Boney v The Attorney General

• Jurisdiction: Trinidad & Tobago
• Judge: V. Kokaram
• Judgment Date: 13 April 2017
• Neutral Citation: TT 2017 HC 53
• Docket Number: Claim No. CV2015-04084
• Court: High Court (Trinidad and Tobago)
• Date: 13 April 2017

IN THE HIGH COURT OF JUSTICE

Before

The Honourable Mr. Justice V. Kokaram

Claim No. CV2015-04084

Between

Anthon Boney

Claimant

and

The Attorney General of Trinidad and Tobago

Defendant

Appearances:

Mr. Lee Merry instructed by Mr. Kelston Pope for the Claimant

Ms. Coreen Findlay instructed by Ms. Rachael Thurab, Mr. Ryan GrantandMs. Laura Persadfor the Defendant

Legislation:

Emergency Powers Regulations 2011, Reg. 16

Tort - False imprisonment — Arrest — Detention — Damages — Whether power of arrest without warrant imported legal requirement of ‘reasonable suspicion’ — Whether reasonable of police officer to suspect claimant was about to commit an offence — Whether claimant falsely imprisoned — Whether claimant entitled to damages — Whether claimant entitled to exemplary damages.

JUDGMENT

1. This is a claim for damages for false imprisonment arising from the arrest and detention of the Claimant, Anthon Boney, on 29^th November 2011. The arrest and detention took place during a State of Emergency1 and under the Emergency Powers Regulations (EPR) 20112. The State of Emergency was declared by the Government of Trinidad and Tobago to deal with escalating crime in certain parts of the country which was the subject of widely published media reports.

2. Mr. Boney's arrest was a very serious matter. It was alleged by the Defendant that then Deputy Commissioner of Police (DCP) Mr. Mervyn Richardson had received information in

November 2011, during the course of the State of Emergency, that Mr. Boney was involved in a plot to assassinate the Prime Minister and other government minsters. He had information that Mr. Boney had teamed up with other gang leaders such as Barry Barrington and Selwyn Alexis also known as “Robocop” among others. Mr. Boney was detained for a total of 7 days “for inquiries” and was released on 5^th December 2011 without any charge being laid against him.

3. This claim requires the Defendant to prove that the condition precedent under Regulation 16 of the EPR for Mr. Boney's arrest and continued detention existed. In particular, firstly, whether the arresting officer, Police Corporal Charles Budri, “suspected that Mr. Boney was about to act in a manner prejudicial to public safety or to public order or was about to commit an offence against the Regulations”. Secondly, whether his detention beyond 24 hours was justified or necessary, for the purposes of “conducting or completing inquiries”, or in the circumstances of this case.

4. Mr. Boney's arrest and detention pursuant to Regulation 16 of the EPR goes against the grain of the common law and several criminal statutes3 which requires there to be a “reasonable suspicion” that an offence is being committed to deprive a person of his liberty. Regulation 16 EPR plainly empowers a police officer to arrest without warrant, any person whom he “suspects has acted or is acting or is about to act in a manner prejudicial to public safety or order or …about to commit an offence under the EPR”. The operative word for the purposes of this claim is suspicion and not reasonable suspicion or reasonable grounds to believe.

5. Powers of arrest have long been predicated on the need for a police officer to have reasonable suspicion of a person's involvement in criminal activity before it is exercised. It is a requirement which seeks to preserve the integrity of the person from arbitrary arrest, a long standing fundamental constitutional human right of liberty.4 Recognising the equally important protection of the community that is served by powers of arrest in the detection of crime, the requirement of “reasonable suspicion” has therefore evolved over the years and codified in statute as a fundamental safeguard to prevent abuse of that power. See O'Hara v Chief Constable of the RUC [1997] AC 286

and Abdul Kareem Muhamad v AG HCA No. 3768 of 1990 per Best J.

6. “Suspicion” of course on its own is a state of conjecture or surmise where proof is lacking where one says “I suspect but cannot prove”. Suspicion arises at or near the starting point of an investigation of which the obtaining of prima facie proof is the end. See Lord Devlin in Shaaban Bin Hussien and Others v Chong Fook Kam and Another [1969] 3 All ER 1626 at 1630. Suspicion then is an expectation that the targeted individual is possibly engaged in some criminal activity. A reasonable suspicion means something more than mere suspicion and goes beyond the subject belief of the arresting officer to the existence of objectively ascertainable facts. As far back as the 1940s with Liversidge v Anderson and Another [1941] 3 All ER 3385 and Dumbell v Roberts [1944] 1 All ER 326 it was recognized that reasonable grounds for suspicion to legitimatise an arrest without warrant is a viable protection to the community. The power of arrest was itself recognised as open to abuse to become a danger to the community, instead of a protection, if the Court does not supervise the exercise of that power. As Lord Hoffman observed in A and others v Secretary of State for the Home Department; X and another v Secretary of State for the Home Department [2004] UKHL 56 “nothing could be more antithetical to the instinct and traditions of people as the power to detain indefinitely without charge”. The judicial scrutiny of the power of arrest therefore counterbalances the competing rights of the community to security with the rights of the individual to liberty and freedom from restraint. The legitimate fulcrum in this balance is the requirement of “reasonable suspicion”.

7. Why this inquiry as to the shades of difference between mere suspicion and reasonable suspicion is important is therefore the constitutional dimension of the fact that human rights can be infringed by acts of the State in the prevention of crime. In the context of the common law, the power of arrest without warrant is a draconian power only legitimized by the requirement of “reasonable suspicion”. More so in legislation. In Regulation 16 however the requirement of “reasonable” has been deliberately removed by the drafter of the law. It is a law

nonetheless which is recognized as having been passed notwithstanding the breach of fundamental human rights. Such is the nature of emergency power legislation and global counter-terrorism legislation. One cannot ignore the underlying purpose of the EPR as a counter-terrorist mechanism to in fact protect threats to public safety, preserve the integrity of the community and to preserve an equally important human right: that of human security. Terrorism and wanton acts of criminal activity threaten the very fabric of our democracy. It is an assault upon and threat to the most fundamental rights of the inhabitants of our democratic state, the right to life, liberty and security of the person and a collective right to peace. “Human security means as well freedom from fear from pervasive criminal attacks which challenges individual fundamental rights, safety and lives”.6

8. There is no question in this case therefore of the legitimacy of the purpose of the EPR legislation under which the power of arrest is being exercised. As the Law Lords observed in A and others v Secretary of State for the Home Department “Where the conduct of government is threatened by serious terrorism, difficult choices have to be made and the terrorist dimension cannot be overlooked.”7 Similarly, in this case, it cannot be overlooked, as observed by Counsel for the Defendant, that this is a nation that has endured the reverberating pangs of criminal activity from the 1970 insurrection to the 1990 attempted coup to an increasing crime rate for a small nation which resulted in the Government's decision to declare a State of Emergency in 2011. It is also not to be overlooked that a growing debate in the international community seeks to debunk a concept of “one man's terrorist is another's freedom fighter”8. But it may be relevant here historically in this jurisdiction, looking further back in our history to our own freedom fighters the several rebellions by slaves and indentured labourers against unjust laws. It serves to demonstrate the hard fought struggle for liberty and personal freedom. That struggle is the historic and enduring background to a collective value of freedom which we all cherish — human security and public safety which criminal activity threatens and which the EPR legislation was designed to protect.

9. How the democratic government has responded to these threats to the life of the nation by the passage of the EPR under which Mr. Boney was arrested, is not under question. In making a proclamation that a State of Emergency existed the President was satisfied that “action has been taken or is immediately threatened by persons or bodies of persons of such a nature and on so extensive a scale as to be likely to endanger the public safety”9. The community and thus nation thrives under its own system of governance, laws, morals and values. When threatened it deserves protection. But in doing so it must not be at the expense of the very freedoms and liberties which are the marrow of our own values. The passage of draconian legislation such as EPR legislation, or counter-terrorist measures, are indeed democratic acts to protect community rights, the right to human security and collective peace. These are political decisions with human rights dimensions. But equally the Court as the “specialist in the protection of liberty and interpretation of legislation”10 is well placed to subject such legislation to careful scrutiny. The Court will remain anxious that deeply held individual rights which form the backdrop to cherished values of liberty, the rule of law and democracy are not sacrificed on the altar of the search for communal peace.11

10. It is against this backdrop the question of the false imprisonment of Mr. Boney arises in this case. Where the only requirement to detain and arrest without...