GUTTOO C. v THE STATE OF MAURITIUS

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1 GUTTOO C. v THE STATE OF MAURITIUS 2017 SCJ 57 Record No IN THE SUPREME COURT OF MAURITIUS In the matter of:- C. Guttoo Plaintiff v The State of Mauritius Defendant JUDGMENT The plaintiff is claiming damages for the prejudice suffered by him as a result of the faute committed by the préposés of the defendant. He was employed as a Superintendent of Prisons. His contentions are that he had been wrongly interdicted by the Commissioner of Prisons and had been subjected to an illegal or wrongful arrest and detention by the Commissioner of Police. The plaintiff was, from June 2002, the officer in charge of the Phoenix Prison, known as the Bastille. In the course of his career, he had on several occasions been decorated and highly commended for his performance at work. On 16 and 18 October 2007, members of the United Nations Sub-Committee on the Prevention of Torture visited the prison for the purpose of an inquiry in the course of which they interviewed the detainees in private. In view of the serious allegations of torture against the Prisons Officers, the prison was closed at about hrs on 18 October On 24 October 2007, the plaintiff was interdicted from his post by the Commissioner of Prisons on the ground that the police had started investigation into the allegations of severe ill-treatment made by detainees to the U.N. Sub-Committee. The letter of interdiction also mentioned that the police enquiry had so far revealed that plaintiff was directly involved in the inhuman treatment suffered by one detainee.

2 2 It is the plaintiff s case that the allegations of torture and inhuman treatment made against him were false and unfounded. On 19 October 2007 he was arbitrarily transferred to another prison and on 24 October 2007 he was interdicted from work without being given any opportunity to answer the false charges made against him by 2 detainees of the Phoenix Prison. He added that on 19 October 2007 the Commissioner of Prisons issued an office instruction No. 30/2007 in which he made false and unfounded allegations against him. The Commissioner of Prisons had inter alia stated in that circular that the U.N Torture Commission had noted with concern that there had been some torture at Phoenix Prison by the Prisons Security Squad. The Commissioner also stated in the circular that information relating to ill-treatment of detainees had been suppressed and had not been brought to the attention of the Commissioner of Prisons by the Phoenix Prison Administration of which the plaintiff was the officer in charge. As a result, the responsibility for intelligence had been removed from the plaintiff and put directly under the control of an Assistant Commissioner of Police who would report directly to the Commissioner of Prisons. The plaintiff added that on 26 October 2007 he was illegally and arbitrarily arrested and detained by the police and was released on bail on the same day after a provisional charge of Torture by public official had been lodged against him in Court. The provisional charge was struck out on 26 February Plaintiff resumed duty on 28 December 2009 (Doc. E) and was reinstated in his post of Superintendent of Prisons with effect from 24 October He was paid all his outstanding increments and bonuses for the years 2007, 2008 and It is the plaintiff s case that he has been subjected to an unlawful and wrongful interdiction, arrest and detention by the préposés of the defendant which amount to a faute for which the defendant is liable. The defendant has denied in its plea that there has been any wrongful and illegal interdiction, arrest or detention of the plaintiff. According to the defendant, the Commissioner of Prisons did not act merely on the allegations made by the detainees of Phoenix Prison in order to interdict the plaintiff but that: (1) The matter was under police enquiry and the decision of the Director of Public Prosecutions was being awaited; and

3 3 (2) The plaintiff was interdicted on the basis of a police report following investigation into the acts of torture reported by the U.N Sub-Committee on the Prevention of Torture. Defendant also denied that the plaintiff s arrest and detention was illegal and arbitrary inasmuch as plaintiff was lawfully arrested in the course of a police investigation on reasonable suspicion of having committed offences which were arrestable offences. I shall first address the issue of the interdiction of the plaintiff by the Commissioner of Prisons. The Commissioner of Prisons, as responsible officer for the Prisons, is empowered by virtue of Regulation 28 of the Disciplined Forces Service Commission Regulations ( The DFSC Regulations ), made under Section 118(1) of the Constitution, to interdict a prison officer. The relevant part of Regulation 28 provides as follows:- 28(1) Where a responsible officer considering that the public interest requires that a member of a Disciplined Force, should instantly cease to exercise the powers and functions of his office, he may interdict that member at once for the exercise of powers and functions where proceedings for dismissal are being taken or where criminal proceedings are being instituted or where proceedings for retirement on grounds of public interest are being taken against that member Regulation 29 further provides that where a preliminary investigation discloses that an offence against any law may have been committed by the officer, the Commissioner of Prisons must refer the case forthwith to the Commissioner of Police for enquiry and submission to the Director of Public Prosecutions for advice as to whether a prosecution should be instituted. It was first submitted by learned Counsel for the plaintiff that the Commissioner of Prisons acted unlawfully and arbitrarily when he proceeded to interdict the plaintiff without giving him an opportunity to answer the alleged charges of torture which had been levelled against him. In The State of Mauritius v Sookna (2001 MR 7), the Court of Civil Appeal considered the application of Regulation 31 of the Public Service Commission Regulations, which is drafted in terms similar to Regulation 28 of the Disciplined Forces Service Commission Regulations. The question for determination was whether the Comptroller of Customs ought to have confronted the respondent with depositions which had been made

4 4 against him before interdicting him. The Court observed that the responsible officer was not bound to seek the explanations of the officer before interdicting him, so long as he had addressed his mind to the gravamen of the allegations against the officer. The Regulations conferred on the responsible officer a discretion whether or not to interdict. The Court stated that he may do so only if he considers that the public interest requires that the public officer should instantly cease to exercise the powers and functions of his office... The discretion must be exercised by taking relevant considerations into account, and the responsible officer is empowered to act fairly in the exercise of his discretion. The Court also observed that (1) The responsible officer is enjoined to interdict the officer at once if he considers that the public interest requires that the officer should instantly cease to exercise the powers and functions of his office ; and (2) so long as the enquiry was being handled by the police, the Comptroller of Customs could not take any steps regarding the respondent. Witness Lugun, an Assistant Commissioner of Prisons, was called by the defendant to give evidence in relation to the interdiction of the plaintiff. Witness Lugun stated that there were initially 2 detainees, Ali Coowar and Steeve Quirin, who reported to the U.N. sub- Committee that they had been subjected to brutal and inhuman treatment and had been beaten by Prison Officers. He explained that the plaintiff had been interdicted in conformity with the DFSC Regulations, on the basis of the seriousness of the alleged offences of torture which were being investigated by the police. However, as a result of the outcome of the enquiry and the decision of the Director of Public Prosecutions, no further action was taken against the plaintiff who was reinstated in his post. According to witness Lugun, the plaintiff was interdicted on the basis of the allegations made by the detainees which turned out to be false and unfounded. He explained however that the decision to interdict was an interim decision pending the outcome of the police enquiry which ultimately determined whether any disciplinary action would be taken or not. In the present matter the letter of interdiction from the Commissioner of Prisons addressed to the plaintiff had expressly mentioned that the enquiry has so far revealed that you were directly involved in the inhuman treatment suffered by one detainee, and that was the situation at the time that the decision was taken by the Commissioner of Prisons to interdict the plaintiff in conformity with the DFSC Regulations.

5 5 Witness Lugun conceded at one stage that the interdiction, which was based on false and unfounded allegations of the 2 detainees was wrong and unfair. He was indeed quite elusive when, in the course of cross-examination, he declined to give his opinion as to whether the interdiction was warranted stating that the process of interdiction and lawfulness of interdiction is quite technical for me. Independently of the testimony of witness Lugun, however, the sum total of the evidence shows that at the material time of the interdiction by the Commissioner of Prisons:- (1) There had been an independent enquiry carried out by the United Nations Sub- Committee on The Prevention of Torture in the course of which detainees of the Phoenix Prison had indicated that they were being subjected to torture and illtreatment by Prison Officers which included the plaintiff. (2) The situation was so serious that it prompted the immediate closing down of the prison. All detainees and Prison Officers had to be transferred to other prisons. (3) The matter was referred to the Commissioner of Police for enquiry and it was only after the Commissioner of Prisons had received a preliminary report from the Commissioner of Police several days later, on 24 October 2007, that the Commissioner of Prisons took the decision of interdicting the plaintiff. (4) The plaintiff was not only the officer-in-charge of the Phoenix Prison but the Commissioner of Prisons was also in presence of a report which showed that the police enquiry had, at that stage, revealed that plaintiff was directly involved in the inhuman treatment suffered by one detainee. (5) Since the matter was the subject of an ongoing police investigation, the Commissioner of Prisons was bound in accordance with the applicable Regulations to wait for the decision of the Director of Public Prosecutions following the completion of the police enquiry. (6) It was not objectively desirable nor in the public interest that the plaintiff, a highranking Prisons Officer in charge of the Phoenix Prison, should continue to remain in office whilst such an enquiry was being carried out in relation to alleged acts of brutality perpetrated upon detainees in the said prison by Prison Officers which included the plaintiff himself. There were indeed compelling reasons that the plaintiff should, in the public interest, instantly cease to exercise the powers and functions of his office. It clearly emerges therefore that the Commissioner of Prisons acted legitimately within the scope of his powers

6 6 under the DFSC Regulations in order to interdict the plaintiff. He was indeed entitled and justified in the public interest at that particular point in time to interdict the plaintiff in the light of the available evidence relating to an alleged case of torture and inhuman treatment committed by the plaintiff in the exercise of his functions. As was explained by the Court in Sookna (Supra), there was no obligation cast upon the responsible officer at that juncture to seek the explanations of the plaintiff before interdicting him. Once the matter had been referred to the Commissioner of Police, the Commissioner of Prisons was bound by virtue of Regulation 29 of the DFSC Regulations to await the outcome of the police enquiry and the final decision of the Director of Public Prosecutions which would determine whether there would be any criminal proceedings or disciplinary action instituted against the officer. It is abundantly clear therefore that the Commissioner of Prisons acted in the public interest in interdicting the plaintiff in conformity with Regulations 28 and 29 of the DFSC Regulations since at the material time, i.e on 24 October 2007 (1) the Commissioner of Prisons was in presence of a police report, following investigation into acts of torture reported by the United Nations Sub-Committee on the Prevention of Torture, that the police enquiry had at that stage revealed that plaintiff was directly involved in the inhuman treatment suffered by one detainee; and (2) The Commissioner of Prisons, as responsible officer, had to await the outcome of the police enquiry and the advice of the Director of Public Prosecutions before any final decision could be taken with regard to the plaintiff. I shall now turn to the plaintiff s case against the Commissioner of Police. The plaintiff s contention is that his arrest and detention by the police was illegal and arbitrary since it is based on the false allegations of the detainees, upon which the police acted without taking into consideration the explanations of the plaintiff. The Commissioner of Police, on the other hand, has maintained that the plaintiff s arrest and detention was lawful inasmuch as at the material time, there was reasonable suspicion that he had committed an offence of Torture by Public Official. The police was empowered by virtue of section 9 of the Police Act and section 22 of the District and Intermediate Courts (Criminal Jurisdiction) Act to arrest the plaintiff if they had reasonable suspicion that he had committed an arrestable offence. It is not in dispute that an offence of Torture by Public Official in breach of section 78(1)(a) of the Criminal

7 7 Code (The Act) constitutes a crime, within the definition of section 4 of the Act, and would therefore be an arrestable offence. The next question that would arise is whether the police had at the material time reasonable suspicion that the plaintiff had committed such an offence. As was pointed out in Ah Sue v The State of Mauritius [2015 SCJ No. 110], whether the police had at the material time reasonable grounds to suspect that the plaintiff had committed any such offence is a condition precedent for the exercise of the power to arrest and this is a question of fact to be determined by the Court after consideration of all circumstances. In the case of Fox, Campbell and Hartley v. The United Kingdom, 30 August 1990, Series A, No. 182 p. 16, para.32, the European Court of Human Rights noted that the fact of having a reasonable suspicion presupposes the existence of facts or information which would satisfy an objective observer that the person concerned may have committed the offence ; however, what may be regarded as reasonable will depend upon all the circumstances. In Hussein v Chong Fook Kam [1970] AC 942, the Court whilst considering what is needed to establish reasonable suspicion which would justify an arrest by the police, stated the following: Information required to form a reasonable suspicion is of a lower standard than that required to establish a prima facie case. Prima facie proof must be based on admissible evidence whereas reasonable suspicion may take into account matters which are not admissible in evidence or matters which, while admissible, could not form part of a prima facie case. Furthermore, a police officer who has reasonable ground to suspect that an offence has been committed is under no obligation to discount all possible defences or seek complete proof before carrying out an arrest [Ward v Chief Constable of Avon and Somerset Constabulary The Times, 26 June 1986]. The Court in Manraj & Ors v ICAC [2003 SCJ 75] explained, following a review of English case law, what would constitute reasonable suspicion which would justify an arrest by the police :- Reasonable suspicion is no instinct, allows no guess, no sixth sense. It is scientific. It has to find support on facts, not equivocal facts but facts consistent with guilt...

8 8 Reasonable suspicion, in contrast to mere suspicion, must be founded on fact. There must be some concrete basis for the officer s belief, related to the individual person concerned, which can be considered and evaluated by an objective third person. The Court went to summarise the principles which should apply to determine whether there is reasonable suspicion which may justify an arrest: First, the suspicion should be reasonable: King v Gardner (1979) 71 Cr. App. R. 13; Prince [1981] Crim. L. R Second reasonability should be gauged not from the personal point of view of an officer or his subjective standard. It should be appreciated from the objective standard, the point of view of a dispassionate bystander: Inland Revenue Commissioners v Rossminster Ltd [1980] A.C Finally, and importantly, the suspicion should be based on facts: King v Gardner (supra); Prince (supra); Ware v Matthew February 11, 1981, 1978 W. No (Lexis). The facts relied on should be such as are consistent with the implication of the suspect in the crime: Pedro v Diss [1981] 2 All ER 59, D.C.; [1981] Crim. L.R It should not be equivocal with his implication and his non implication. Police officer Mohit related in Court that a police investigation was carried out when a complaint was made by the Human Rights Commission to the Commissioner of Prisons following an enquiry by the United Nations Sub-Committee at the Phoenix prison on 16 and 18 October The complaint was in respect of alleged acts of torture inflicted upon detainees by Prison Officers at Phoenix Prison. The police recorded statements from those who had been complaining of torture immediately after the police had received the complaint from the Commissioner of Prisons. It was after the police had recorded the statements and obtained evidence from the detainees tending to show that there were acts of torture and brutality which had been committed by the plaintiff and other Prison Officers, that the plaintiff was arrested. A statement from detainee Steeve Quirin was recorded on 19 October 2007 and another statement from detainee Coowar was recorded on 26 October 2007 before the plaintiff was arrested on 28 October Both detainees had incriminated the plaintiff. These facts were consistent with the direct implication of the plaintiff as a suspect in the infliction of acts of torture and brutality upon the 2 detainees at the Phoenix Prison. The defendant has thus been able to establish not only the existence of reasonable suspicion from the subjective standpoint of the police but also that there were facts which provided a concrete basis to give rise to reasonable suspicion from the objective standard of a dispassionate bystander. The subsequent completion of the enquiry and the final decision of the Director of Public Prosecutions eventually led to the striking out of the charge against the

9 9 plaintiff following which he was reinstated in his post. But it must be stressed, in that connection, that the reasonable suspicion has to be gauged in the light of the facts as they existed at the material time of the arrest i.e on 26 October The police has therefore been able to discharge the burden of proving that at the material time of the arrest and detention, the police had reasonable suspicion that plaintiff may have committed an arrestable offence which would warrant his arrest and detention. The sequence of events pertaining to both the arrest, and the relatively minimal period of detention as related by the plaintiff himself, further demonstrates the absence of any arbitrariness or wrongful conduct on the part of the police. After having taken cognizance of the complaints and report from the Human Rights Commission and the United Nations Sub-Committee and after having recorded the statements from the detainees, the police called upon the plaintiff for enquiry on 26 October His house was searched and a first statement was recorded from him on 26 October 2007 which was a Saturday. He was arrested but not detained as he was allowed to go home on parole but was asked to come back for completing the recording of his statements on 28 October He accordingly called at the Line Barracks on 28 October Following the recording of his statement, he was brought to Court and was released on bail immediately after he had appeared before the Magistrate following the lodging of the provisional charge. He remained in police custody essentially during the period that he was brought to Court under escort until he was released on bail on the same day. It is abundantly plain, therefore, that in the circumstances the period of his detention for him to be brought to Court and to be released on bail was neither arbitrary nor illegal, but was fully justified. For the given reasons, I find that the plaintiff has been unable to prove on a balance of probabilities that there has been any illegal or wrongful interdiction, arrest or detention by the préposés of the defendant which amount to any faute for which defendant would be liable. The plaint is accordingly dismissed with costs. A. Caunhye

10 10 Judge 17 February 2017 For Plaintiff : M. J. Gujadhur, SA Mr. A. Ramdass, of Counsel For Defendant : Miss S. Angad, Senior State Attorney Mr N. Reddy, Principal State Counsel, together with Mr D. Bissessur, State Counsel

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