IN REPUBLIC OF TRINIDAD AND TOBAGO IN THE...

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IN REPUBLIC OF TRINIDAD AND TOBAGO

IN THE COURT OF APPEAL

Civil Appeal No. 95 of 2010

BETWEEN

THADEUS CLEMENT

Appellant

AND

THE ATTORNEY GENERAL OF TRINIDAD AND TOBAGO

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: 31st July, 2013.

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

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JUDGMENT

Delivered by P. Jamadar, J.A.

Introduction

1. This appeal arises out of an assessment of damages and the consequent orders made by

the trial judge on the 26th

April, 2010. The action was commenced on the 7th

September, 2009.

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 11th

December, 2009. However pursuant to a

written application of the 29th

January, 2010 the defence was struck out. Judgment was entered

in default of defence on the 11th

February, 2010 and the matter proceeded to the assessment of

damages.

3. On the 26th

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;

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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 $92,000.00 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 22nd

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 stated2:

“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 Claimant3 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.

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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

$85,000.00 in general damages inclusive of aggravated damages. Exemplary damages of

$5,000.00 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 $2,000.00 for the breach of his constitutional right. The total award

therefore is $92,000.00 in general damages, special damages in the sum of $8,000.00 that

comprises the sum of $5,000.00 for legal fees and $3,000.00 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 23rd

October 2004 to

the date of judgment. Prescribed costs in the sum of $14,850.00.”

6. 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

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(iv) 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

(v) Ideally if damages for both false imprisonment and malicious prosecution were to be

assessed, separate awards for the different torts should have been made.7

7. 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”.8

9. Clearly there have been some errors of law made by the trial judge. In so far as the trial

judge awarded $2,000.00 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 $5,000.00 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 2008- 04009, 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 23rd

October, 2004 and remained in custody for a period of 6

days. The action was filed on the 7th

September, 2009. 7 See Merson v Cartwright & Anor (Bahamas) [2005] UKPC 38, at para. 15 and Wallace v The Attorney

General CV 2008- 04009, at para. 45.

8 See Calix v The Attorney General of Trinidad and Tobago PCA No. 3 of 2013, at paras. 28 and 29, per Lord

Kerr (23rd

March, 2013); and Ramsaran v Sandy and Rampersad Civ. App. No. 55 of 2003, at para. 14, per

Nelson J.A.

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10. All of these errors justify this court reviewing the assessment made by the trial judge. In

addition, the overall total assessment of $92,000.00 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 $160,000.00. 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 damages9 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 6810. He had “never been in trouble with the police

9 See Mc Gregor on Damages, 17

th Ed., 2003, paras. 38-004 to 38-005.

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before”.10

He had two children, aged 3 years and 17 years, who lived with him and for whom he

was responsible.

14. Very early in the morning on Saturday the 23rd

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 25th

October, 2004 when he was taken before a magistrate. He described

his experience over that weekend as follows13

:

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.

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18. What transpired before the magistrate on Monday 25th

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 25th

October he was granted bail with a

surety in the sum of $40,000.00. What is not in dispute, is that he was taken to the Remand Yard

and remained there until Friday 29th

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 23rd

October to 12:00 pm on Friday 29th

October.16

19. 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 follows17

:

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



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.

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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 29th

October, 2004, it took about

two and one half years (until the 24th

April, 2007) before he was discharged. In all he attended

court on eight occasions as follows: 4th

November, 2004; 22nd

March, 2005; 3rd

August, 2005;

20th

September, 2005; 23rd

February, 2006; 24th

July, 2006; 4th

December, 2006 and 24th

April,

2007. 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 .”18

21. During this period the appellant described his experience as follows19

:

“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 paras. 14, 15 and 16 of the Appellant’s witness statement.

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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

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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 25th

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 2000.

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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).

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(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 2007-01952, a decision of Boodoosingh J, delivered on

the 2nd

July, 2010. Awarded $75,000.00 for malicious prosecution and $50,000.00 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 $125,000.00 was therefore awarded for malicious

prosecution and unlawful detention.

(ii) Barcoo v The Attorney General H.C.A. No. 1382 of 1989, a decision of Mendonca J,

delivered on the 19th

December, 2007. Awarded $75,000.00 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 1st July, 2002. Awarded $110,000.00 for unlawful detention of 7 days. Held in

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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 2009-02336, a decision of Rampersad J, delivered on

14th

April, 2011. Awarded $125,000.00. 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 $160,000.00 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 Quashie24

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.26

23

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 5. 25

[1964] AC 1119 at 1226. 26

Bernard v Quashie, Civ. App. No. 159 of 1992, at page 9.

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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).27

32. 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.29

33. 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 $160,000.00 should be made in this case. The trial judge was of the

27

Bernard v Quashie, Civ. App. No. 159 of 1992, at page 10. 28

See sections 4(a) and 4(c) of the Constitution. 29

See section 5(2)(a), (b) and (c) of the Constitution.

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opinion that an award of $5,000.00 should be granted for exemplary damages (and a further

award of $2,000.00 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.33

30

PCA No 3 of 2012. 31

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 2004 –

2005 and 2005 – 2006 Opening of the Law Term Addresses. In his 2004 – 2005 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

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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 Baptiste35

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 2005 – 2006 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. 51 – 61; Kalashnikov v Russia [2002] ECHR 596,

paras. 92 – 103; Dougoz v Greece [2001] ECHR 213, paras. 42 – 49; and Peers v Greece [2001] ECHR 296, paras.

63 – 75. Note, in these recent decisions of the ECHR intent, motive and malice were not considered preconditions

for finding a violation. 35

[1999] UKPC 13.

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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 Jamaica36

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 Baptiste38

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 35. 37

[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. 110. 40

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).

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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”. 45

41

See paragraph 17 above. 42

Civ. App. No. 146 of 2009; judgment of Smith J.A. delivered on the 5th

February, 2013 (Chief Justice Archie and

Mendonca J.A. agreeing). 43

See paras. 32 – 36, Smith J.A. 44

See paras. 32 and 37, Smith J.A. 45

See para. 44, Smith J.A.

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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 $160,000.00 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

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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 $160,000.00

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

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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 25th

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 5th

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

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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

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