Wednesday, 1 January 2014

Compensation for wrongful police detention & police brutality


THIS IS MY 100TH POST! :-)
HAPPY NEW YEAR, AND HERE'S TO MANY MORE YEARS OF HELPING PEOPLE!


Q: After being wrongfully arrested and subjected to police brutality, I want to sue the police. What kind of compensation can I expect if I go to court?

A: In Thaddeus Bernard and Another v Nixie Quashie (1992)Chief Justice Michael de la Bastide noted that: "There is a tendency among a minority of uniformed officials in this country to exercise their authority in an oppressive and unreasonable manner."

Any wrongful detention is a breach of one's Constitutional right as stated in s.4(a). As Lawrence LJ said in Walter v Alltools (1944), “a false imprisonment does not merely affect a man’s liberty; it also affects his reputation."

As a result, you will receive damages (compensation), which is designed to make up for pecuniary (monetary) or non-pecuniary loss, and this is an area that the courts don't take lightly.


There are two main types of damages:

1. General damages
In Commonwealth Caribbean jurisdictions, general damages are usually assessed according to the guidelines laid down by Wooding CJ in Cornilliac v St. Louis (1965):
a) the nature and extent of the injuries sustained;
b) the nature and gravity of the resulting physical disability;
c) the pain and suffering which had to be endured;
d) the loss of amenities suffered; and
e) the extent to which, consequentially, pecuniary prospects have been materially affected.

Madam Justice Pemberton in Elva Dick-Nicholas v Jayson Hernandez and Capital Insurance Limited (2006) also added future medical care to the list.


2. Exemplary/Special damages (mostly referred to as punitive damages in the USA)
As stated in British Transport Commission v. Gourley [1956], special damage “has to be specifically pleaded and proved".

Generally, exemplary damages are limited to the circumstances set out by Lord Devlin in the leading case of Rookes v Barnard [1964], but this has rarely been followed.
1.     Oppressive, arbitrary or unconstitutional actions by the servants of government.
2.     Where the defendant's conduct was 'calculated' to make a profit for himself.
3.     Where a statute expressly authorises the same.

In the UK, there are specific numerical guidelines, which were most clearly set out in Thompson v Commissioner of Police of the Metropolis [1997] CA, but even before that in the aforementioned Thaddeus, T&T courts expressed disapproval of the mathematical approach to the assessment of general damages in these types of cases, which I personally believe to be extremely fair as every case is different. 

There are many T&T cases that can be followed, but whatever the Judge chooses will obviously depend on the facts of the individual case. With that being said, however, here are a few cases that should give you an idea of what to expect:

Kedar Maharaj v AG (2009)
Where a claimant was detained/falsely imprisoned at the St Ann’s Hospital for 29 days and was awarded $280,000.00 on 2nd February, 2010.  There were several aggravating factors and an award of $50,000.00 was made in exemplary damages.

Brahim Rampersad v AG (2002)
Paray-Durity M awarded $190,000.00 on 28th April,  2010 for 14 days false imprisonment and malicious prosecution, listing several aggravating factors.

Kennty Mitchell v PC Hobbs and AG (2007)
The police arrested the claimant believing there was a warrant for his arrest, when in fact there was not. He was arrested for 2 days 7 ½ hours and Jones J on 12th June, 2008 awarded $100,000.00 for wrongful arrest and false imprisonment and a further sum of $25,000.00 in exemplary damages.

Felix Hyndman v The Attorney General (2001)
Tam J in July 2001 awarded $85,000.00 as general damages for assault, false imprisonment for 20 days and malicious prosecution, inclusive of aggravated damages and a further sum of $25,000.00 for exemplary damages. The plaintiff was arrested and charged for possession of a dangerous drug i.e. cannabis sativa.

Ted Alexis v The AG of T&T & Ors (2000)
Cocaine was planted on a plaintiff and he was imprisoned for 2 ½ months and was awarded $100,000.00 for unlawful arrest, false imprisonment and malicious prosecution, inclusive of aggravated damages and $25,000.00 as exemplary damages to mark the court’s disapproval of the officer’s conduct.

Stephen Seemungal v The AG and John Rougier The Commissioner of Prisons (2009)
Boodoosingh J gave $100,000.00 as general damages inclusive of aggravated damages and $60,000.00 as exemplary damages for unlawful detention, on an invalid warrant, of 12 days. 

8 comments:

Captain Walker said...

Excellent references and materials.

Unfortunately people on allyuh Rock cyah even get ready or speedy access to justice - so is ketchass as usual, eh?

Trinbago Rights said...

Ketchass as usual, my brother.

Unknown said...

I was detained by the police and released after being put into a holding cell. I was held for almost 54 hours pending an inquiry. As off which I have not been involved in any criminal or illegal activities. During the time spent in the holding cell I suffered great losses which includes loss of earnings not to mention emotional and mental trauma as it was the first time being put into a jail cell. Is there anything I can do about this?

Trinbago Rights said...

Of course... send me an email.

keston Kissoon said...

i was beaten and placed face down onto the road way by an off duty officer..asked for him to produce some form of ID to me and he refused after on duty officers arrived they knew who i was and i was taken to the health center for a medical evaluation after which i was handcuffed and taken to the police station and released...upon further investigation the off duty officer claimed that i was banging on a neighbor's door and shouting "i know the person who lives inside let me in" and he just happen to be in the area, after which i jumped in front an on coming vehicle and smashed the windshield.Yet still no diary entry was made of this incident not even after i had entered the station they took a statement from someone claiming i did jump in front his vehicle..but i was not asked to give a statement of any sort..

please give me some advice on further actions

Trinbago Rights said...

Visit a Lawyer

xman 13 said...

dear sir a 7 weeks ago a case i had was dismissed,i was arrested for littering ,(a cigarette butt )of which i was totally innocent btw,,,(promptly dragged off to the nearest percent ,and to be handcuffed from 5 o'clock aftenoon to around 12 30 the following morning ,,,then carried off to a next major police stations some miles away at the back of a 5 x4 space in the back of a police vehicle ...then put in a cell for the nxt two nights ,,,,,i eventually got the case dissmissed after the arresting officer simply couldn't be bothered to show up a couple of times,,,and me all this time having to be present for a show in vienna austria (artist) and have to postpone my flight and christmas holidays with my fiancé and my old 87 year old sickly fatherinlaw,,,really sucks .though ,,the attitude AND SPITEFULNESS OF THE OFFICER IN CHARGE realllllllysucksssssss,,,,I'm not leaving this so ,,and I'm already planning a full blown exhibition this year end in europe )highlightingg the injustice sytem )in some precincts at least ,,in this island ,,,let me know whats the deal pls sir ,powers

Trinbago Rights said...

Send me an email.