Bent (Keith) v Attorney General of Jamaica; Faithlyn Bent v Attorney General of Jamaica; Sophia Bent v Attorney General of Jamaica [Consolidated Claims]

• Jurisdiction: Jamaica
• Judge: BROOKS, J.
• Judgment Date: 18 December 2006
• Judgment citation (vLex): [2006] 12 JJC 1901
• Court: Supreme Court (Jamaica)
• Date: 18 December 2006

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

IN CIVIL DIVISION

CONSOLIDATED CLAIMS

BETWEEN

KEITH BENT

CLAIMANT

AND

THE ATTORNEY GENERAL OF JAMAICA

DEFENDANT

BETWEEN

FAITHLYN BENT

CLAIMANT

AND

THE ATTORNEY GENERAL OF JAMAICA

DEFENDANT

BETWEEN

SOPHIA BENT

CLAIMANT

AND

THE ATTORNEY GENERAL OF JAMAICA

DEFENDANT

FALSE IMPRISONMENT - MALICIOUS PROSECUTION

-

BROOKS, J

1 On August 18, 1995, three members of one family came in violent confrontation with a party of security personnel. They were Keith Bent and his sisters Faithlyn and Sophia. This was at Ellerslie Pen; an inner city community in the parish of Saint Catherine. At the end of the incident, all three had been arrested and charged for various offences. None was convicted. They all say that they were beaten and imprisoned by the police. Each has claimed damages for the alleged wrong done to them.

2 The Attorney General has opposed the claims, asserting firstly, that only reasonable force was used against Keith when he resisted the attempts of the police to prevent him breaching the peace. In the cases of Faithlyn and Sophia, the Attorney General has denied that either of them was struck.

3 One issue of law which has arisen during submissions by counsel, is whether the prosecution of the cases against the Bents, being adjourned sine die, was a determination in their favour. I shall first outline the facts, make a determination in respect of that legal issue and then turn to the question of the assessment of damages. For convenience I shall refer to the claimants by their respective first names. No disrespect is intended by the reference.

4 Findings of fact

5 The claim by the Bents is that Keith was set upon by the police when he accused them of improper behaviour. His sisters in turn said that while he was being beaten they sought to rescue him and were also beaten by the police, for their trouble. The Attorney General was hampered in his defence because he could only produce a statement made by one of the police officers involved; a Constable Trevor Brown. The statement was written some three and a half years after the incident, and apparently for the purposes of defending these claims. The statement asserted that the police went to the location in answer to a complaint and there saw Keith behaving boisterously. Their attempts to speak to him were met with aggression by him. They attempted to take him into custody but were attacked by his sisters. A crowd gathered and the police had to leave with the three Bents.

6 With the limitation of a cold, fairly terse statement, it was, for the purposes of determining the facts on a balance of probabilities, difficult to resist the sworn testimony of the three Bents.

7 Mrs. Thompson, for the Attorney General, made a valiant attempt to identify discrepancies in the claimants' testimonies, but I accept that the majority were not material. They concerned matters such as whether the offending police officers were part of a joint patrol of soldiers and police, and as to the number of persons who travelled in a jeep to the police station with the Bents. These, I find, are explained by the fact that the incident occurred over eleven years ago. There was one discrepancy which I did find material. It is that there is a stark contrast between Keith's account and that of the police as to the genesis of the trouble between them. Keith says that it started when he saw his cousin in the custody of the police. The police officer's statement speaks only to Keith's behaviour and impliedly rules out the initial presence of any other person. Interestingly, neither of Keith's sisters speaks of their cousin being present. In fact Sophia said that her cousin was not present. I am nonetheless prepared to find that their late arrival on the scene and their immediate involvement in the matter could explain the failure of the sisters to notice the cousin. The lapse of time could also explain this discrepancy. I therefore accept the account of the Bents as to the occurrences giving rise to the claims. I therefore find that the police officers acted maliciously and without reasonable and probable cause. I shall now assess each cause of action in the respective claims.

8 Assault and Battery

9 All three Bents testified that they were struck by the police at the location at Ellerslie Pen. Keith was beaten with a baton and kicked and punched. A gun was also pointed at his head. He says that his clothes were torn during the incident. Faithlyn, who was next on the scene, was "boxed" and "teargas was sprayed all over [her] eyes and mouth and all over [her] face". Sophia, eight months pregnant at the time, came in for beating all over her body. At the police station, both women say they were treated to another round of physical abuse by Constable Brown. Faithlyn testified that her clothes were torn from her and she was reduced to a state of nakedness save for her panties.

10 False Imprisonment

11 The Bents were taken to the Spanish Town Police Station where they were all detained for a period of four hours. It is for the person detaining to 17 ^th justify the detention. (Clerk and Lindsell on Torts 17 Ed. Para 12–33) This, the Attorney General, has failed to do. I therefore find, based on the facts as I have found them, that the imprisonment was unlawful.

12 Malicious Prosecution

13 The Bents were each charged with Assaulting Police, Resisting Arrest and using Indecent Language. Sophia was also charged with Obstructing Police. Keith stated that the charge of Resisting Arrest against him was dismissed. There is no specific evidence to the contrary. Apparently all the other charges against all three were adjourned sine die.

14 It is essential in a claim for Malicious Prosecution, for the claimant to prove that the prosecution was determined in his favour. Mrs. Taylor-Wright appearing for the Bents, submitted that an adjournment sine die was a determination in favour of the Bents. She relied on a judgment of Sykes J. in B &D Trawling Ltd. v Cpl Raymond Lewis and others, (C.L. B 015 / 2001) (delivered January 6, 2006) (unreported). There, Sykes J. stated:

"It is convenient to deal at this point with the issue of whether an adjournment sine die is a sufficient determination in favour of the claimant to ground a claim for malicious prosecution. Mrs. Foster-Pusey submitted that it is not. I do not agree with her. All the reasons she articulated could apply to a nolle prosequi yet no one has suggested that a nolle prosequi is insufficient to ground the tort of malicious prosecution. A nolle prosequi does not finally determine the guilt or innocence of the accused. Indeed, he can be prosecuted even after the entry of a nolle prosequi. If that is so, why isn't an adjournment sine die sufficient? The defendant can still be prosecuted. I therefore conclude that the adjournment sine die...is a sufficient determination in favour of B &D to enable them to initiate action for malicious prosecution."

15 As I hope to demonstrate below however, it appears that there is no definitive answer to the question. There is a division of opinion on the point. In Clerk and Lindsell on Torts (supra), the learned authors at paragraph 15–19, state that although the prosecution must have been brought to a "legal end", that end need not be a final and conclusive one. They also make the following assertion:

"So, it is...