Baugh (Arthur) v Courts Jamaica Ltd and Attorney General of Jamaica

• Jurisdiction: Jamaica
• Judge: SYKES J
• Judgment Date: 06 October 2006
• Judgment citation (vLex): [2006] 10 JJC 0601
• Court: Supreme Court (Jamaica)
• Date: 06 October 2006

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

BETWEEN

ARTHUR BAUGH

CLAIMANT

AND

COURTS (JAMAICA) LIMITED

FIRST DEFENDANT

AND

ATTORNEY GENERAL OF JAMAICA

SECOND DEFENDANT

Miss Judith Clarke instructed by Judith M. Clarke & Company for claimant

Miss Sherry Ann McGregor and Miss Ayana Thomas instructed by Nunes Scholfield Deleon and Company for the first defendant

Miss Nicola Brown instructed by the Director of State Proceedings for the second defendant

EMPLOYMENT LAW - Unfair dismissal

MALICIOUS PROSECUTION -

SYKES J

1 1. Mr. Arthur Baugh's employment with Courts (Jamaica) Limited ("Courts") that began so promisingly on May 25, 1995, came to an abrupt and ignominious end on November 19, 1996, when he was taken into custody by Detective Sergeant Derrick Knight (now Deputy Superintendent) because he was suspected of committing two serious offences: larceny and conspiracy to steal. Later that day Mr. Baugh was charged with larceny of a Sony and an Akita component sets and conspiracy to defraud. Having been charged with the felony and misdemeanour he was first taken to court at the Resident Magistrate's Court for the Corporate Area on November 21, 1996, having sojourned in the cells of the Hunt's Bay Police Station from the evening of Wednesday, November 19, 1996, to the morning of Thursday, November 21, 1996. An examination of the police statements collected in the matter as well as Mr. Knight's statement shows that all investigations and laying of charges were completed on November 19, the same day he was taken into custody. No evidence has been forthcoming from the Attorney General explaining this delay in putting Mr. Baugh before the court on Wednesday, November 20, 1996. On January 6, 1997, the serious charges against Mr. Baugh collapsed because Court sent a letter to the Clerk of Courts alleging that its employees were fearful and did not wish to give evidence. Before this ignominious retreat by the prosecution Mr. Baugh was granted bail on November 21, 1996, but was not able to take advantage of the offer until November 26, 1996.

2 2. If that were not enough on his return home Mr. Baugh received a letter dated November 21, 1996, from his employers in these terms:

Due to your involvement in the recently attempted larceny from the Distribution Centre, of items which are the property of Courts (Jamaica) Limited, I regret to advise that we have lost confidence in you and your services are hereby terminated with immediate effect.

3 3. The letter was signed by Mrs Ouida Ridgard, Director of the Human Resource Division. These events precipitated the efforts by Mr. Baugh to seek redress.

4 4. By an amended writ of summons and an amended statement of claim Mr. Arthur Baugh is claiming damages against Courts, the first defendant and the Attorney General of Jamaica ("AG") the second defendant. As against the Courts he claims damages for false imprisonment, malicious prosecution, defamation and wrongful dismissal. In respect of the AG he seeks compensation for false imprisonment and malicious prosecution. There was also a claim for aggravated and exemplary damages but these have been abandoned by Mr. Baugh. I shall deal with the claim for false imprisonment first

False imprisonment

5 5. In the case of Peter Flemming v Det. Cpl. Myers and the Attorney General (1989) 26 J.L.R. 526 a little noticed examination of the interplay between section 15 (3) of the Constitution of Jamaica and the tort of false imprisonment occurred. Two of the three judges who heard the appeal discussed the connection. I shall refer to that discussion later. The facts are that Flemming brought an action for false imprisonment and malicious prosecution. He had been arrested and charged with murder. He was connected to the crime by a statement given by someone who was supposed to be an eyewitness. The witness did not turn up to support the charge. The result was that the criminal proceedings were terminated in his favour. After his initial arrest he was held in custody fourteen days before he was brought to court. There was no explanation for this undue delay. The trial judge dismissed his claims for false imprisonment and malicious prosecution. On appeal the judge's dismissal of the malicious prosecution claim was upheld on the basis that there was reasonable and probable cause to charge the claimant because the police had a statement from an alleged eyewitness who could not be found when needed. The claimant succeeded on the false imprisonment claim. All three Justices of Appeal agreed that fourteen days was too long for the claimant to be in custody before being placed before the court. The case establishes that there can be a successful claim for false imprisonment even if the claim for malicious prosecution fails. Liability in these circumstances for the tort of false imprisonment is predicated on the undue delay in taking the accused before the court if he has not been granted bail.

6 6. Section 15 (3) of the Constitution states:

Any person who is arrested or detained

• (a) for the purposes of bringing him before the court in execution of the order of a court or;

• (b) upon reasonable suspicions of his having committed or being about to commit a criminal offence,

and who is not released, shall be brought without delay before a court; and if any person arrested or detained upon reasonable suspicion of his having committed or being about to commit a criminal offence is not tried within a reasonable time, then, without prejudice to any further proceedings which may be brought against him, he shall be released unconditionally or upon reasonable conditions, including in particular such conditions as are reasonably necessary to ensure that he appears at a later date for trial or for proceedings preliminary to trial. (My emphasis)

7 7. The discussion of section 15 (3) in Flemming arose because counsel for the claimant advanced two propositions. First, a period of 72 hours was a reasonable time for the police to have someone in custody before taking him before a court. The court rejected this argument and all three judges held that reasonableness depends on the circumstances of the case. Second, having regard to section 15 (3) the detention was more than the time permitted by the Constitution. It seems that counsel had submitted that the phrase without delay conveyed the sense of immediacy whereas reasonable time, has built within it the idea that there may be some delay which might breach the without delay standard but still satisfies the test of reasonable time. Counsel's submissions were rejected by Carey P (Ag) and by Forte J.A. (as he was at the time). Each rejected the argument for different reasons.

8 8. In discussing the liability for false imprisonment Carey P (Ag) noted that in Jamaica there was no general statutory provision indicating when a person charged with a criminal offence should be brought before the court. His Lordship noted that the Constitution required that persons who were not granted bail should be brought before the court "without delay". He then added that the issue before the court was a contravention of the common law. Inferentially, he appears to be saying that he did not see the need to consider the Constitution any further because no claim was being made under the Constitution.

9 9. Forte J.A. at page 532I – 533A, immediately after citing section 15 of the Constitution states:

At common law, a police officer always had the power to arrest without warrant, a person suspected of having committed a felony. In those circumstances however, he was compelled to take the person arrested before a Justice of the Peace within a reasonable time. The fundamental rights and freedoms which are preserved to the people of Jamaica by virtue of the Constitution, are rights and freedoms to which they have always been entitled. In D.P.P. v Nasrala [1967] 3 W.L.R. 13 at page 18 Lord Devlin in delivering the judgment of the Board acknowledged this proposition. In referring to Chapter III of the Constitution which preserves the fundamental rights and freedoms he stated:

This chapter as their Lordships have already noted, proceeds upon the presumption that the fundamental rights which it covers are already secured to the people of Jamaica by existing law.

It is my view, therefore, that the words "without delay" as used in section 15 (3) ought to be construed in the light of the common law right which had previously existed and in arriving at the appropriate period which would constitute action "without delay", all circumstances of the particular case should be examined in order to determine whether the person arrested was brought before the Court within a reasonable time. (My emphasis)

10 10. The lasting and invaluable significance of this passage is not so much the result of the analysis but the recognition that the Constitution is not divorced from the common law in the tort of false imprisonment. Forte J.A. did not say that, conceptually as Carey P (Ag) suggested, there is no connection between section 15 (3) of the Constitution and the tort of false imprisonment. In my view a fair reading of Forte J.A.'s judgment on this point is that had he found it possible to let the Constitution override common law he would have done so. He could not give effect to Constitution because he was bound by the D.P.P. v Nasralla [1967] 2 A.C. 238, a Privy Council appeal from Jamaica.

11 11 .In Nasralla Lord Devlin read down the Constitutional provisions. In his view the Jamaican Constitution gave no further protection than that already provided by the common law. In this construct, it naturally follows that Lord Devlin would not see the possibility of the Constitution offering any greater protection than the common law. Lord Devlin was not fully cognisant of the need to interpret the...