Attorney General v Glenville Murphy

• Jurisdiction: Jamaica
• Judge: HARRIS JA
• Judgment Date: 20 December 2010
• Judgment citation (vLex): [2010] 12 JJC 2005
• Court: Court of Appeal (Jamaica)
• Date: 20 December 2010

[2010] JMCA Civ 50

IN THE COURT OF APPEAL

BEFORE:

THE HON MR JUSTICE COOKE JA THE HON MRS JUSTICE HARRIS JA THE HON MR JUSTICE MORRISON JA

BETWEEN

THE ATTORNEY GENERAL

APPELLANT

AND

GLENVILLE MURPHY

RESPONDENT

Miss Lisa White and Mrs Trudy-Ann Frith instructed by Director of State Proceedings for the appellant

Rudolph Smellie instructed by Daly, Thwaites & Company for the respondent

FALSE IMPRISONMENT - Issues of liability - Issue of quantum - Leave to appeal liability and costs

HARRIS JA

1 On 19 February 2009 we dismissed an appeal with respect to liability, allowed the appeal in respect of quantum, set aside the award of $600,000.00 and substituted therefor an award of $180,000.00. We ordered that the respondent should have his costs in the court below and 50% of the costs of the appeal. We promised to put our reasons in writing. We sincerely regret the delay in doing so.

2 Sometime between 8:30 and 9 o'clock on the morning of 5 April 1998, the respondent was taken from his house and arrested by the police on an allegation that he had sexual intercourse with his daughter. He was detained in custody and released at 10:00 am on 6 April 1998. The arrest had its genesis in a report made to the police by Mrs Venice Lawrence-Beckford, the half sister of the respondent's daughter. She was subsequently medically examined, at which time it was discovered that she was a virgin.

3 The respondent, being aggrieved, commenced an action seeking damages against the appellant and others for false imprisonment. In an amended statement of claim, his particulars of special damages were stated to be as follows:

"Loss of contract to plant 2 acres of coffee $250,000.00."

4 Sykes J made the following order:

"Mr Murphy has established his claim for false imprisonment. The award is $600,000.00 at 3% interest from August 10, 1998, to October 9, 2007. The claim for special damages fails. Costs to the claimant to be agreed or taxed."

5 Four grounds of appeal were filed. Ground four will first be addressed as it relates to liability. The ground is stated as follows.

Ground 4

"The Learned Judge erred in finding that the word 'reasonable' and the adverb 'reasonably' import a standard outside that of the specific police officer. Further, that the officer is not permitted to set his own standard and act on that."

6 Miss White submitted that the test which the learned trial judge applied as to reasonable suspicion, is not well founded as he imported a standard outside of that which is required by law by equating prima facie proof with reasonable suspicion. In giving consideration to the matter, she argued, the learned trial judge followed the dissenting judgment in the case of O'Hara v Chief Constable of the Royal Ulster Constabulary [1997] AC 286 and by so doing, he imported into his decision the standard mandated by Article 5 (l)c) of the European Convention for the Protection of Human Rights and Freedoms, the provisions of which are wider than section 13 of the Constabulary Force Act.

7 Section 13 of the Constabulary Force Act authorizes the police to apprehend any person who they reasonably suspect to have committed a crime. The relevant portion of that section for the purpose of the appeal is outlined thus:

"The duties of the Police under this Act shall be to keep watch by day and by night, to preserve the peace, to detect crime, apprehend or summon before a Justice, persons found committing any offence or whom they may reasonably suspect of having committed any offence..."

8 The fact that the police are empowered to arrest and detain in custody any person on suspicion of his having committed an offence does not mean that they are at liberty to do so without lawful justification. This suspicion must be reasonable. The police must show that the arrest was justified. An action for false imprisonment offers a safeguard against police excess and abuse of their powers. As a general rule, no injury is suffered by a claimant where he is arrested but subsequently shown to be innocent before taken to court. However, in circumstances where he is detained for on unreasonable period, then the detention constitutes the wrong, making the detention illegal ab initio. In Flemming v Detective Corporal Myers and The Attorney General (1989) 26 JLR 525 at page 530 Carey P (Ag) said:

"Where the person arrested is released, upon proof of his innocence or for lack of sufficient evidence before being taken to court no wrong is done to him. Where however he is kept longer than he should, it is the protracted detention which constitutes the wrong, the "injuria". This abuse of authority makes the detention illegal ab initio. I see nothing either in principle or in authority to prevent an action for false imprisonment. Indeed it is a valuable check on abuses of authority by the police."

9 The burden is on the claimant to prove that the police had no lawful justification for his arrest. However, if it is shown that the arrest was unjustifiable and the period of detention unjustifiably lengthy, the onus shifts to the defendant to show whether in all the circumstances, the period of detention was reasonable - see Flemming v Det. Cpl. Myers and The Attorney General .

10 The learned trial judge observed that it is common ground that the police may carry out an arrest on reasonable suspicion. He then went on to outline section 13 of the Constabulary Force Act. Thereafter, at paragraphs 7 and 8 he continued by saying:

"From...