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THE REPUBLIC OF TRINIDAD AND TOBAGO

IN THE HIGH COURT OF JUSTICE

CV 2012-00129

BETWEEN

ANISHA MASON

Claimant

AND

INDAR JAGROO

Defendant

BEFORE THE HONOURABLE MR. JUSTICE PETER A. RAJKUMAR

APPEARANCES

Mr. Ancil Moses for the claimant

Mr. Seenath Jairam and Mr. Rajiv Persad instructed by Ms. Stephenie Sobrian for the defendant

Judgment

Background

1. The claimant’s claim against the defendant is for damages for false imprisonment

commencing February 11th 2011 and concluding in May 2011, when the claimant was

repeatedly remanded to the Golden Grove Women’s Prison.

2. The circumstances under which that occurred are as follows: In December 2010 one Mr.

Rodriguez, a family friend, with the best of intentions and based upon advice, either from an

attorney at law or the Clerk of the Peace, sought to be appointed a fit and proper person to have

custody of the Claimant. The application was purportedly brought under s. 45 of the Children

Act, and the “complaint” form, by which the proceedings were initiated, had the claimant’s date

of birth thereon – September 30th

1993.

3. The claimant at the time was therefore 17 years old. She was in Form Four.

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4. She had had a very unstable upbringing following the death of her mother, the

abandonment by her father, and then subsequent inability of her grandmother to continue to care

for her.

5. She had been in various children’s homes. At one of those homes - the Kistow Home, she

ended up leaving as a result of an incident. She then stayed for a short while at the home of her

sister.

6. At some stage in the course of transitioning from one residential environment to another

she was placed in prison for a period of one week. She claims that on that occasion, just like the

instant occasion before the court, she had committed no offence and was simply placed there

pending the sourcing of alternative accommodation for her.

7. Mr. Rodriguez approached the Magistrates’ Court out of concern to avoid the claimant’s

having to go back to prison. His belief was that, by his being appointed the claimant’s guardian,

she would be protected from a repetition of that incarceration.

8. The result is that on an application by Mr. Rodriguez to be appointed guardian of the

claimant the magistrate, persuaded by an emotional outburst by Mrs. Rodriguez that the

claimant’s presence in her household was placing strain on her marriage, remanded the claimant

into custody to the Golden Grove Women’s Prison, and continued thereafter to do so on every

occasion that the matter came before him. The defendant persuaded himself that there was no

alternative to his remanding the claimant into custody.

9. He, like Mr. Rodriguez, claims to have been well intentioned in that:-

a. he felt that he had no alternative but to place the Claimant in a “place of safety”,

b. despite personal strenuous efforts on his part, no alternative “place of safety” could be

identified which was able or willing to accommodate the Claimant,

c. that he eliminated

i. the Rodriguez household (based on representations of Mrs. Rodriguez), and

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ii. the Claimant’s sister, (based on enquiry and her response that she was not willing to again

accommodate the claimant),

d. the claimant’s grandmother, as he was unable to identify an address for her, and

e. the claimant’s father, as he was unable to identify his address,

f. Sofia house, as he was unwilling to consider that as an option,

g. other institutions that he checked, which were allegedly unable to accommodate her.

10. The only alternative place of safety was therefore the Women’s Prison. He did not

consider the alternative of simply allowing the Claimant to leave his court as he claimed that he

feared for her safety if he did so. This was not in his witness statement.

The claim that he was exercising a judicial discretion based on the absence in the Children

Act of a prohibition against committing a minor to prison

11. It is obvious that while Mr. Rodriguez may have been well intentioned, and, giving the

magistrate the benefit of the doubt, he also may have been well intentioned, a travesty of justice

has occurred.

12. No jurisdiction has been shown to exist for committing a 17 year old minor to prison in

the instant circumstances, especially where such minor has not been charged or even accused of

a criminal offence. Where no jurisdiction exists no judicial discretion can arise.

13. The excuse of necessity cannot constitute a defence in the instant situation where:-

a. the necessity for incarceration of the claimant has not been justified on the facts,

b. the alternative to incarceration was permitting the 17 year old claimant to enjoy her

constitutionally recognised and protected right to liberty.

14. The logical consequence of the reasoning that if was no available space in a suitable

children’s home, or certified orphanage, the claimant had to be accommodated in prison, (and

with the other alternatives having all been eliminated from consideration by the defendant), was

the continued placement of the claimant on continuing remand until September 30th

2011 when

she would have turned 18.

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15. In that event the claimant would have served over 7 months in prison without having

been charged or convicted of any offence.

16. As it stands, she was incarcerated from February 11th

2011 to May 27th

2011 without

having been charged with or without having committed any offence, and the situation was only

brought to an end by the intervention of the High Court. The transcripts provided, (and clearly

some are missing), reveal that the Claimant was remanded into custody on the following days:-

February 11th

- to February 21st,

February 21st - to February 28

th,

February 28th – to March 14th

(missing)

March 31st – 10 days, to April 11th

April 11th - 28 days to May 9th,

May 9th

to May 23rd

(missing)

17. Magistrates derive their jurisdiction from statute. Without express statutory jurisdiction

justifying the claimant’s incarceration, that incarceration would be unlawful. There is no

statutory justification demonstrated in the circumstances of this case. It is clear that a grave

miscarriage of justice occurred in the defendant’s court on numerous occasions between

February 11th

2011 and May 2011, which was only ended by application to and intervention by

the High Court by order of Habeas Corpus on May 27th

2011.

18. In those circumstances damages fall to be assessed.

Issues

19. The issues identified by the defendant which purportedly arise in this case are as follows:

i. Whether the Claimant’s action against the Defendant is premature having regard to the

fact that the order of the Defendant Magistrate has not been quashed and/or whether the

action is barred by s 6 of the Magistrates Protection Act Chap 6:03.

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ii. Whether the Defendant is otherwise immune from suit?

iii. Assuming that an action can be brought at this stage, what is the basis for the Claimant’s

claim against the Defendant Magistrate?

iv. Whether in the circumstances of this case the Claimant needs to establish that Defendant

Magistrate knew or ought to have known he was acting without jurisdiction.

v. Did the Defendant Magistrate have jurisdiction under the Children Act Chap 46:01 to

have committed Ms. Mason to the Women’s Prison, and if so, in what circumstances?

Further, or alternatively, is there anything in the Children Act specifically prohibiting

the Defendant Magistrate from committing the Claimant to the Women’s Prison, and

would this make any difference?

vi. Is the defence of necessity available to the Defendant Magistrate in the circumstances of

this case?

Conclusion

20. It was submitted: -

(i) That sections 5(2) and 6 of the Magistrates’ Protection Act provide a complete bar to

this claim.

It is clear that they do not.

(ii) That further and/or alternatively, the Court should hold, following the New Zealand

Court of Appeal approach, that the defendant Magistrate is immune from suit.

In so far as that approach would lift immunity in the case of gross negligence, the latter

has been demonstrated on the facts, and immunity would not here apply, even if the

Magistrates Protection Act did not already cover the issue.

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(iii) That if the Court finds that the Magistrate’s order of committal on the facts available to

him was issued in the bona fide, though erroneous, belief that the matter was within his

jurisdiction, then he (the Defendant) is not liable.

While I find that no malice has been demonstrated, the contention that the defendant’s

own subjective personal belief must be considered in ascertaining whether he has

jurisdiction, is not accepted.

If the argument is that that belief protects him from suit for those actions, even if those

were without jurisdiction, there is no sufficient authority for such a proposition in this

case.

(iv) That the Defendant was entitled to commit the Claimant to the Women’s Prison for safe

keeping by virtue of sections 44(4) and 44 (5) of the Children Act and was therefore

within jurisdiction, and that if anything, he was exercising a discretion to deem the

Women’s Prison a fit person in the circumstances.

This is rejected. He had no such jurisdiction over the Claimant. He had no judicial

discretion or jurisdiction to deem the Women’s Prison a fit person – when there was no

basis for deeming it fit, and when it could not rationally even be considered to be “a

person.”

(v) That the defence of necessity arises and the conduct of the Defendant Magistrate was

necessary and proportionate and in the best interests of the Claimant.

This has not been established on the facts of this case.

It stretches credibility to contend that the defendant could have been acting in the

claimant’s best interests by making repeated orders placing the claimant in prison

without considering, at the very least,

a. the stigma that would attach to her,

b. the impact this might have on prospective employers ,as well as,

c. the fact that the claimant was attending school, (whether she absented herself

occasionally is not relevant at this stage),

d. the fact that the claimant would have had examinations to write.

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21. The defendant alleges that he was acting in the best interests of the claimant. In fact that

conduct was thoughtless, highhanded and an indefensible abuse of authority. It was not a single

mistake which resulted in a onetime committal to prison, inexcusable as that would have been. It

did not cause the defendant to ponder whether the correct decision had been made, to review the

statutory jurisdiction that he purported to exercise, or to recognise that it was an error before it

was repeated. It was instead a course of action repeated on multiple occasions, which simply

should not have occurred even once.

Disposition

22. The Claimant is entitled to damages for false imprisonment, to be assessed by this court

on the evidence already led at trial.

23. The defendant is to pay to the claimant the costs of the trial and the assessment, on the

basis prescribed by the Civil Proceedings Rules for a claim in the amount of damages as

eventually assessed.

Analysis and reasoning

Law

24. Section 5 of the Magistrates Protection Act Chap 6:03 is as follows:-

“5. (1) Any person injured by any act by a Magistrate in a matter not within his

jurisdiction, or in excess of his jurisdiction, or by any act done in any such matter under

any conviction or order made or warrant issued by him, may maintain an action

against the Magistrate without alleging that the act complained, of was done

maliciously and without any reasonable and probable cause.

25. Clearly section 5(1) does not assist the defendant. It is clear that the case for the

Claimant is based on an assertion that the matter which came up before the Defendant Magistrate

was not within the jurisdiction of the Magistrate.

26. It is undisputed that the Defendant Magistrate acted bona fide and/or without malice. In

any event it is not necessary for the claimant to prove, or even allege, otherwise.

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I accept that he was motivated by good intentions. However the execution of those good

intentions resulted in not one, but several orders being made for the placement of the claimant in

Prison.

Whether the Claimant’s action against the Defendant Magistrate, is premature having

regard to the fact that the order of the Defendant Magistrate has not been quashed.

(2) No such action shall be brought for anything done under the conviction or order,

or for anything done under any warrant issued by the Magistrate to procure the

appearance of such party and followed by a conviction or order in the same matter, until

after the conviction or order has been quashed by the High Court. [emphasis added.]

27. It was submitted that for the Claimant to have initiated an action against the order that is

being challenged the order must have been quashed by the High Court.

28. At paragraph 7 of the Claimant’s amended statement of case, the Claimant pleaded as

follows:

“7. On the 21st February 2011, when the matter again came up for hearing before the

Defendant, he unlawfully committed the Claimant, then age seventeen (17), whereby the

matter was not within the Jurisdiction of the Defendant Magistrate, and who had not

been charged with or convicted of an offence, to the Arouca Women’s Prison, and

adjourned the matter to a later date.”

29. In fact the transcript shows that the committals to Prison began on the 11th

of February

2011. It is clear that the orders for committal were quashed by the High Court when on May 27th

2011 an order of Habeas Corpus was granted. The effect of the order was to release the applicant

from prison, and to nullify and negate the prior order of the Defendant in placing her there.

30. In the alternative, if, which is not accepted, the order for committal was not quashed,

presumably on the argument that the substantive proceedings still continued before the

magistrate, then this court has no hesitation in so quashing those proceedings on the bases that -

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a. the magistrate was purporting to hear a custody application – (though when asked he himself

appeared unsure of what was the application before him). The complaint before him stated

clearly what the application was. Whatever the application that was before him, he had no

jurisdiction to commit the applicant to prison. (The Probation Officer’s report, which may have

introduced some element of confusion, was obviously commissioned before the complaint/

custody application had been filed).

b. Further, in so far as he purported to be acting under the Children Act, his jurisdiction

thereunder did not extend to a 17 year old, as the claimant then was, and as he had been told on

the first day of hearing. (See transcript of that day. In addition her date of birth was clearly on the

Probation Officer’s report and the complaint).

c. it cannot seriously be contended that the proceedings before the Magistrate remain extant in

any form.

31. There is no dispute that the Defendant Magistrate did make multiple orders committing

the Claimant to the Women’s Prison. Nor is it in dispute that the Claimant did file habeas corpus

proceedings, which had the effect of negating any and all orders of the defendant committing the

claimant to prison.

32. The defendant’s error of law in so doing is apparent on the face of the record of the

proceedings, and on the undisputed facts. Any artificial, or technical, interpretation of what

“quashing” involves ignores the extent of the jurisdiction of the High Court. The High Court

cannot claim to evade its responsibility to set right what were clearly not one, but multiple errors

by the defendant, every single one of which was without jurisdiction.

33. To refrain from quashing that purported exercise of jurisdiction, the erroneous orders

emanating therefrom, and the injustice occasioned thereby, would be to merely compound the

errors of the defendant. The record of these cannot possibly be allowed to stand undisturbed.

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34. In the extremely unlikely event that any argument that the order of Habeas Corpus failed

to have this effect may be considered to have merit, each and every committal, and their separate

orders to that effect, and the entire proceedings which produced this travesty are all quashed

without hesitation.

Whether the Defendant is immune from suit

35. Sections 6 and 12 of the Magistrates Protection Act provide that:-

“6 No action shall in any case be brought against any Magistrate for anything done

under any warrant which has not been followed by a conviction or order, or if, being

a warrant upon an information for an alleged indictable offence, a summons was issued

previously thereto, and served upon such person personally, or by its being left for him

with some person at his usual or last known place of abode, and he has not appeared in

obedience thereto.”

36. It was contended that s. 6 of the Magistrates Protection Act stipulates that no action shall

in any case be brought against any Magistrate for anything done under any warrant which has not

been followed by a conviction or order, that the Warrant of Commitment of a Defendant is such

a warrant within the meaning of s. 6, and that it has not been followed by a conviction or order.

37. This provision was considered by the Honourable Bereaux JA in Civ. App. No. 45 of

2007 Crevelle v The Attorney General. In that case the appellant was detained consequent

upon his arrest by warrant issued by the magistrate. The charge, for which the warrant was

issued to secure his attendance, was never heard. As the warrant of the magistrate was held not

to have been followed by an order or conviction, it was held that the magistrate in that case was

protected by section 6 of the Act.

38. In the instant case the committal to prison was not based on a conviction. But it was in

each case based on an order. In fact the several committals were based on several orders. And

the action brought is based on those orders, (which are alleged to have been outside his

jurisdiction), rather than upon any consequential warrants. The Crevelle case is therefore

distinguishable. The detention of the appellant in the Crevelle case was pursuant to a warrant

which had been issued by the magistrate to secure his attendance before the court, (on a charge

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which, though outside his jurisdiction, was never heard). The magistrate there made no order for

the detention of the appellant. The detention in that case was therefore not pursuant to an order

of the magistrate. It was incidental to the warrant issued by the magistrate.

39. In the instant case the claimant’s detention in each case was not merely incidental, but

rather it was the direct result of express orders made by the magistrate to effect this result.

Clearly therefore s. 6 cannot exonerate the defendant here, where, unlike in the Crevelle case,

the defendant made express orders that the Claimant be remanded to Prison.

40. If however it is seriously contended that it does, on the basis that the warrant of

commitment was not “followed” by an order, then this would bring the defendant even more

squarely within s. 5 (1) of the Act, as he would have acted without jurisdiction in not basing each

committal upon an order. But the argument is flawed in so far as it assumes that the claimant’s

claim is based on a warrant. It is based on orders, which were all without jurisdiction.

41. Although the argument is difficult to follow, (and it may well be that the defendant did

not intend to be so interpreted), it cannot seriously be contended that the failure to follow the

committal with an order somehow exonerates him under s. 6. If he failed to follow the warrant

with an order of committal this would actually make his actions in committing the claimant to

prison less justifiable, rather than more justifiable. The fact is that

i. An order was made in each case,

ii. There is no evidence that any warrants of commitment followed the orders committing the

claimant to prison, rather than the other way around, and

iii. The claim is based on the orders made, rather than any warrants issued in consequence

thereof.

What is the basis for the claim against the Magistrate

42. The Claimant’s Amended Statement of Claim sets out clearly that the allegation is that

the Magistrate acted outside of his jurisdiction when he committed the Claimant, who was 17 at

the time and who had not been charged or convicted of any offence, to the Women’s Prison.

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43. It is clear from the pleadings that the Defendant Magistrate did not have jurisdiction to

entertain the application in relation to the Claimant because the application before the Defendant

as Magistrate was made under section 45 of the Children’s Act Chap 46:01. This only applies to

children “apparently” of the age of 14 or 15 years and could not apply to the Claimant who was

17 years old on the relevant dates of hearing before the Magistrate’s Court.

44. Section 45 of the Children Act Chap 46:01 provides:-

“Any person may bring before a Magistrate any person apparently of the age of

fourteen or fifteen years so circumstanced that if he were a child he would come within

one or other of the descriptions mentioned in section 44(1), and the Magistrate, if

satisfied on enquiry of that fact and that it is expedient so to deal with him, may, in

accordance with the provisions of Part I, make an order for his committal to the care of a

relative or other fit person named by the Magistrate, and the provisions of that Part

shall, so far as applicable, apply as if the order were an order under that Part.” [ Emphasis

added.]

45. In this case the application before the Magistrate was the application, (on complaint

form), by Simon Rodriguez dated 6th

December 2010. This application was initiated by Mr.

Rodriguez, purportedly pursuant to section 45 of the Children Act.

46. The Defendant Magistrate had jurisdiction to deal with an application made under s 45

of the Children Act Chap 46:01 for a person apparently of the age of fourteen or fifteen

years in the same manner as a child within the descriptions of s. 44 (1).

47. He could in that case, assuming that the applicant was apparently of the age of fourteen

or fifteen years, make an order for her committal to the care of a relative or other fit person

named by the Magistrate. However the basis on which he appeared to consider or deem the

Golden Grove Women’s Prison a relative or a fit person is unclear.

48. Further the assertion that the defendant did not know that the applicant was neither 14 nor

15, but rather 17 years old, and was totally unaware of the Claimant’s age (until sometime later

on), is not borne out by the evidence.

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49. The defendant produced the transcript of most, though not all, of the notes of evidence of

the proceedings on each day. On the first day that the matter came up in court before another

magistrate that magistrate, who heard the matter before the defendant came into the picture, was

clearly aware of the claimant’s age.

50. On the first day that it came up before the defendant someone is recorded as telling him

that some institution would not take someone over 16. The complaint itself records the

claimant’s date of birth. The Probation Officer’s report, which the defendant swears was before

him on February 11th

, (the first date that he remanded her to Prison), also clearly sets out her date

of birth and her age.

51. Further the defendant in answer to the court indicated that one possibility was the

continued remanding of the applicant to the custody of the Prison until she turned 18. Clearly at

some stage therefore he knew that she was 17.

52. Despite knowing her age, (as he clearly did by the 8th

of April when he asked her), it

made no difference to the defendant’s handling of the applicant’s case. He clearly did not

consider this to be a factor which deprived him of jurisdiction, and in fact he persisted in acting

as though he had jurisdiction allegedly under s. 45 of the Children Act. The argument that the

applicant may have been apparently 14 or 15, so as to justify the defendant’s exercise of

jurisdiction must fail as:

a. he knew at some point that she was 17 and it made no difference;

b. even an exercise of s. 45 jurisdiction on the basis that the claimant was apparently 14 or

15 did not permit him to remand the applicant into custody.

53. The Defendant’s assertion under cross examination that he considered the Prison to be a

place of safety for the Claimant is simply bizarre, even if it were a reference to that term as

defined in the Children Act, (though this was not contended on his behalf). (Under that Act

“Place of safety” means any place appointed by the Minister to be a place of safety for the

purpose of the Act, or any hospital or other suitable, secure place the occupier of which is

willing temporarily to receive a juvenile)

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54. His assertion that he tried personally on each occasion the matter came before him to find

alternative accommodation for her, was less so and more convincing. However, the record

demonstrates that on some occasions the committal of the applicant occurred in a more brusque

and summary manner than sought to be portrayed, and on other occasions the efforts of the

defendant to find alternative accommodation were made at the last moment, almost as an

afterthought, in rushed circumstances that reduced the chances of their success.

55. It also demonstrates that the applicant inexplicably refused to consider alternatives such

as the Sofia home, and the house of Mr. Rodriguez, even when it was indicated to him that Mrs.

Rodriguez had withdrawn her objections. His explanation however, that he had no reason to

believe that her position had changed is not doubted.

Whether in the circumstances of this case the Claimant needs to establish that Defendant

knew or ought to have known he was acting without jurisdiction

56. Rather than paraphrase the argument of the defendant on this issue, to avoid mis-

characterising it, it is simply set out hereunder. (Emphasis added)

In the case of Calder v Halket (1839-40), 3 Moo PCC 28, 2 Moo Ind App 293, 13 ER 12,

PC, where a judge in India had jurisdiction over natives but not over Europeans, bona

fide but in error issued an order against the plaintiff, who was a European, causing him

to be imprisoned. The question arose whether the judge was entitled to the protection of

21 Geo III, Cap 70, s 24 [UK]. The Privy Council was of the opinion that he was placed

in the same position as judges in England by the Act which protected him from actions

from things done within his jurisdiction, though erroneously or irregularly, but having

him liable for things done wholly without jurisdiction. It was held, in the circumstances,

that the order, on the facts available to the defendant, was issued in the bona fide, though

erroneous, belief that the matter was within his jurisdiction and as a result he was

protected.

Parke B, who delivered the judgment of the Privy Council in Calder v Halket (supra),

made it clear that it was well settled that a judge of a court of record in England, with

limited jurisdiction, or a justice of the peace, acting judicially with a special and limited

authority, is not liable to an action of trespass for acting without jurisdiction unless he

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had the knowledge or means of knowledge of which he ought to have availed himself

of that which constitutes a defect of jurisdiction, and it lies on the plaintiff, in every

case, to prove that fact. In Calder v Halket (supra), there was a mistake of fact made

which caused the judge to be without jurisdiction.

Similarly in Palmer v Crone [1927] 1 KB 804 where justices issued a distress warrant

against the plaintiff's goods on the evidence before them that the plaintiff was a monthly

tenant, whereas in fact he was a weekly tenant and within the ambit of ss 1 and 2 of the

Poor Rate Assessment and Collection Act, 1869 [UK], and therefore not liable to be

destrained upon, in an action for trespass against the justices claiming damages for

wrongfully issuing the warrant, it was held that although if the full facts had been

proved it would have been apparent to the justices that they had no jurisdiction to issue

the warrant, they were not liable in the action since they ought to consider only facts

known to them from materials properly before them and they had acted correctly in

point of law on the evidence which had been so proved.

Talbot J, in delivery of the judgment of the Court (in Palmer v Crone), held that the

justices were entitled to the protection of the Justices Protection Act, 1848 [UK], and

stated that the justices had acted correctly in point of law on the evidence before them

and were therefore not liable because the true facts had not been proved.

57. The true facts, and the facts available to him from the materials before him here are

that the defendant had available to him the statutory provisions. He is presumed to know the law,

and especially when committing someone to prison, must be presumed to have read the Children

Act, and particularly s. 45.

58. He had available to him the Probation officer’s report with the applicant’s date of birth,

and age.

59. Even if these cases are authority for the propositions contended for, the defendant clearly

had the means of knowledge of the matters which constituted the defect in his jurisdiction,

namely:

a. simply reading the statutory provisions under which he purported to act.

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b. simply reading the contents of his file, including the complaint and the probation officer’s

report.

c. he could simply have asked the defendant her age, at any stage, as he eventually did.

He cannot claim immunity based upon ignorance of facts and law which give rise to his own

mistaken belief of the existence of jurisdiction, when both were available to him.

60. The claimant had done nothing to deserve imprisonment and was entitled to proper

consideration of the facts and law in relation to her matter, both of which were clearly available

to the defendant.

Alleged failure to contest alleged lack of jurisdiction

61. It was contended in effect that objection to the jurisdiction of the magistrate’s court

needed to have been formally taken at some time during the progress of the case. Section 132 (a)

of the Summary Courts Act Chap 4:20 was cited in support.

“132. A notice of reasons for appeal may set forth all or any of the following reasons,

and no others:

(a) that the Court had no jurisdiction in the case—Provided that the Court of Appeal

shall not entertain such reason for appeal, unless objection to the jurisdiction of the

Court has been formally taken at some time during the progress of the case and before

the pronouncing of the decision;” [Emphasis added.]

62. Suffice it to say – the instant proceedings are not an appeal. The fact that the Defendant

Magistrate in his statement asserts positively that he was never made aware of this lack of

jurisdiction cannot possibly give him, by default, such jurisdiction to imprison a 17 year old

minor who had committed no offence, and was not even before him on a charge of committing

an offence.

63. Further, to seek to blame Mr. Rodriguez in the circumstances of this matter, as insinuated

in the submissions, is wholly inappropriate. Failure to take the point of absence of jurisdiction

would make no difference. The claimant was a minor. No one was speaking on her behalf except

Mr. Rodriguez. He was not trained in law and could not be expected to take any such point. To

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suggest that by failing to take the point of lack of jurisdiction the defendant somehow is

exonerated from the consequences of acting way in excess of jurisdiction needs simply to be

stated to be recognised as a non viable argument. The defendant must reasonably be expected to

ascertain his own jurisdiction, especially when interacting with lay litigants acting in person.

64. Even if on the last hearing attorney who finally appeared did not take the point of lack of

jurisdiction to make the Orders of committal, (and there is no reason to believe that he did not –

though the transcript of that day was not supplied), this does not alter the position .

65. A judicial officer does not obtain jurisdiction to commit an act outside of jurisdiction

simply because no one has objected. In the same way that consent cannot confer jurisdiction

where it does not exist, lack of objection cannot confer such jurisdiction

66. The contention that the Defendant was mistaken as to whether there was “a beyond

control application” before him, and on that basis he was under the view, (as it turns out,

erroneously), that he had the power to commit to the Women’s Prison, carries his case no further.

In fact it carries it backwards, and aggravates the situation.

67. He had a duty to inform himself of what was before him before purporting to exercise a

jurisdiction to commit the applicant to prison. It is incredible that the defendant would contend

that ignorance of the type of application over which he was presiding would result in justification

for his actions in committing the applicant to Prison, - repeatedly. If true, and there is no reason

to doubt the defendant when he says it is, it simply makes the matter far, far worse.

68. The Defendant could never be protected by the assertion that his ignorance of either facts

or law within his knowledge, (and I expressly find they must both have been within his

knowledge in this case),

a. can provide the basis for his claim to a jurisdiction that he does not possess by statute, or

b. can provide the basis for the protecting that purported jurisdiction, when exercised, from

challenge.

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Issue 4

Whether the magistrate had jurisdiction under the Children Act to have committed the

Claimant to the Women’s Prison and if so in what circumstances

69. Section 44 (4) of the Children Act Chap 46:01 is as follows:-

“44 (4) (a) Where a parent or guardian of a child proves to a Magistrate that he is

unable to control the child, and that he desires the child to be sent to an Orphanage

under this Part, the Magistrate, if satisfied on enquiry that it is expedient so to deal with

the child, and that the parent or guardian understands the results which will follow, may

order him to be sent to a certified Orphanage.

70. It is clear from the evidence of the magistrate himself that he was fully aware that Mr.

Rodriguez wanted the claimant to live at his home, and that Mrs. Rodriguez was vehemently

opposing this, as there had been issues and conflicts between her and the claimant, and that Mr

Rodriguez was finding himself in the middle. However, the disputes described, (for example,

interference with Mrs Rodriguez’s makeup), were a far cry from proving, as required by that

section, that the claimant was “beyond control”.

71. Further, even according to the transcript, no one, and certainly no parent or guardian, was

telling the magistrate that he/she desired that the claimant should be sent to a certified orphanage.

In any event the application before him was under section 45, by Mr Rodriguez, not under

section 44 by anyone else. In fact no guardian of the claimant was even before the court.

72. The defendant cannot therefore claim that he was acting under this provision.

Even if the defendant misinformed himself that that was the case, it is no excuse for his

subsequent actions in committing the claimant to Prison as this provision does not permit him to

commit the claimant to prison. It provides instead as follows:-

(b) However, if the Magistrate thinks that it is expedient that the child instead of being

sent to a certified Orphanage should be placed under the supervision of a probation

officer, the Magistrate may deal with him in like manner as, if he had been charged with

an offence, the Magistrate might have dealt with him under the Probation of Offenders

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Act, so however, that the recognisance on entering into which he is discharged shall bind

him to appear for having a detention order made against him.” [Emphasis added]

73. The alternative manner of dealing with such a situation was the placing of the claimant

under the supervision of a probation officer. The defendant cannot claim that he was acting under

this provision as this provision also does not permit him to commit the claimant to prison.

74. Further, section 44(5) of that Act provides as follows: -

“(5) Where, under this section, a Court is empowered to order a child to be sent to a

certified Orphanage, the Court, in lieu of ordering him to be so sent, may, in

accordance with the provisions of Part I, make an order for the committal of the

child to the care of a relative or other fit person named by the Court, and the

provisions of that Part shall, so far as applicable, apply as if the order were an order under

that Part.” [ Emphasis added.]

75. Section 44 (5) of that Act allows the Magistrate a discretion to commit a child to the care

of a relative or other fit person named by the Court. Other fit person must be interpreted ejusdem

generis, as meaning other fit person of the same order or nature as a relative. Even if that were

not so, other fit person must at the very least be a natural person.

76. It was submitted that by deeming the Women’s Prison a fit place, the Defendant opted to

exercise a discretion he had. The Magistrate Protection Act section 9 provides as follows: -

“9. No action shall be brought against any Magistrate for the manner in which he has exercised

any discretionary power given to him by law.” [emphasis added]

77. The fact is that he had no discretion whatsoever given to him by law to commit the

claimant to prison. There was no jurisdiction given to him by law for him to so do. The argument,

in effect, that the defendant so drastically misdirected himself as to convince himself that he had

a discretion to consider and deem the Prison or any Prison, to be a fit person is convoluted and

without rational basis. Believing, without any foundation for such belief, that one has a

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discretion, and then misapplying that mistaken discretion, cannot create a discretion where it

does not exist.

78. Misapplying a discretion in the exercise of a jurisdiction which actually existed, is quite

a different matter from this case, where no jurisdiction to commit the claimant to Prison has

been shown to exist. Therefore no discretion as to the exercise of that claimed non- existent

jurisdiction could exist.

79. It is stretching credibility to contend that the Women’s Prison is a fit person under this

provision as the magistrate in his sole discretion has so deemed it. A Prison is not a person.

Even if the definition can be so stretched, the basis on which it was deemed fit appears as

mysterious as it was arbitrary.

80. It is self evident, and should not even need to be stated, that a judicial discretion must be

exercised judicially and rationally. A judicial discretion is not absolute. It must have some basis

in logic and common sense. It cannot be exercised in an arbitrary and nonsensical manner and

yet be considered an exercise of judicial discretion.

Whether the defence of “necessity” is available to the Defendant in the circumstances of

this case

81. The “defence” of necessity simply cannot arise in this case. Such an excuse can only even

begin to be considered if the defendant – on the facts of this matter – had no alternative available

to him but to commit the applicant to prison. The facts in the instant matter are otherwise.

82. For the sake of completeness the main alternatives available for accommodating the

Claimant at the material time are set out hereunder:

a. The applicant’s father – it is accepted that he could not be located and that he was not a

realistic option to provide accommodation for the claimant. He had never done so previously and

even his location was uncertain.

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b. the applicant’s grandmother – it is accepted that the applicant did not have specific contact

information for her, and there was no reason to believe that she would, after several years, now

have been willing to accommodate the claimant.

c. the claimant’s sister – I accept that this was not a realistic option in light of the fact that there

had been an altercation between the latter’s boyfriend and the claimant, and she had apparently

expressed unwillingness to accommodate the claimant again.

d. Mr. Rodriguez – he was willing to accommodate the claimant. His wife however was not

willing at that time.

83. It is not really in dispute that the claimant had run out of options as to places to stay.

However she was 17 years old and nothing prevented the defendant from either -

a. making the guardianship order that Mr. Rodriguez had sought, (under the mistaken belief that

by doing so he could prevent the claimant from being placed in jail).

b. declining to make that order and simply allowing the claimant to walk out of his court. While

this may not have been the ideal, the committal to Prison of the Claimant, a 17 year old

schoolgirl, who had not committed any offence, has not been demonstrated to have been any

better.

84. It is tragic that the very order that Mr Rodriguez sought - to prevent the claimant from

being placed in jail, in fact precipitated that very result. Even the cases cited in support of this

defence of necessity recognise that while it potentially could permit the detention of those who

were a danger, or potential danger, to themselves or others, this must be shown to have been

necessary.

85. The following cases were cited on behalf of the defendant in support of the applicability

of the doctrine of necessity and are reproduced below from his submissions.

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In R v Bournewood Community and NHS Trust ex parte L [1999] AC 458 at 490 - Lord

Goff stated: The second point relates to the function of the common law doctrine of

necessity in justifying actions which might otherwise be tortious, and so has the effect of

providing a defence to actions in tort. The importance of this was, I believe, first revealed

in the judgments in F v West Berkshire Health Authority [1989] 2 All ER 545, [1990] 2

AC 1. I wish, however, to express my gratitude to counsel for the appellants, Mr John

Grace QC and Mr Andrew Grubb, for drawing to our attention three earlier cases in

which the doctrine was invoked, viz R v Coate (Keeper of a Madhouse) (1772) Lofft 73

esp at 75, 98 ER 539 esp at 540 per Lord Mansfield CJ, Scott v Wakim (1862) 3 F & F

328 at 333, 176 ER 147 at 149 per Bramwell B and Symm v Fraser (1863) 3 F & F 859

at 883, 176 ER 391 at 401 per Cockburn CJ, all of which provide authority for the

proposition that the common law permitted the detention of those who were a danger, or

potential danger, to themselves or others, in so far as this was shown to be necessary.

(emphasis added).

In this case nothing of the kind has been shown to have been necessary.

86. It is submitted that having regard to the witness statements, the viva vocé evidence under

cross-examination of all the witnesses, that the Defendant acted in the best interests of the

Claimant, and/or in the genuine, bona fide belief that he was protecting the Claimant, and in her

best interest.

87. Impressive and commendable as this may sound, it was without basis on the evidence.

That protection was in fact no protection. It is still unclear from what specifically the Defendant

thought he was protecting her.

Whether the Defendant is immune from suit

88. It was submitted that the court should decline to follow the approach of the House of

Lords in re McC [1985] 1 AC 528, (which allowed an action for damages for false imprisonment

to proceed against a magistrate), and instead follow the approach of the New Zealand Court of

Appeal in Harvey v Derrick [1995] 1 NZ LR 314.

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89. The New Zealand approach to immunity for inferior courts required a finding of “gross

negligence” before an inferior court would be deprived of immunity in respect of orders, actions

or decisions made in the course of office.

90. However, in so far as that approach may be considered to be applicable, the distinction is

entirely academic. In the instant case it would make no difference as the actions of the defendant

can hardly be characterized as anything else. It is clear, and I find that it is indisputable, that

there was gross negligence:

a. in not ascertaining and confirming the existence of the statutory jurisdiction to commit the

claimant to Prison.

b. in not ascertaining the claimant’s age when this was a critical and fundamental matter, which

appeared on the record before him,

c. in repeating the grave error of committing the claimant to Prison on several occasions.

Conclusion

91. It was submitted that: -

i. That Section 5(2) and 6 of the Magistrates’ Protection Act provide a complete bar to this

claim.

It is clear that they do not.

ii. That further and/or alternatively, the Court should hold, following the New Zealand

Court of Appeal approach, that the defendant Magistrate is immune from suit.

In so far as that approach would lift immunity in the case of gross negligence, the latter

has been demonstrated on the facts, and immunity would not here apply, even if the

Magistrates Protection Act did not already cover the issue.

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iii. That if the Court finds that the Magistrate’s order of committal on the facts available to

him was issued in the bona fide, though erroneous, belief that the matter was within his

jurisdiction, then the Defendant is not liable.

While I find that no malice has been demonstrated, the contention that the defendant’s

own subjective personal belief must be considered in ascertaining whether he has

jurisdiction, is not accepted.

If the argument is that that belief protects him from suit for those actions even if those

were without jurisdiction, there is no sufficient authority for such a proposition in this

case.

iv. That the Defendant was entitled to commit the Claimant to the Women’s Prison for safe

keeping by virtue of sections 44(4) and 44 (5) of the Children’s Act and was therefore

within jurisdiction, and that if anything, he was exercising a discretion to deem the

Women’s Prison a fit person in the circumstances.

This is rejected. He had no such jurisdiction over the Claimant. He had no judicial

discretion or jurisdiction to deem the Women’s Prison a fit person – when there was no

basis for deeming it fit, and when it could not rationally even be considered to be “a

person.”

v. That the defence of necessity arises and the conduct of the Defendant Magistrate was

necessary and proportionate and in the best interests of the Claimant.

This has not been established on the facts of this case.

92. It stretches credibility to contend that in making repeated orders placing the claimant in

Prison without considering, at the very least,

a. the stigma that would attach to her,

b. the impact this might have on prospective employers,

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c. the fact that the claimant was attending school, (whether she absented herself occasionally is

not relevant at this stage), and

d. the fact that the claimant would have had examinations to write,

that he was acting in her best interests.

93. Though the defendant alleges that he was acting in the best interests of the claimant, in

fact that conduct was thoughtless, highhanded and an indefensible abuse of authority. It was not

a single mistake which resulted in a one time committal to prison, inexcusable as that would

have been.

94. It did not cause the defendant to ponder whether the correct decision had been made, to

review the statutory jurisdiction that he purported to exercise, or to recognize or consider the

very serious nature and consequences of those several orders. It was instead a course of action

repeated on multiple occasions, which simply should not have occurred even once.

Disposition

95. The Claimant is entitled to damages for false imprisonment, to be assessed by this court

on the evidence already led at trial.

96. The defendant is to pay the costs of the trial and the assessment to the claimant on the

basis prescribed by the Civil Proceedings Rules for a claim in the amount of damages eventually

assessed.

Dated the 23rd

day of May, 2014

Peter A. Rajkumar

Judge.