Mervin Cameron v The Attorney General

JurisdictionJamaica
JudgeSykes J,D. Fraser J,Anderson J
Judgment Date04 September 2018
Neutral Citation[2018] JMFC FULL 4
Docket NumberCLAIM NO. 2017HCV01084
CourtSupreme Court (Jamaica)
Date04 September 2018

[2018] JMFC FULL 4

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

CONSTITUTIONAL DIVISION

THE HONOURABLE Mr Justice Bryan Sykes

THE HONOURABLE Mr Justice David Fraser

THE HONOURABLE Mr Justice Kirk Anderson

CLAIM NO. 2017HCV01084

(No 2)

Between
Mervin Cameron
Claimant
and
Attorney General of Jamaica
Defendant

Hugh Wildman and Barbara Hines for the claimant

Kamau Ruddock and Kimberly Clarke instructed by the Director of State Proceedings for the defendant

Cases referred:

Merson v. Cartwright and another (Bahamas) [2005] U.K.P.C. 38

White v. Cammock and Attorney General Claim No. HCV 787/2006

Welch v. The Attorney General of Antigua and Barbuda [2013] U.K.P.C. 21

Attorney General's Reference (No. 2 of 2001) 2 A.C. 72

Oatile v. The Attorney General 2010 (1) B.L.R. 404 (HC) .

Legislation:

Section 14(3) of the Charter of Fundamental Rights and Freedoms

Constitutional law — Violation of right to trial within a reasonable time — Order for constitutional damages as compensation — Components and level of compensation — Charter of Fundamental Rights and Freedoms, Sections 14 (3) Time at which it is most appropriate for assessment to be undertaken

IN OPEN COURT
Sykes J
1

I have read the reasons advanced by David Fraser J and concurred in by Kirk Anderson J. Both judges have concluded that in this case it would be better that the assessment of damages await the disposition of the matter. I am in agreement with this particularly for the reason that in this particular case, Mr Cameron is charged with an offence that, at the very least, attracts a substantial custodial sentence if convicted. He is charged with murder. There is not sufficient material in the evidence presented to know whether manslaughter would arise for consideration. I am not saying that there is no evidence of manslaughter and neither am I saying that there is. What I am saying is the evidence presented did not enable an assessment either way. If Mr Cameron is convicted of manslaughter, there is the possibility of a non-custodial sentence, depending on all the circumstances of the case. Even then, the normal sentence for manslaughter is a term of imprisonment.

2

From this court's experience the time spent by Mr Cameron in custody so far at this stage has not exceeded the normal range of custodial sentences for murder and so any damages over and above nominal damages, at this stage, would not be awarded. It must be noted that in saying this I am mindful that this case is not a false imprisonment claim but one for violation of the reasonable time of the Charter of Fundamental Rights and Freedoms. However, the reason for giving imprisonment such significance in this case is that it is a factor to be taken into account when determining the appropriate sum to be awarded because the failure by the state to abide by the constitutional standard may have resulted in Mr Cameron spending a longer time in prison that he would have, had the matter proceeded a timely way in accordance with the constitutional standard.

3

In light of the decision of the majority regarding the remedy for Mr Cameron and having regard to the possibility that Mr Cameron may be acquitted or convicted it would not be wise, at this stage, to assess the damages to which he may be entitled. If he is acquitted, then he is on quite good ground to argue that had the matter proceeded in a timely way then his time in custody would have been greatly reduced and this may open the possibility to an award of damages that is more than nominal. On the other hand, if he is convicted of either murder or manslaughter, then it would be necessary to see whether the sentence imposed is such that his being in custody was inevitable and thus his time in custody in the context of a breach of the reasonable time requirement would not attract more than nominal damages. As Lord Dyson put in R v (WL (Congo)) v Secretary of State for the Home Department (JUSTICE intervening)) [2012] 1 AC 245 if it was inevitable that the person would have been detained even if the law was properly applied then he or she would have suffered no substantial loss or damage as result of the violation and in those circumstances, only nominal damages are to be awarded.

4

All of what has been said is to support Fraser J's point that we do not have sufficient information, at this stage, to embark upon a proper assessment of damages beyond nominal damages and therefore the more prudent course is to await the final disposition of Mr Cameron's matter.

D. Fraser J
INTRODUCTION
5

The claimant brought a constitutional claim seeking declarations that his continued arrest without his being tried and the then ongoing conduct of a Preliminary Inquiry against him into charges of murder, constituted a breach of section 14(3) of the Constitution. Section 14(3) guarantees that every person who is arrested or detained in a criminal matter shall be tried within a reasonable time. He also sought an order staying the Preliminary Inquiry and requiring his release forthwith.

6

After hearing arguments on October 8, 2017, on March 22, 2018 this Court made the following Order in the claim:

  • a) It is hereby declared that the claimant's constitutional right to be tried within a reasonable time under section 14(3) of the Constitution has been violated;

  • b) By a majority (Sykes J dissenting):

    • i) In the event the claimant has to date been unable to take up the grant of bail, the bail offer is reduced to $300,000 with one or two sureties. Claimant to report to the nearest police station to his place of abode, every Monday and Saturday between the hours of 6 a.m. and 8 p.m. Any travel document of the claimant to be surrendered to the police. Stop order in respect of the claimant to be placed at all air and sea ports;

    • ii) Pursuant to the powers granted to the Constitutional Court under section 19 of the Constitution, the claimant is awarded constitutional damages to be assessed, as compensation for the breach of his constitutional rights under section 14(3) of the Constitution. Written submissions on the quantum of damages should be filed by counsel for the claimant on or before April 13, 2018 and by counsel for the defendant in reply, on or before April 27, 2018;

    • iii) Unless there is earlier intervention by the Director of Public Prosecutions the Preliminary Inquiry must be completed and a determination made whether the claimant should be committed for trial on or before May 30, 2018, failing which, any trial of the claimant on the charges on which he is currently before the Parish Court shall be stayed;

    • iv) If the claimant is committed for trial or placed before the circuit court on a voluntary bill of indictment, his trial shall commence before the end of the Hilary Term 2019, failing which the trial of the charges shall be stayed unless the trial is delayed due to the fault of the defence. It is recognized that this order may result in the claimant's case “leapfrogging” other matters. However, in the peculiar circumstances of this case, this order is necessary to prevent further breach of the rights of the claimant.

  • c) Costs awarded to the claimant to be agreed or taxed.

7

The reasons are contained in the judgment Mervin Cameron v Attorney General [2018] JMFC FULL 1.

THE WRITTEN SUBMISSIONS ON DAMAGES
Counsel for the Claimant
8

Counsel for the claimant submitted that the award of damages should reflect the extent of the aggravation suffered by the claimant at the hands of the state. Counsel maintained that the Attorney General did not challenge the assertions in the affidavit of the claimant. Counsel relied heavily on the case of Merson v Cartwright & Anor (Bahamas) 2005 UKPC 38 (13 October 2005). There the appellant was awarded damages for assault, battery and false imprisonment ($90,000), malicious prosecution ($90,000) and breach of her constitutional rights ($100,000). On appeal, the Court of Appeal decided inter alia that the constitutional damages ‘improperly and erroneously compensated twice for the same unlawful act’. The matter was further appealed to the Judicial Committee of the Privy Council (the Board).

9

On the issue of duplication, the Board found that whilst there was some overlapping between the torts and the constitutional guarantees, there was no scope for the inference of duplication when the trial judge's judgment was read as a whole. The Board held that considering the authorities' contempt for the rule of law, it was a proper case for the award of vindicatory constitutional damages.

10

Lord Scott of Foscotte writing for the Board, cited with approval the outline of the function of constitutional damages also by the Board in the earlier case of Attorney-General of Trinidad and Tobago v Ramanoop [2005] 2 WLR 1324. He then referred to the power granted by section 14 of the Constitution of Trinidad and Tobago to award remedies for contraventions of fundamental rights and freedoms, which is similar to section 19 of the Jamaican Constitution. He noted at paragraphs 19 – 20 that:

When exercising this constitutional jurisdiction the court is concerned to uphold, or vindicate, the constitutional right which has been contravened. A declaration by the court will articulate the fact of the violation, but in most cases more will be required than words. If the person wronged has suffered damage, the court may award him compensation. The comparable common law measure of damages will often be a useful guide in assessing the amount of compensation. But this measure is no more than a guide because the award of compensation under section 14 is discretionary and moreover, the violation of the constitutional right will not be coterminous with the course of action at law.

An award of compensation will go some distance towards vindicating the infringed constitutional right. How far it goes will depend on the circumstances, but in...

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