (23 October 2004) to the date of judgment; and 3. Prescribed costs in the sum of fourteen thousand eight hundred and fifty dollars ($14,850.00) awarded. It is in this context and in light of this order that the appeal was filed (and no counter appeal brought). 4. As is obvious from the order, a single sum of $92, for general damages was awarded by the trial judge. However no indication was given in the order as to what torts this sum was awarded for. [The orders for special damages, for interest and for costs are not challenged]. 5. In the trial judge s short reasons, received on the 22 nd May, 2013 on the morning of the appeal, he indicated as follows: The claim for damages covers both the tortuous heads of false imprisonment and malicious prosecution and as well damages under the Constitution. 1 In relation to his assessment the trial judge stated 2 : I have examined all the facts in this case as stated in the witness statement of the Claimant which of course at this stage is uncontested and not in dispute. I have examined the cases submitted by the Claimant 3 in particular Ted Alexis v AG HCA 1555 of 2002 and Naidiki in my award for general damages covering the torts of false imprisonment and malicious prosecution. In so far as false imprisonment is concerned it takes into account his deprivation of liberty and unlawful incarceration for 150 hours, for the malicious prosecution for the charge of robbery, the indignity and humiliation caused to him by the charges. This is a case where aggravated damages are applicable to reflect the manner of 1 See paragraphs 3 and 4 of the trial judge s reasons. 2 See paragraphs 5 and 6 of the trial judge s reasons. 3 Subiah v AG PC 39 of 2007, Romauld James v AG CA 154 of 2006, Dale Maharaj v AG HCA 5263 of 1996, Mondesir v AG HCA 1903 of 1997, Stephen Singh v AG HCA 3031 of1994. Page 3 of 23

4 his arrest and his detention at the remand yard, the unpleasant conditions, the number of days his matter dragged on a charge in which the complainant failed to show, his feelings of hopelessness, as well as exemplary damages for the manner of his prosecution and the threats issued to him at the police station. I am mindful that an award of exemplary damages is necessary to record my disapproval and to punish the Defendant for its oppressive and arbitrary action. Adopting the approach of Justice Kangaloo I approach this assessment of damages in the round as in Ted Alexis. I have examined the other facts in the authorities referred to me and I am of the view that based on the consideration outlined above I award the sum of $85, in general damages inclusive of aggravated damages. Exemplary damages of $5, will be awarded. To ensure that there is no double counting or double recovery however to at least reflect the vindicatory element of the constitution right that has been breached an award of $2, for the breach of his constitutional right. The total award therefore is $92, in general damages, special damages in the sum of $8, that comprises the sum of $5, for legal fees and $3, for loss of earnings. Interest at the rate of 6% on general damages from the date of filing the claim to date of judgment and 3% per annum on special damages from the date of the breach on the 23 rd October 2004 to the date of judgment. Prescribed costs in the sum of $14, At the hearing of the appeal several issues were clarified and agreed. These were as follows: (i) This was a private law claim in tort and not a constitutional claim per se. (ii) As such, though exemplary damages may have been awarded no vindicatory damages should have been awarded. 4 (iii) Any award for exemplary damages is separate from an award for general compensatory damages and attracts no interest. 5 4 See Takitota v The Attorney General of the Commonwealth of the Bahamas PCA No. 71 of 2007, per lord Carswell, at para. 15 and Webster v The Attorney general of Trinidad and Tobago [2011] UKPC 22, per Lord Wilson, at para. 16. Note: in claiming damages in tort, including exemplary damages, the Appellant could have benefited from a finding that his constitutional rights had been infringed; but did not need a declaration to that effect. 5 See The Attorney General of Trinidad and Tobago v Ramanoop [2006] UKPC 15] at para. 12, per Lord Nicholls; Merson v Cartwright & Anor (Bahamas) [2005] UKPC 38 at para. 15, per Lord Scott, and Wallace v Page 4 of 23

5 (iv) (v) No award for damages for false imprisonment should be made, as at the date the matter was commenced such a claim was statute barred. 6 Ideally if damages for both false imprisonment and malicious prosecution were to be assessed, separate awards for the different torts should have been made Further, given the fact that no separate award for exemplary damages was reflected in the order, it was also agreed (and properly so) that the Respondent be allowed to argue that the trial judge s award of exemplary damages was wrong and that no award for same should have been made in this matter. Review by the Court of Appeal 8. It is well settled that the court of appeal will only interfere with an award of damages if it can be persuasively demonstrated that the judge doing the assessment erred in law/principle (which includes not only error of law but also giving undue or insufficient weight to the evidence) or made an award that amounted to an entirely erroneous estimate of the damages, that is, an award that was inordinately low or unwarrantably high Clearly there have been some errors of law made by the trial judge. In so far as the trial judge awarded $2, as vindicatory damages he was wrong to do so. In so far as he awarded both exemplary and vindicatory damages he also erred. Further, in so far as he included the award of $5, for exemplary damages in the award for general damages and ordered interest payable on that sum, this too was wrong in law. Finally, in so far as he included in his award for general damages damages for false imprisonment, he was also wrong to do so. The Attorney General CV , at paras. 45 and 70, per des Vignes J. Exemplary damages, being punitive in nature, attract no interest. 6 The limitation period for the tort of false imprisonment is 4 years: Section 3 (1) (a) of the Limitation of Certain Actions Chap. 7:09. The Appellant was arrested on the 23 rd October, 2004 and remained in custody for a period of 6 days. The action was filed on the 7 th September, See Merson v Cartwright & Anor (Bahamas) [2005] UKPC 38, at para. 15 and Wallace v The Attorney General CV , at para See Calix v The Attorney General of Trinidad and Tobago PCA No. 3 of 2013, at paras. 28 and 29, per Lord Kerr (23 rd March, 2013); and Ramsaran v Sandy and Rampersad Civ. App. No. 55 of 2003, at para. 14, per Nelson J.A. Page 5 of 23

6 10. All of these errors justify this court reviewing the assessment made by the trial judge. In addition, the overall total assessment of $92, awarded for general damages is an entirely erroneous and inadequate estimate of the general damages that should have been awarded for malicious prosecution in this case (taking into account an uplift for aggravating factors). Disposition 11. We are of the view that a fair and just award for general damages for the tort of malicious prosecution, including an uplift for aggravated damages, is $160, This figure is based on relevant comparative awards, recent trends in the approach to these kinds of assessments and on the particular circumstances of this case. We are also of the view that no award for exemplary damages should be made in this case. Malicious Prosecution: Heads of Damages 12. Apart from pecuniary loss, the relevant heads of damages 9 for the tort of malicious prosecution are as follows: (i) injury to reputation; to character, standing and fame. (ii) injury to feelings; for indignity, disgrace and humiliation caused and suffered. (iii) deprivation of liberty; by reason of arrest, detention and/or imprisonment. In addition, aggravating factors that can justify an uplift in the form of an award for aggravated damages are to be considered. The Evidence 13. The relevant uncontested evidence is to be found in the witness statements of the Appellant and Kelvin Alves. This may be stated as follows. In October 2004 the Appellant was a taxi driver. He was a registered member of the San Fernando Siparia Erin Road Taxi Drivers Association. He serviced the San Fernando to Siparia route for over twenty years, working from 9:00 am to 7:00 pm Monday to Saturday. This was how he earned his livelihood. He was the owner of his own taxi motor vehicle HBH He had never been in trouble with the police 9 See Mc Gregor on Damages, 17 th Ed., 2003, paras to Page 6 of 23

7 before. 10 was responsible. He had two children, aged 3 years and 17 years, who lived with him and for whom he 14. Very early in the morning on Saturday the 23 rd October, 2004, the Appellant was changing the tyres on his motor vehicle in the vicinity of the Siparia market, when he was approached by four uniformed police officers who accused him of robbing someone. In spite of his denials, he was handcuffed in full view of persons who were present, thrown into a police vehicle and taken to the Siparia Police Station. He described his feelings at this time as being: shocked, confused, humiliated, embarrassed and ashamed. 15. At the Siparia police station he was made to wait for three hours handcuffed and accused. Though he pleaded with the police officers to contact his friends who could verify his whereabouts and so refute the accusation, they refused to do so. In fact he was never informed of his right to retain and instruct without delay a legal advisor of his choice. 16. From the Siparia Police Station he was taken to the San Fernando Police Station. There he was intimidated under threat of violence to sign a document which he did out of fear. 11 He was then charged with robbery contrary to section 24 (1) (a) of the Larceny Act. 12 As is apparent from the penalties that can be imposed upon conviction, this was a most serious charge. 17. Having been charged he was kept in a cell at the San Fernando Station for the entire weekend until Monday 25 th October, 2004 when he was taken before a magistrate. He described his experience over that weekend as follows 13 : 6. During this time I did not eat and barely slept. I was ashamed and frustrated. I felt completely alone. I have never been in trouble with the police before so I was utterly disgraced. 10 See para. 6 of the Appellant s witness statement. 11 See para. 5 of the Appellant s witness statement: At the station the officers threatened to hit me with their guns if I didn t sign a document. I feared for my safety so I signed the document. 12 Section 24 (1) (a) provides: Any person who being armed with any offensive weapon or instrument, or being together with one other person or more, robs, or assaults with intent to rob, any person is liable upon summary conviction to imprisonment for ten years, and upon conviction on indictment to imprisonment for fifteen years. 13 See para. 6 of the Appellant s witness statement. Page 7 of 23

8 18. What transpired before the magistrate on Monday 25 th October is somewhat confusing. In the Appellant s witness statement he asserted that he was denied bail and subsequently sent to the Remand Yard Facility where he stayed for about a week. 14 However the record from the Magistrate s Court Proceedings suggests that on the 25 th October he was granted bail with a surety in the sum of $40, What is not in dispute, is that he was taken to the Remand Yard and remained there until Friday 29 th October, 2004 (when he claimed the order for bail stated above was made). 15 In all he was unlawfully detained for about one week (150 hours) from 12:00 am on Saturday 23 rd October to 12:00 pm on Friday 29 th October During the period at the Remand Yard the Appellant explained that he was extremely worried about his children and felt totally helpless. He described his experience as follows 17 : 8. At the Remand Yard Facility I felt like I was reduced to being an animal. I was made to squat, finger printed and searched. The week I spent at the Remand Yard was the worst week of my life. I would not want even my worst enemy to go through what I did. 9. I was placed in a cell that was approximately 9 feet wide by 9 feet in length with about 12 other prisoners. The cell was extremely filthy and the smell was deplorable. The smell came from a makeshift toilet in one corner of the cell. I felt nauseous to the point where I thought I would throw up. I could not eat and hardly slept. When I slept I did so standing up. I only drank water for the entire week. The whole experience was degrading especially since I had done nothing wrong. I was being punished for a crime I did not commit. I prayed every night that the injustice would cease. But every day that went by made me more and more hopeless. 14 See para. 7 of the Appellant s witness statement. 15 See para. 11 of the Appellant s witness statement. 16 In Calix v Attorney General [2013] UKPC 15, Lord Kerr makes it quite clear that in relation to the tort of malicious prosecution, unlike in the case of false imprisonment, the judicial act of granting bail does not relieve the prosecutor of liability (and) the prosecutor remains liable for the damages caused by his setting the prosecution in motion. See para. 23 of the judgment. 17 See paras. 8, 9, and 10 of the Appellant s witness statement. Page 8 of 23

9 10. I was concerned about what was happening to my children and wondered what would happen to them if I had to stay in jail much longer. Each day felt like a month. I felt violated and that the justice system had failed me. I had worked so hard to make an honest living and it seemed as though it did not matter. I was thrown in jail when I had done nothing wrong. I was being punished for a crime I did not commit. 20. Following the Appellant s release from detention on the 29 th October, 2004, it took about two and one half years (until the 24 th April, 2007) before he was discharged. In all he attended court on eight occasions as follows: 4 th November, 2004; 22 nd March, 2005; 3 rd August, 2005; 20 th September, 2005; 23 rd February, 2006; 24 th July, 2006; 4 th December, 2006 and 24 th April, It is undisputed that: The virtual complainant never turned up on any of the dates The prosecution was never ready to proceed with the case even though my attorney was During this period the appellant described his experience as follows 19 : 14. My livelihood has also been affected because of the blow to my reputation caused by the charges that were brought against me. As a taxi driver I suffered greatly because prospective passengers refused to travel with me. The matter went on for over 2 years before it was dismissed and during this time my reputation was dragged through the mud because people thought that I was a criminal. It even took about 3 months longer than it usually does to get my taxi badge renewed because of the charge against me. I was worried my children s image of me would be tarnished even though I was completely innocent. I was extremely embarrassed and frustrated that the matter went on for so long. 15. I was treated with contempt by members of my community who constantly heckled me in the general public as a result of the prosecution. I was ostracized and alienated from society. I have been a law abiding citizen all my life and I found the experience extremely embarrassing. 18 See para. 12 of the Appellant s witness statement. 19 See paras. 14, 15 and 16 of the Appellant s witness statement. Page 9 of 23

10 16. After being released on bail, I spent 2 years worrying about when the matter would end and my name would be cleared. I felt victimized by the justice system. This matter hung over my head like a dark cloud that would not go away. I kept praying for the best but I truly felt that the justice system had failed me. Reputation 22. The Appellant starts with a good character which has not been impugned. The Appellant suffered real and substantial damage to his reputation and character. Injury to which must have affected his livelihood. The seriousness of the charge/offence, especially in the context of his occupation, is a most material factor in terms of the damage to his reputation. In a small country like Trinidad and Tobago news spreads like wildfire. This is particularly so in relatively small and still close knit areas like Palo Seco (where the Appellant lived) and Siparia (where he was arrested) and along the route that he serviced. The Appellant as a taxi driver of good character with minor children, earned an honest livelihood which depended on the public trust for success. To have been accused of robbing a person, and taking that person s wallet, ID card, driver s permit and money, could only have raised suspicion in the minds of those who may have wanted to travel with him and who would probably have known about this incident. In Trinidad and Tobago people often know who the taxi drivers are and choose to travel with one or other. It is a unique feature of our society. The seriousness of the charge robbery, would have adversely impacted on the Appellant s reputation given his occupation and the nature of the society in which he lived and worked. Indeed, the Appellant testified that following his arrest prospective passengers refused to travel with him. And further, that it took longer than usual to get his taxi badge renewed. Feelings 23. The Appellant suffered real and significant indignity, disgrace and humiliation. From the moment of his arrest by the police, through their refusal to check out his story and verify it, to their threats and intimidation to get him to sign a document and their failure to inform him of his constitutional rights to consult an attorney without delay, the Appellant would and could only have felt like a non-person, of no value or worth. His time at Remand Yard was completely demeaning and his narrative about it is an all too common story that we judges hear. The Page 10 of 23

11 humiliation and indignity to which citizens are subjected in the Remand Yard remain a blot on our civility and humanity and on our democratic ideals. It is deplorable. The two and one-half years spent before the courts, in circumstances where the virtual complainant never appeared and the prosecution was never ready to proceed, would have prolonged the humiliation suffered by the Appellant. This kind of prolonged delay is an unwholesome blot on our criminal justice system. Delay for such periods, in circumstances such as these, begin to approach a form of penalization. The threat of conviction and punishment hanging over a person s head in these circumstances would have caused the Appellant real mental suffering and anxiety; especially in light of the behavior of the police at the time of arrest, detention and charge. Deprivation of Liberty 24. The Appellant endured a loss of liberty for about six (6) days (150 hours) in the circumstances described above. The granting of bail on the 25 th October does not relieve liability in this case. 20 A person s liberty, like their good reputation, is sacrosanct. To be deprived of it in these circumstances must have caused great suffering to the Appellant. His feelings of despair and hopelessness compounded by his anxiety for his two children could only have exaggerated the impact of his loss of liberty and the mental suffering he had to endure. 25. In Millette v Mc Nicholls, 21 Chief Justice de la Bastide highlighted the effects of the initial shock that a person (especially one like the Appellant who had no prior involvement with the police) experiences when first arrested and imprisoned. This initial shock must be compensated and all the more in this case where it was accompanied by the high-handed and illegal conduct of the police in intimidating and threatening the Appellant into signing a document. In this case there was not likely to be very much tapering off on the basis of the adjustment to the circumstances of imprisonment that Chief Justice de la Bastide spoke of in Millette s case. This is so for the following reasons. First, the period for any adjustment was short. Second, the Appellant spent a period in a cell at the San Fernando Police Station (at which 20 See Calix v Attorney General, footnote 16 above. 21 Civ. App. No. 14 of Page 11 of 23

12 there would have been a first initial shock) and was then moved to Remand Yard (at which there would have been a second initial shock). He then spent about four days at the Remand Yard. Third, over this entire period there was a special factor, which was the distress and anxiety which the Appellant suffered in relation to his minor children for whom he was responsible. 26. Chief Justice de la Bastide advises that judges approach the assessment of damages in cases like this in the round and that judges need to be careful not to divide the award into compartments for initial shock length of imprisonment and so on, but rather to ensure that all the factors be taken into account and an appropriate figure arrived at. 22 This is the approach that we have taken. In this case the relevant considerations under this head are the initial shock factor, the length of deprivation of liberty, the conditions of detention and the anxiety about his children. Aggravating Factors 27. There are several aggravating factors in this case which have caused the Appellant mental, emotional and psychological angst. That is, factors arising out of the manner in which the tort has been committed and the conduct and behavior of the tortfeasors, where that behavior aggravated the injury and suffering of the Appellant. Some of the more significant ones are as follows: (i) The humiliating circumstances of the arrest, in handcuffing the Appellant and throwing him into a police vehicle in the presence of onlookers. (ii) The unprofessional and highhanded behavior of the police in failing or refusing to check out the Appellant s explanations on the day of the arrest. (iii) The oppressive and unlawful behavior of the police at the San Fernando Police Station in intimidating and threatening the Appellant and thereby forcing him to sign a document. (iv) The sub-human conditions at the Remand Yard. (v) The anxiety over and plight of the Appellant s two children occasioned by the prosecution. 22 Millette v Mc Nicholls (supra). Page 12 of 23

13 (vi) The period (two and one half years) it took to have this case dismissed, in circumstances where the virtual complainant never appeared and the prosecution was never ready to proceed. All of these warrant an uplift in the award of damages (constituting aggravated damages) for malicious prosecution. Comparable Awards 28. Of the many cases that have been decided and cited to us, we have found the following most helpful: (i) Lewis v The Attorney General CV , a decision of Boodoosingh J, delivered on the 2 nd July, Awarded $75, for malicious prosecution and $50, for unlawful detention (inclusive of an uplift for aggravating factors). The claimant was arrested at 1:30 am, taken to a police station and detained there for 18 hours in deplorable conditions. He was charged with using obscene language. The charge was eventually dismissed. No award for exemplary damages was made. A total of $125, was therefore awarded for malicious prosecution and unlawful detention. (ii) Barcoo v The Attorney General H.C.A. No of 1989, a decision of Mendonca J, delivered on the 19 th December, Awarded $75, for malicious prosecution and unlawful detention for a period of 5 days. In fact the claimant was detained at Police Headquarters for about 24 hours during which time he was repeatedly placed in a cage. After having been taken before the magistrate he was remanded into custody in conditions not dissimilar to those to which the Appellant in this matter was subjected. The proceedings against the claimant took one year before they were determined. (iii) Guerra v The Attorney General H.C.A. No 1717 of 2007, a decision of Dean-Armorer J, delivered on the 1 st July, Awarded $110, for unlawful detention of 7 days. Held in Page 13 of 23

14 cells at police stations which were described as unsanitary and deplorable. Assessment included an uplift for aggravating factors. This was however a constitutional case. 23 (iv) Ramdial v The Attorney General CV , a decision of Rampersad J, delivered on 14 th April, Awarded $125, In custody for 8 days. Circumstances surrounding the arrest, length of incarceration and the 5 years that the prosecution continued were material factors. Assessment 29. In light of these decisions and considering the injury to reputation, feelings and as a consequence of the loss of liberty suffered by this Appellant, together with an additional uplift for aggravating factors, we consider an award of $160, as general damages for malicious prosecution to be appropriate in this case (bearing in mind that the events occurred in 2004 and the assessment by the trial judge was done in 2010). A single figure is awarded for all heads of compensatory damage, including aggravated damages, following the guidance of de la Bastide C.J. in Bernard v Quashie 24 Exemplary Damages 30. Should an additional award be made for exemplary damages given the uplift to the compensatory award for aggravating factors? In Rookes v Barnard, 25 Lord Devlin explained that exemplary damages could be awarded, inter alia, where there is oppressive, arbitrary, or unconstitutional action by the servants of the government. Police officers acting in the course of their employment are for the purposes of an award of exemplary damages the servants of the government See Merrick v Attorney General Civ. App. No. 146 of 2009, at page 19, para. 60, where Smith J.A. in speaking about whether the measure of damages for loss of liberty either by way of a common law claim or for a violation of the Constitution should be equated, stated: Having recognized the distinction between the two types of damages and the fact that the two ought not to be equated, this does not mean that comparisons are useless. 24 Civ. App. No. 159 of 1992, at page [1964] AC 1119 at Bernard v Quashie, Civ. App. No. 159 of 1992, at page 9. Page 14 of 23

15 31. Exemplary damages, unlike aggravated damages which are compensatory in nature, are intended to be punitive, to punish or deter a tortfeasor. Such an award is appropriate where the police behave in an oppressive, arbitrary or unconstitutional manner, and where the court having regard to the award for compensation (inclusive of aggravated damages) is of the view that it is not sufficient to mark the court s disapproval of the actions of the agents of the state (the police) In Trinidad and Tobago a citizen is entitled to several fundamental rights, including the right to liberty and security of the person and the right to individual respect. 28 Further, a person is not to be subjected to arbitrary detention or imprisonment, or subjected to cruel and unusual treatment; and a person detained or arrested is entitled to be informed promptly of his right to consult and retain a legal advisor of his choice In this matter the Appellant was clearly subjected to oppressive, arbitrary and unconstitutional action by the police. Instances of this are as follows: (i) The threats issued to the Appellant resulting in him signing a document at the San Fernando Police Station. (ii) The failure or refusal to promptly advise or inform the Appellant of his right to consult and retain a legal advisor upon detention and arrest. (iii) The failure to attempt to verify the Appellant s explanations which could have exonerated him from suspicion and avoided the prosecution. (iv) The continued prosecution of the Appellant for two and one-half years in circumstances where the virtual complainant never attended court and the prosecution was never ready proceed. 34. The issue is whether in these circumstances an award of damages beyond the compensatory award of $160, should be made in this case. The trial judge was of the 27 Bernard v Quashie, Civ. App. No. 159 of 1992, at page See sections 4(a) and 4(c) of the Constitution. 29 See section 5(2)(a), (b) and (c) of the Constitution. Page 15 of 23

16 opinion that an award of $5, should be granted for exemplary damages (and a further award of $2, for vindicatory damages). Conditions upon Detention 35. For many years the courts of Trinidad and Tobago and both local and international commentators have been expressing their disapproval of prison conditions, including those at the Remand Yard in Trinidad and Tobago. Most recently, in Calix v The Attorney General of Trinidad and Tobago, 30 the Privy Council had reason to track this history and to comment adversely about these conditions, quoting Chief Justice Sharma who described as abhorrent and revolting and sub-human conditions in the remand section of the prison (per Lord Kerr). 31 It would appear that conditions that are experienced as sub-human must at the very least come close to being unconstitutional. 32 Certainly they can be considered oppressive PCA No 3 of See paras. 24, 25, 26 and 27 of the judgment of Lord Kerr. 32 See section 4(c) of the Constitution (right to fundamental respect of the person) and section 5(2) (b) of the Constitution (prohibition against the imposition or authorization of cruel and unusual treatment or punishment). Note: In the local context, cruel as used in section 5(2) (b) has been held to mean inhumane and inflictive of human suffering, per Wooding CJ in Collymore v The Attorney General (1967) 12 WIR 5, at page 20 (i). And, Inhuman treatment has been defined as treatment which is capable of causing if not bodily injury, at least intense physical and mental suffering and acute psychiatric disturbances; and degrading treatment has been defined as treatment such as to cause feelings of fear, anguish and inferiority capable of humiliation and possibly taking away physical or moral resistance; see Ireland v United Kingdom (1978) 2 EHRR 25. In relation to degrading treatment, the humiliation or debasement involved must reach a particular level depending on all the circumstances of the case; see Tyrer v United Kingdom (1978) 2 EHRR 1. [Both of these cases deal with Article 3 of the European Convention on Human Rights which prohibits torture or inhuman and degrading treatment and punishment; and see also Article 4 of the Universal Declaration of Human Rights 1948 which provides: no one shall be subject to torture or to cruel, inhuman or degrading treatment or punishment.] 33 In fact Chief Justice Sharma commented adversely and at length about conditions of detention in both his and Opening of the Law Term Addresses. In his address, the Chief Justice s focus was on Conditions at the Remand Section of the Prisons and in this regard he stated [at pages 33; 35 and 36]: there is yet a considerable distance to be traversed in rising to a minimum standard of decent treatment. An average cell measures approximately eight feet by twelve feet and although originally intended to be occupied by two prisoners, now accommodates on an average seven to nine men. For these persons, the cell is not a bedroom alone it is also a living room, dining room, kitchen and bathroom. The methods used to perform basic human functions at nights, and the means used for cleaning a cell on mornings are abhorrent and revolting. Further reports are that very little fresh air gets into cells. Infestation of the cell by vermin is said to be commonplace. Sanitary facilities are reported to be abysmal. In short, the picture painted is one of decidedly sub-human conditions. the restraint of prisoners on remand must be measured against the State s sole objective in presenting the prisoner for trial and must be judged against a standard of basic humanity towards men innocent in the eyes of the law and not against abstract penological standards. In essence therefore, our prison system and in particular the Remand Section require a radical overhaul consistent with basic norms of decency and civility which recognize that while there is the Page 16 of 23

17 36. Surely the time has come for the state to once and for all accept the responsibility for dealing with and treating detainees and prisoners as persons human beings. The Preamble to the Constitution affirms that the Nation of Trinidad and Tobago is founded upon principles that acknowledge, inter alia, the dignity of the human person and the existence of a Supreme God who is Creator in relation to all humanity. How then can the sub-human treatment of detainees be justified within the principles of constitutionality? The idea that humans are the creation of a supreme Creator and thus entitled to be treated with inherent respect and dignity as persons of value, suggests that the abhorrence with which we decry conditions at the Remand Yard should sound in damages and properly so in exemplary damages. These deplorable and oppressive conditions cannot be allowed to continue indefinitely. 37. Indeed several recent decisions the European Court of Human Rights, in dealing with detention conditions similar to those that exist in Trinidad and Tobago and as established in this case, found a violation of Article 3 of the European Convention of Human Rights. 34 Further, albeit in relation to death row prisoners, the Privy Council has apparently broken new ground in terms of the relevance of prison conditions to the enforcement of the death penalty. In Thomas v Baptiste 35 the Board, by a majority (Lord Steyn dissenting and agreeing with the trial judge Jamadar J., that conditions of detention on death row could lead to the commutation of the death justification for the suspension of some rights, the dignity of the individual must be kept intact by acceptable standards of accommodation and treatment. In his address the Chief Justice, in dealing with the urgent need for prison reform, also stated [page 18]: Whether on remand or serving a sentence, detainees are committed to prison as a consequence of an order of the Court and so the Judiciary has a vested interest in existing prison conditions and must be satisfied that persons incarcerated on remand are accorded treatment consistent with the presumption of innocence and those sentenced to a term of years are not dehumanized in the name of justice. The Judiciary must neither close its eyes nor shut its mouth when the evidence suggests that its orders may be resulting in unintentional and undesirable consequences. [These comments by Chief Justice Sharma demonstrated a marked shift in his position on prison conditions when compared to what his position was in Thomas v Baptiste, Civ. App. No. 177 of 1998 (delivered in August 1998): It will be ludicrous to suggest and farcical to accept that such (conditions and treatment) are capable of constituting cruel and unusual treatment or punishment, when more than half of the law-abiding citizens have by barricading their homes with iron bars, created their own prisons in order to keep the likes of the applicant out (at page 5).] 34 See for example: Gusev v Russia [2008] ECHR 391, paras ; Kalashnikov v Russia [2002] ECHR 596, paras ; Dougoz v Greece [2001] ECHR 213, paras ; and Peers v Greece [2001] ECHR 296, paras Note, in these recent decisions of the ECHR intent, motive and malice were not considered preconditions for finding a violation. 35 [1999] UKPC 13. Page 17 of 23

18 sentence), made it clear that even unlawful and/or abhorrent conditions of detention could not render the death penalty unconstitutional unless there is an aggravating nexus between the resulting treatment and the imposition of the death sentence. The dominant view being that there were more suitable remedies other than commutation to deal with unacceptable prison conditions. However, in Lewis & others v Attorney General of Jamaica 36 the majority of the Board seemed to have been inclined to the view that where there is unconstitutional inhuman and degrading treatment of prisoners on death row, a state can forfeit its right to execute the death sentence. Lord Hoffmann, in a highly critical dissent, observed: The Board now proposes to depart from its recent decisions The majority opinion places no limits on the matters which must be taken into consideration and proceeds on the basis that the minority opinions (on prison conditions) in Higgs and Anor. v Minister of National Security and Others (Bahamas) 37 and Thomas v Baptiste 38 represent the law. 39 Of relevance is the trend of the current approach and developing jurisprudence both in the European Court of Human Rights and the Privy Council in relation to conditions of detention. 38. Clearly one must distinguish between conditions or treatment that are part of the inevitable harshness of legitimate incarceration from those which cause an unacceptable detriment to a detainee. For treatment or conditions of detention to be inhuman or degrading or oppressive, 40 they must cross the thresholds inherent in these notions and this must be proved. In this regard all the circumstances of the case, including the treatment or conditions, the duration of same, and the physical, mental, emotional, psychological and cumulative effect on the particular detainee are all factors to be considered. The fact that the State has taken no meaningful steps to improve objectively unacceptable conditions to which a detainee is subjected, is also a consideration in determining whether state action is oppressive. 36 [2000] UKPC [1999] UKPC 55; minority opinions delivered by Lord Steyn and Lord Cooke. 38 [1999] UKPC 13; minority opinion delivered by Lord Steyn. 39 At para In Thomas v Hilaire, Lord Steyn describes inhuman treatment as treatment or conditions that result in additional unnecessary and avoidable agony and suffering (at para. 71). In Higgs and Anor. v Minister of National Security and Others (Bahamas), Lord Steyn elaborated: The state is not permitted to inflict inhuman treatment beyond the suffering necessarily involved in their imprisonment (The Constitution) forbids the infliction of additional unnecessary suffering. Inhuman treatment may take the form of the causing of physical or mental suffering or both (at para. 54). Page 18 of 23

19 39. In this case the unchallenged evidence established that the Appellant was detained in cramped, unsanitary, overcrowded and smelly conditions for several days, which included a lack of any provision for sleeping or for privacy in relation to personal hygiene and ablutions. 41 The Appellant experienced all of this as degrading and humiliating and this treatment in these conditions caused him great angst. In our opinion the conditions of detention to which the Appellant was subjected could objectively have caused him mental suffering, anguish and humiliation beyond what ought to be expected as a detainee on remand. This treatment and these conditions amounted to degrading and inhuman treatment which was also oppressive and over the threshold of degradation which is acceptable as part of the expected consequences of incarceration in the remand section of the prison in Trinidad. The conditions of the Appellant s detention were incompatible with due respect for his human dignity as a detainee and his treatment subjected him to hardship and distress exceeding the unavoidable humiliation, distress and suffering that is to be expected in legitimate detention on remand. 40. Yet in spite of all of these considerations we are of the opinion that at this point in time and in the circumstances of this particular case an award of exemplary damages should not be made. We note that in Calix s case the comments of Lord Kerr were made in the context of a claim for aggravated damages. Further, that in the very recent decision of Merrick v The Attorney General 42 the Court of Appeal unanimously declined to make an award for exemplary damages where prison conditions were unsanitary, crowded and caused the Appellant considerable distress 43 and were not dissimilar to those in this case. In Merrick s case the Court of Appeal was of the opinion that though the conditions of the appellant s imprisonment justified an award of aggravated damages, 44 they did not merit an award of exemplary damages The compensatory award (being) adequate in the circumstances See paragraph 17 above. 42 Civ. App. No. 146 of 2009; judgment of Smith J.A. delivered on the 5 th February, 2013 (Chief Justice Archie and Mendonca J.A. agreeing). 43 See paras , Smith J.A. 44 See paras. 32 and 37, Smith J.A. 45 See para. 44, Smith J.A. Page 19 of 23

20 41. So also in this case we have agreed that the award for compensation is sufficient and no separate award for exemplary damages is necessary. We note the obvious overlap in aggravating factors that resulted in an uplift in the award for compensation and those that could justify an award of exemplary damages. Even though the trend internationally is to move away from requiring intentional or malicious action to justify awards of exemplary damages, as demonstrated in the ECHR jurisprudence cited above, we are nevertheless prepared at this point in time to desist from making any award for exemplary damages in this case. This is not to say that in another case such an award may not be made where similar conditions of detention exist and where there is no evidence of intentional or malicious action by the prison authorities and where other relevant considerations justify making such an award. It may also be that in time, if the state does not act to ensure that conditions of detention are not oppressive and are not over the threshold of degradation that is acceptable for detention at the Remand Yard, that awards for exemplary damages will be made over and beyond compensatory damages that include an uplift for aggravating factors. It is our hope that the observations made in this case will prompt the state to initiate immediate reform so as to avoid the continuation of this most unacceptable and oppressive, if not unconstitutional, state of affairs that exists in relation to detention at the Remand Yard. Conclusion 42. This appeal is allowed. The order of the trial judge in relation to general damages is set aside and in its place the following order is made: General (compensatory) damages for malicious prosecution are awarded to the Appellant in the sum of $160, with interest payable at the rate of six (6) percent per annum as ordered by the trial judge. The parties will be heard on the question of costs. P. Jamadar Justice of Appeal Page 20 of 23

21 Delivered by Bereaux, J.A. 43. I agree with Jamadar J.A. that the appeal should be allowed for the reasons he gives. I also agree that the judge s award of damages should be set aside and an award of $160, general damages. I just wish to add a few words of my own on this question of prison conditions and the award of exemplary damages in respect of them. 44. I can see no basis for an award in this case. The appellant spent approximately six days in wrongful detention. Four of those were spent at the Remand Yard Facility pending the posting of bail. It is his stay on remand which is the basis of bitter complaint. The prison conditions he described were not challenged by the respondent. 45. Prison conditions including those on remand have been the subject of much judicial comment over the years and remain a source of serious concern. But I am satisfied that the appellant s detention at Remand Yard is adequately and appropriately addressed by an award of aggravated damages. 46. As to the appellant having been subjected to oppressive, arbitrary and unconstitutional conduct as itemized by Jamadar JA at paragraph 33 of his judgment, I say as follows: (i) I consider the allegation that threats were issued to the appellant which led him to sign a document, to be lacking in credibility. No particulars of the contents of the documents were led nor was the document ever produced against him in evidence (ii) the failure to advise the appellant of his right to consult and retain a legal adviser (if it did occur) resulted in no detriment to the appellant whatever. In Zaid Mohammed v. The AG, Civil Appeal # 164 of 2006 (Bereaux, Stollmeyer, Smith, JJA), I noted that not every breach of the right to counsel will result in relief being granted to an accused. The right to counsel is primarily set out to protect the accused from self incrimination and to protect his right to a fair trial. The failure to inform him of that right in this case has not been demonstrated to have affected him adversely in any way. The appellant has not Page 21 of 23

22 alleged that the failure to do so somehow prolonged his detention or that he gave a statement which incriminated him in respect of the charge. Bail was granted on 25 th October when he was taken to court. It appears that the appellant had difficulty in acceding to bail. This was more likely a question of means rather than any difficulty with the legal system. The dictum of Lord Steyn in Allie Mohammed v. The State (1998) 53 WLR 444 (cited in Zaid Mohammed) is relevant: It is a matter of fundamental importance that a right has been considered important enough by the people of Trinidad and Tobago, through their representatives, to be enshrined in their Constitution. The stamp of constitutionality on a citizen s rights is not meaningless: it is clear testimony that an added value is attached to the protection of the right. On the other hand, it is important to bear in mind the nature of a particular constitutional guarantee and the nature of a particular breach. For example, a breach of a defendant s constitutional right to a fair trial must inevitably result in the conviction being quashed. By contrast, the constitutional provision requiring a suspect to be informed of his right to consult a lawyer, although of great importance, is a somewhat lesser right and potential breaches can vary greatly in gravity. In such a case, not every breach will result in a confession being excluded. (iii) In my judgment, the other items set out at (iii) and (iv) of paragraph 33 are sufficiently addressed by an award of aggravated damages. 47. As to the question of prison conditions, the Court of Appeal on 5 th February 2013, in Merrick v The Attorney General and Commissioner of Prisons (Archie CJ, Mendonça and Smith JJA) rejected any claim for exemplary damages in respect of prison conditions. Nothing has changed since then to require a review of that decision. Lord Kerr s subsequent comments as to prison conditions in Trinidad and Tobago in Calix v. The Attorney General of Trinidad Page 22 of 23

23 and Tobago, Privy Council Appeal No. 3 of 2012, were made in reference to the issue of aggravated damages only. 48. Neither am I satisfied that this is a matter entirely for judges. Our concern must be, particularly, to ameliorate the conditions under which persons interned for protracted periods, live. Any attempt to address these conditions must also address to core problem of overcrowding and its cause. Sociological factors contribute. They go to the root of the cause. Corrective measures must embrace them and may even require a wholesale rethink of the issue of punishment. Some may say that the simple answer is the construction of more prisons. Too simple an answer others might say. 49. Why then should the Trinidad and Tobago taxpayer (so appropriately described as long suffering by Lord Brown at paragraph 63 in Francis Paponette & Ors. v. The AG, Privy Council Appeal No. 9 of 2010) again be required to bear the financial burden of what may at best be a band aid application to a gaping sore. Moreover, what of those prisoners who are legally imprisoned and whose terms of imprisonment, unlike the appellant s are significantly longer. Their circumstances are more permanent and far more dire. Why should they be any less entitled to damages, or, should they be entitled to a remission of sentence. It is a matter which requires not so much the attention of judges but concerted attention at the executive and administrative levels of government. 50. These questions (and answers) simply demonstrate that considerable thought and discussion are yet needed in order to address this entire exemplary damages/prison conditions debate. I do not consider that we have been sufficiently assisted in this case to even begin to answer them. In any event the facts of this case do not require any such award. Nolan P.G. Bereaux Justice of Appeal Page 23 of 23