The Minister of National Security v Everton Douglas
| Jurisdiction | Jamaica |
| Judge | Brooks P,Mcdonald-Bishop JA,Straw JA |
| Judgment Date | 21 July 2023 |
| Neutral Citation | JM 2023 CA 95 |
| Docket Number | SUPREME COURT CIVIL APPEAL NO COA2020CV00078 |
| Court | Court of Appeal (Jamaica) |
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[2023] JMCA Civ 39
THE HON Mr Justice Brooks P
THE HON Mrs Justice Mcdonald-Bishop JA
THE HON Miss Justice Straw JA
SUPREME COURT CIVIL APPEAL NO COA2020CV00078
APPLICATION NO COA2021APP00157
IN THE COURT OF APPEAL
Appeal — Jurisdiction — Notice of application to strike out appeal for want of jurisdiction — Detentions under States of Public Emergency declared pursuant to section 20 of the Constitution — Proceedings in the Supreme Court on applications for writs of habeas corpus ad subjiciendum — Appeal against findings — No appeal against the decision — Whether an appeal lies from an application for a writ of habeas corpus ad subjiciendum — Section 21A of the Judicature (Appellate Jurisdiction) Act — Whether there is an appeal from the Supreme Court from a judgment or order in civil proceedings — Section 10 of the Judicature (Appellate Jurisdiction) Act
Costs — Whether costs of proceedings on appeal to be assessed on an indemnity basis — Whether special costs certificates to issue — The Civil Procedure Rules, 2002, Rules 64.12 and 65.17(3)
Miss Lisa White and Louis Jean Hacker instructed by the Director of State Proceedings for the appellants
John Clarke for the 1 st respondent
Terrence Williams and Celine Deidrick for the 2 nd respondent
Isat Buchanan and Iqbal Cheverria for the 3 rd respondent
Miss Sasheeka Richards for the 4 th respondent
I have had the distinct pleasure of reading, in draft, the judgment of my learned sister McDonald-Bishop JA. I completely agree with her reasoning and conclusion in respect of the striking out of the notice of appeal and the costs order that she has proposed. I also respectfully wish to associate myself with her reasoning concerning the jurisdiction of a single judge of the Supreme Court, in appropriate cases, to consider constitutional challenges which arise as integral parts of habeas corpus applications.
The Government's utilisation of states of public emergency (‘SOEs’) as part of its arsenal of crime-fighting tools has become, in recent times, a controversial feature of the country's law enforcement regime. Over a nine-month period, between April 2019 and January 2020, for instance, the Governor-General had declared three SOEs in various parts of the island by virtue of the powers vested in him by section 20 of the Constitution. These SOEs have given rise to judicial challenges regarding the lawfulness of detentions of several persons within them. The proceedings before this court have emanated from several such challenges brought in the Supreme Court by four detainees who were detained by the police in different parts of the island within different SOEs on the premise that they had been concerned “in acts prejudicial to public safety and public order”. More specifically, they have been accused and/or suspected of being involved in criminal activities, which involved the commission of offences such as murder, illegal possession of firearm and ammunition, shooting and robbery with aggravation.
The relevant factual background that led to the proceedings in the Supreme Court may briefly be outlined.
By Proclamation dated 30 April 2019, the Governor-General declared a state of public emergency (‘SOE’) within the parishes of Saint James, Hanover, and Westmoreland (‘Proclamation 1’). While this SOE was still in effect, the Governor-General declared two other SOEs; this time, in parts of the parish of Saint Andrew, under a Proclamation dated 7 July 2019 (‘Proclamation 2’), and in parts of the parishes of Kingston and Saint Andrew under a Proclamation dated 26 January 2020 (‘Proclamation 3’).
The Governor-General declared the Proclamations pursuant to section 20 of the Constitution of Jamaica, which empowers him to make Proclamations declaring a period in which a public disaster or public emergency exists. During these periods, the fundamental rights and freedoms of persons in Jamaica may be curtailed, suspended, or, indeed, infringed by the state, subject to the requisite constitutional justification.
In keeping with the dictates of section 20(2)(b) of the Constitution, the preamble of the three Proclamations made in 2019 and 2020 purportedly conveyed the Governor-General's satisfaction that, among other things, “action [had] been taken or [was] 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 of the community…”.
Pursuant to section 3 of the Emergency Powers Act (‘ EPA’), the Governor-General, by order, promulgated the Emergency Powers (No 2) Regulations, 2019 (‘EPR’), by which the declared SOEs were regulated. Regulation 30(1) of the EPR gave an “authorized officer” the power to:
“arrest, without a warrant, and detain, pending enquires, any person whose behaviour is of such a nature as to give reasonable grounds for suspecting that he has—
(a) acted or is acting in a manner prejudicial to the public safety; or
(b) has committed, is committing, or is about to commit an offence against [the EPR].”
In accordance with the foregoing regulation, the police (being authorized officers) arrested and detained, without charge, Everton Douglas, Courtney Hall, Courtney Thompson and Gavin Noble (‘the respondents’) during the relevant SOEs. Gavin Noble and Courtney Hall were detained on 17 May 2019 and 22 June 2019, respectively, within the SOE declared under Proclamation 1. Courtney Thompson was detained on 22 July 2019 within the SOE declared under Proclamation 2, while Everton Douglas was detained on 26 January 2020 within the SOE declared under Proclamation 3.
Under separate detention orders, made pursuant to regulation 33 of the EPR, the Minister of National Security ordered that the respondents be detained until the end of the period of public emergency (‘the detention orders’).
Those SOEs did not come to an end until 17 August 2020, at which time, the respondents were released. By then, three of them, Courtney Hall, Courtney Thompson, and Gavin Noble had been detained without charge for in excess of one year.
Prior to their release, the respondents objected to their detention before the Emergency Powers Tribunal established in accordance with section 13(10) of the Constitution for review of their detention. However, following the review of the tribunal, they were not released.
On 9 July 2020 (also before they were released), the respondents filed separate applications for writs of habeas corpus ad subjiciendum (‘ habeas corpus’) in the Supreme Court for the court to examine and determine whether their detentions were lawful. Alternatively, the respondents applied for an order that they be released or that an expedited date be fixed in relation to any application for administrative or constitutional relief. They also asked that the court give directions pursuant to Part 57 of the Civil Procedure Rules, 2002 (‘CPR’) “as to the manner in which the claim for compensation is dealt with by the court without requiring the issue of any further process”. They sought indemnity costs.
The applications were heard by Morrison J (‘the learned judge’). On 22 July 2020, the learned judge granted the applications and issued the writs of habeas corpus, pursuant to rule 57.3 of the CPR. He also fixed a date for the respondents to be brought before the court. On 27 July 2020, the respondents were brought before the court and a hearing was conducted between 27 and 29 July 2020 concerning the lawfulness of their detentions. The applications were strongly contested by the Minister of National Security, the Commissioner of Police, and the Attorney-General of Jamaica (‘the appellants’).
The learned judge delivered his decision on 18 September 2020 declaring the detentions of the respondents unlawful. However, by then, the respondents had already been released due to the expiration of the SOEs on 17 August 2020. The reasons for the learned judge's ruling are contained in his written judgment neutrally cited as The Minister of National Security and others v Everton Douglas and others [2020] JMSC Civ 267 (‘the written judgment’).
None of the parties provided this court with a copy of the formal order of the learned judge. However, on its own initiative, the court obtained a copy of the minute of order dated 18 September 2020 relative to the proceedings on that day. The minute of order does not contain any orders made by the learned judge. What it contains are the words: “Draft written judgment delivered”. In looking at the written judgment, the only ruling or order, which could be said to have been made by the learned judge, is to be found at paras. [146] and [147], where he stated:
“[146] Based on the foregoing, I am to rule that the detention of each Petitioner is unlawful.
[147] I make the following orders pursuant to rule 57.6”
However, despite the learned judge stating in para. [147] that he made “the following orders pursuant to rule 57.6”, he did not go on to make any orders. By way of information, rule 57.6 of the CPR provides that:
“On the date fixed for the person detained to be brought before the court, the court must make such orders as are just and, in particular, may give directions as to the manner in which any claim for compensation is to be dealt with by the court without requiring the issue of any further process.”
To date, it is not known what orders or directions, pursuant to rule 57.6 of the CPR, were intended to be made by the learned judge as none of the...
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