ALFRED HARDING v THE SUPERINTENDENT OF PRISONS et al

SAINT LUCIA IN THE HIGH COURT OF JUSTICE CIVIL SUIT NO.535 OF 2000 BETWEEN: ALFRED HARDING Applicant and (1) THE SUPERINTENDENT OF PRISONS (2) THE ATTORNEY GENERAL OF SAINT LUCIA Respondents Appearances: Mr. Martinus Jean Francois for the Applicant. Ms. Cheryl Mathurin for the Respondents. --------------------------------------------------- 2000: July 13 ,14 July 31 -------------------------------------------------------------- JUDGMENT

[1]HARIPRASHAD-CHARLES J.: On 4 th day of July 2000, the Applicant issued a Notice of Motion which was subsequently amended pursuant to Section 5 o f the Saint Lucia Constitution Order 1978 alleging that certain of the fundamental rights and f reedom e nshrined, g uaranteed an d s ecured i n t he s aid C onstitution has been, is being or likely to be contravened in relation to him. The redress sought in the Amended Notice of Motion was for the following reliefs: (i) A Declaration that the mechanical restraint with chains secured with two padlocks tied to the ankles of the Applicant on 31st day of August 1999 for a continuous period of ten (10) months and fifteen (15) days until 15th day of J une 20 00 w ithout any r emoval amounted t o t orture or i nhuman or degrading punishment contrary to Sections 3 and 5 of the Constitution of Saint Lucia. (ii) A D eclaration that t he r emoval of t he s aid m echanical r estraint an d i ts replacement whenever the Applicant visits the bathroom or whenever the Applicant is visited by his legal adviser amounted to torture or inhuman or degrading punishment contrary to Sections 3 and 5 of the Constitution of Saint Lucia. day (iii) A Declaration that the cellular confinement of the Applicant since 31st of A ugust 19 99 and c ontinuing t o the present t ime w ithout br eak an d ordered by the Superintendent of Prisons amounted to torture or inhuman or degrading punishment contrary to Sections 3 and 5 of the Constitution of Saint Lucia. day of (iv) A Declaration that the placing of the Applicant in a wet cell on 31st August 1999 wherein he was required to sleep on the said wet floor on a piece of blanket for two (2) months when the Respondents knew or ought to hav e k nown t hat t he A pplicant i s as thmatic am ounted t o t orture or inhuman or de grading p unishment c ontrary t o S ection 5 of t he Constitution of Saint Lucia. (v) A Declaration that the denial of visitation rights of the Applicant amounted to torture or inhuman or degrading punishment contrary to Section 5 of the Constitution of Saint Lucia. (vi) A De claration that t he m atters c omplained of by t he Applicant ar e a nd were ar bitrary, o ppressive and unconstitutional and t he A pplicant i s entitled to compensatory, aggravated, exemplary and punitive damages of $500,000.00 and the Costs of this application. (vii) Such orders, writs or directions as may be necessary or appropriate to secure redress by the Applicant for contravention by the Respondents or either of them of the Fundamental Rights and Freedoms guaranteed to him by Section 5 of the Constitution of Saint Lucia.

[2]Prior to the hearing of the Constitutional Motion, Counsel for the Respondents, Ms Cheryl M athurin c hallenged t he j urisdiction of t he C ourt t o ent ertain t hese proceedings. T he gist of her ar gument w as that t here ar e o ther appropriate remedies av ailable t o the A pplicant and t herefore, he s hould p ursue those remedies for alleged breach of the Prison Rules. In this context, she referred to Section 16 of the Constitution and in particular, the proviso. Mr. Martinus Francois, Counsel for the Applicant argued that the Applicant has locus standi before the Court and ev en if there are other remedies available to the Applicant, the Court has a discretionary power in deciding whether to entertain these proceedings and should be mindful not to discourage citizens or public spirited persons, who have locus standi from approaching the Court on matters of constitutional importance. I was satisfied that the Court has jurisdiction to entertain the Constitutional Motion and ordered that arguments on the matter be proceeded with.

THE BACKGROUND FACTS

[3]The Applicant, a citizen of Barbados came to Saint Lucia some six months prior to his arrest by the Police on 26th day of August 1999. From the evidence adduced, the Applicant was in a store in Castries when two police officers approached him. One of t he l awmen s poke t o t he A pplicant a nd s imultaneously, t he A pplicant pulled out a firearm and pointed it in the direction of the lawmen who took cover as the Applicant fled out of the store onto Cadet Street. The Police continued their pursuit of him and the Applicant attempted his escape by climbing and jumping onto t he r oofs of s everal buildings i n w hat m ight b e des cribed as a “ tarzanic” chase in the City of Castries in broad daylight. He was subsequently arrested and charged with the possession of unlicensed firearm and possession of nine live rounds of ammunition without a permit. On 27th day of August 1999, he appeared before a Magistrate and was sentenced to Her Majesty’s Prisons for an extended term of imprisonment.

[4]The chronology of events that led to the institution of the Motion commenced when day of A ugust 1999. the A pplicant was taken t o Her Majesty’s P risons on 31 st Upon hi s ar rival t here, t he A pplicant w as pl aced i n m echanical r estraint w ith chains tied to his ankles secured by two padlocks and placed in the maximum security s ection of t he pr ison w hich i s al so us ed t o ac commodate d eath r ow inmates as well as inmates who are separated from the general prison population or inmates who are considered to be at security risks. It was also alleged by the Applicant that not only was he kept shackled in solitary confinement but that the said c ell w as f looded i n a bout t wo i nches of w ater and t hat h e s uffered t wo asthmatic attacks as a result of having to sleep on the wet concrete. There is the further allegation that he was denied his entitlement to one hour of exercise daily and any sunlight and also visitation rights contrary to the Prison Rules 1964.

[5]I pa use here t o obs erve t hat o n t he hearing o f this M otion, t he Applicant abandoned the relief previously sought under Section 13 of the Constitution and proceeded solely with the relief under Section 5 of the said Constitution.

THE ISSUES

[6]The following are the principal legal issues for determination in this Motion:- (1) Whether the Superintendent of Prisons acted within the law or not and (2) Whether the treatment meted out by the Applicant amounted to torture, inhuman and degrading punishment or other treatment as envisaged by Section 5 of the Saint Lucia Constitution Order 1978? (1) WHETHER THE SUPERINTENDENT OF PRISONS ACTED WITHIN THE LAW?

[7]Arising out of this legal issue is a number of sub-issues that need consideration namely: (a) Whether the alleged mechanical restraints placed on the Applicant for ten day of June 2000 without any [10] months and fifteen [15] days, until 15th removal is contrary to the Prison Rules? (b) Whether the temporary shackling of the Applicant whenever he visits the bathroom or whenever he is visited by his legal adviser is contrary to the Prison Rules? day of (c) Whether the alleged cellular confinement of the Applicant since 31st August 1999 and continuing to the present time without break is contrary to the Prison Rules? st day of (d) Whether the alleged placing of the Applicant in a wet cell on 3 1 August 1999 for two months is contrary to the Prison Rules and (e) Whether t he al leged deni al of v isitation r ights i s c ontrary t o t he P rison Rules? (a) MECHANICAL RESTRAINTS

[8]Learned Counsel for the Applicant submitted that from the moment the Applicant was taken to Her Majesty’s Prisons on 31st day of August 1999, he was placed in mechanical restraints with chains tied to his ankles and secured with chains and two l arge C hubb padlocks. H e al so s tated t hat t he A pplicant had be en continuously shackled since his arrival at the Prisons twenty-four hours a day. It is alleged t hat the A pplicant ha d t o b athe a nd s leep i n t he s hackles. C ounsel contended that the said mechanical restraints were only removed on 1 5th day of June 2000; following his Notice of Intended action against the Respondents. The Applicant was therefore in shackles for a period of ten [10] months and fifteen [15] days. C ounsel f urther s ubmitted t hat the f act t hat t he A pplicant w as s hackled continuously greatly i nhibited hi s f reedom o f m ovement and resulted i n s evere injuries to his ankles and feet.

[9]The Respondents did not deny any of the allegations made by the Applicant in respect of the continuous use of mechanical restraints on t he Applicant. In fact, both Respondents admitted that the mechanical restraints were removed on 15 th day of June 2000 pursuant to the Notice of Intended Action filed by the Applicant on 2 nd day of June 2000. What is expressly denied were t he injuries allegedly suffered by t he A pplicant as a r esult of hi m bei ng c ontinuously s hackled f or a period in excess of ten months. In fact, the Superintendent of Prisons deposed in his af fidavit t hat he has no k nowledge o f a nd has not s een i njuries t o t he Applicant’s ankles and feet. His evidence is somewhat supported by the evidence of the two doctors attached t o t he P risons. Dr. G erard S altibus, in his affidavit day deposed to on 11th day of July 2000 averred that he saw the Applicant on 27th of June 2000 and he did not notice any injuries to his legs as a r esult of them being i n mechanical r estraints. D r. K enneth Eric Lou isy w ho w as t he m edical officer attached to the P risons during t he period August 1999 to January 2000 made a s imilar obs ervation. I am m ore i nclined t o believe t he R espondents’ evidence that there were no visible injuries on t he Applicant. However, I opined that the shackling of the Applicant for such a lengthy period must have traumatized him and he must have suffered psychologically.

[10]Counsel for the Applicant cited Sections 57 and 166 of the Prison Rules and in particular, Section 57 S ubsection (4). Section 57 r eads as follows: Mechanical Restraints. “(1) Mechanical restraints shall not be used as a p unishment or for any purpose other than the safe custody during removal, except on medical grounds by direction of the Medical Officer, or in the circumstances and un der t he c onditions s tated i n the f ollowing paragraphs of this rule. (2) When i t ap pears t o t he S uperintendent that i t i s ne cessary t o place a prisoner under mechanical restraint in order to prevent his injuring himself or others, or damaging pr operty, or c reating a disturbance, t he S uperintendent m ay or der hi m t o be pl aced under mechanical restraint, and not ice thereof shall forthwith be given to the Visiting Justice and to the Medical Officer. (3) The Medical O fficer on r eceipt of t he af oresaid n otice s hall forthwith i nform t he S uperintendent w hether h e c oncurs i n t he order, and i f on m edical gr ounds he d oes no t c oncur t he Superintendent s hall ac t i n ac cordance with any recommendations which he makes. (4) No prisoner shall be kept under mechanical restraint longer than is necessary, or for a longer period than twenty-four hours unless an order in writing from a Justice of the Peace who is a member of the Board of Visiting Justices is given, specifying the cause thereof and the time during which the prisoner is to be so kept, which order shall be preserved by the Superintendent as his warrant. [My emphasis] Section 166 of the Prison Rules expressly states as follows: Restraint. “(1) If the Superintendent represents to a member of the Board that he or the Medical Officer has, in a case of urgent necessity, put a prisoner under mechanical restraint, and that it is necessary that the prisoner be s o k ept f or m ore t han t wenty-four h ours, such member may authorize the continuance of that restraint by order in w riting, w hich s hall s pecify t he c ause thereof and t he t ime during which the prisoner is to be kept.”

[11]Applying the law as set out above to the facts of this case, I come to the following conclusions: (a) Shackling is permitted under Rule 57 and Rule 166 of the Prison Rules but in very limited circumstances. (b) Placing a prisoner in mechanical restraints shall not be used as a method of punishment under no circumstances. (c) It shall only be used to move a prisoner from one place to another or, in a case of urgent necessity to temporarily restrain a violent prisoner, and in any event, for not more than 24 hours without the Order of a Member of the Board of Visiting Justices. (d) Nowhere i n t he P rison R ules i s i t ex pressed t hat a pr isoner w ho i s dangerous or potentially dangerous could b e s hackled f or an ex tended period.

[12]In determining the issue whether the shackling of the Applicant for a continuous period of 1 0 m onths a nd 15 d ays i s c ontrary t o t he P rison R ules, the case of Reynolds Peters v Bernard Marksman (Superintendent of Prisons) and the Attorney-General, Civil Suit No. 246 of 1997 [unreported] emanating from Saint Vincent & the Grenadines is illustrative of this principle. In this case, the Court had to consider, inter alia, the issue of shackling of a prisoner for an extended period of approximately six months. At page 14 of the said judgment, Mitchell J [Ag.] had this to say: “ I am satisfied that in the circumstances of this case the shackling of the prisoner for an extended period, including while he slept and ate, without the Order of the Justices, was a brutal and severe assault on the person and psyche of Mr. Peters. It was designed to brutalize and break him and to r educe him t o c ompliancy by s tripping him of al l di gnity a nd s elf- respect. It amounted to a form of torture.”

[13]I gratefully adopt the words of Mitchell J. [Ag.].

[14]I therefore hold that the placing of mechanical restraints with chains and two large Chubb padlocks tied to the ankles and feet of the Applicant for twenty-four [24] hours a day for a period of ten [10] months and fifteen

[15]days, including while he bathed, ate and slept is a brutal and severe assault on the person and psyche of A lfred Harding. U ndoubtedly, i t w as i n breach of t he P rison Rules a nd t hus unlawful. S uch c onduct by t he S uperintendent of Prisons i n t he y ear 20 00 i s reminiscent of the African Slave Trade which I thought had long been abolished. (b) OCCASIONAL MECHANICAL RESTRAINTS [15] It is not disputed that the Applicant is still being placed in mechanical restraints whenever he visits the bathroom or whenever he is taken to the front part of the prison to consult with his legal adviser. In fact, at paragraph 6 of the affidavit of the Second-named Respondent, the Attorney General, he deposed as follows: “That I am informed and verily believe that in light of the circumstances under w hich t he A pplicant w as appr ehended a nd the r ecord of hi s conviction f rom B arbados, t hat i t i s nec essary t hat he be r estrained whenever he is outside of the maximum-security area of the prison in the public interest as referred to in Section 1 of the Constitution.”

[16]Learned Counsel for the Applicant emphasized that the occasional shackling of the Applicant is a continuing violation of his rights. Mr. Francois urged the Court to liberate the Applicant since he is the only prisoner who is placed in shackles. It is the submission of Counsel that there is not one strand of evidence to demonstrate that there has been any infraction of the Prison Rules by the Applicant of that he is refractory.

[17]The gi st of t he R espondents’ ar gument i s t hat t he A pplicant i s a s upposedly dangerous Criminal and as a consequence, the occasional shackling is justified in the pu blic i nterest. C ounsel as serted t hat S ection 5 7 and S ection 16 6 of t he Prison Rules make provision for the Superintendent of Prisons to use mechanical restraints on a pr isoner as a means of protection . She asserted that because of the Applicant’s potential threat to prison officials, the Superintendent was justified in shackling him.

[18]I hav e n o di fficulty i n accepting M s. M athurin’s ar gument t hat s hackling i s permissible but i n very limited circumstances. In f act, th is i s e xactly w hat t he Prison Rules expressly states. However, while the Superintendent may order a prisoner to be placed under mechanical restraints in order to prevent him injuring himself or others, or damaging property, or creating a disturbance, he must notify forthwith a Visiting Justice and the Medical Officer. In the instant case, no such notification was done. It is accepted that the Superintendent has a discretionary to shackle a pr isoner in order to prevent him injuring himself or others, or damaging property, or creating a disturbance. But, t hese i ngredients m ust exist in order to place the prisoner in mechanical restraints. I find that none of the requirements to justify the occasional shackling of the Applicant were present. I therefore h old t hat t he pl acing of s uch m echanical r estraints on t he Applicant whenever he v isits the bathroom or whenever his legal adviser visits him is also contrary to the Prison Rules and unlawful. (c) CELLULAR CONFINEMENT

[19]On this issue, Counsel for the Applicant submitted that Sections 58 and 166 of the Prison Rules have been violated when the Applicant was placed in an empty cell in t he “ condemned” S ection of t he P risons. C ounsel em phasized t hat t he “condemned” S ection of t he P risons i s r eserved f or pr isoners w ho hav e be en condemned to death for a capital punishment and that the Applicant has not been convicted of such offence. He further contended that nowhere in the affidavits of the Respondents is there any allegation that the Applicant is a refractory or violent person to warrant such cruel and degrading treatment. Counsel asserted that not only is he placed in cellular confinement cell but that the Applicant is denied any sunlight or exercise contrary to the Prison Rules.

[20]Counsel for the Respondents contended that the word “condemned” as asserted by the Applicant is a mere pseudonym. I do not agree with Counsel. Even the Superintendent of P risons, at par agraph 4 of his af fidavit averred t hat t he Applicant has always been housed in the maximum- security section of the prison which i s al so us ed to house de ath r ow i nmates as well as i nmates w ho ar e separated from the general population for their own safety, or inmates who are considered to be security risks. In my considered opinion, “condemned”, “death row” and “high security” cells are one and the same thing.

[21]It i s not di sputed t hat t he A pplicant w as a nd i s still bei ng k ept i n s olitary confinement i n t hat s ection of t he prison. In their respective af fidavits, bot h Respondents de posed t hat gi ven t he c ircumstances under w hich t he A pplicant was appr ehended, hi s c urrent c onvictions an d hi s record of c onviction f rom Barbados and Canada as well as an o utstanding warrant of arrest for attempted murder in Barbados, it is necessary that he be housed in the maximum security area of the prison. The Superintendent of Prisons deposed that currently Roger Hilaire is secured in this area as he has escaped on several occasions and also injured an other i nmate w ho w as c leaning hi s c ell. However, t here i s no s uch evidence about the Applicant. It is manifestly clear that this Applicant has never escaped from Her Majesty’s Prisons and or he had been violent or rebellious or unmanageable to fellow inmates as well as prison officials.

[22]Learned Counsel for the Respondents submitted that the Applicant is a dangerous Criminal; the likes of whom the peaceful and tranquil society of Saint Lucia had never seen. “It was indeed a spectacle,” dramatized Counsel” to see the manner in which the Applicant was apprehended.” Counsel urged the Court to find that the cellular confinement of the Applicant is not a punishment. However, she could not give a t angible reason for such confinement except to emphasize the impending danger that the Applicant poses to the public and to the law-enforcement officers. I pose a rhetorical question: if the Applicant is not being punished, why is he still in cellular confinement?

[23]The question of “ cellular or solitary confinement” is dealt with by Sections 58 and 166 of the Prison Rules 1964 and as interpreted by the Courts. Section 58 of the said Rules reads thus: Temporary confinement. “The S uperintendent may order any refractory or violent prisoner t o be temporarily confined in a special cell certified for the purpose in the same manner as cells to which rule 9 applies, but no prisoner shall be confined in such a cell as a punishment or after he has ceased to be refractory or violent.” Section 166(2) states as follows: “If the Superintendent represents to a member of the Board that he has arranged f or a prisoner t o w ork t emporarily in h is c ell a nd n ot i n association, s uch m ember m ay aut horize t he ar rangement by or der i n writing, and such order may be renewed from month to month.”

[24]On t he question of c onfinement t o a c ell, t his i ssue w as c onsidered by t he Supreme Court of Zimbabwe in the case of Conjwao v Minister of Justice [1992] (2) SA 56. In that case the Applicant and his two co-accused had been convicted of m urder i n attempting t o bl ow up an A NC B uilding i n Z imbabwe and w ere sentenced t o dea th. S ubsequently, an other pe rson was f ound gui lty of hav ing conspired w ith ot hers t o f orcibly ef fect t he r elease f rom l awful c ustody of t he Applicant an d hi s t wo c o-accused. Strict s ecurity m easures w ere i mplemented. The A pplicant’s access t o t he exercise y ard w as r educed t o half an hour on weekdays only. During this time, he had t o shower, attend to laundry, wash his eating ut ensils a nd s weep out hi s ow n c ell. T he Supreme C ourt of Z imbabwe unanimously f ound that s uch c onfinement w as plainly of fensive t o not ions o f humanity and decency and transgressed the boundaries of civilized standards and involved the infliction of unnecessary suffering.

[25]Solitary confinement of prisoners is not in itself a breach of the Prison Rules; it is permissible f or r easons of s ecurity or di scipline or to pr otect t he s egregated prisoner f rom ot her pr isoners and v ice v ersa. I t m ay al so be j ustified i n t he interests of t he administration of justice, e.g. t o pr event collusion bet ween prisoners in respect of pending proceedings. In each case, “regard must be had to the surrounding circumstances, including the particular conditions, the stringency of the measure, its duration, the objective pursued and its effects on the persons concerned”: See: Ensslin, Baader and Raspe v Federal Republic of Germany (1979) 14 DR E Com HR 64 at page 109.

[26]Having ascertained the relevant facts in the instant matter and applying the law, I find that the cellular confinement of the Applicant is not permitted as a punishment. It is permissible only with the authorization of the Board of Visiting Justices and may last only for a month unless renewed by the Visiting Justices. Even if there were good reason to confine a prisoner to a cell, he must be allowed reasonable access t o exercise and s unlight. I h old t hat t he c ellular c onfinement of t he Applicant for an extended period of time was a punishment without a lawful reason and without the sanction of the Visiting Justices. This, in my opinion is virtually to treat hi m as no n-human a nd i s r epugnant t o the v alues an d a ttitudes of any civilized society. (d) ALLEGATION OF WET CELL AND ASTHMA ATTACKS

[27]Counsel for the Applicant urged the Court to accept the further allegation of the Applicant that not only was he kept shackled in solitary confinement in a single cell but that the said cell was flooded in about two inches of water. Counsel stated that the Applicant immediately reported the condition of the cell to Sergeant Jules who was the Officer-in-Charge. According to the Applicant, he informed the Officer that he was asthmatic and could not sleep on the wet concrete whereupon Sergeant Jules told him that when he lies down, his bodily heat would dry up the water.

[28]Counsel submitted that the Applicant complained to the visiting prison doctor, Dr. Louisy about sleeping on the cold concrete floor especially since he is asthmatic. As a r esult of his complaint to the doctor, he was given a v entolin inhaler. The Applicant’s testimony is corroborated by the evidence of Dr. Louisy to the extent that the doctor averred that he had cause to prescribe a ventolin inhaler to the Applicant on two occasions for an asthmatic complaint.

[29]The Applicant alleged in his affidavit sworn to on 4th day of July 2000 that after numerous complaints, he was provided with a wooden bunk in or about November 1999; some two months after sleeping on a cold floor. He alleged that this type of treatment amounted to torture or inhuman or degrading punishment pursuant to Section 5 of the Constitution.

[30]On the other hand, the First-named Respondent, the Superintendent alleged that to his knowledge, the Applicant’s cell has never been flooded and that the majority of inmates at Her Majesty’s Prisons sleep on t he floor as the prison is unable to provide for the ever- increasing number of inmates.

[31]It is manifest from the evidence that the Applicant was asthmatic before he was confined t o H er M ajesty’s P risons. H owever, I do not b elieve t he A pplicant’s evidence t hat hi s c ell w as f looded w ith t wo i nches of w ater. I ask m yself t he question: why would the Superintendent of Prisons be so cruel to the Applicant? After all, it is my considered opinion that the Superintendent of Prisons shackled and confined the Applicant to the single cell because he was faced with a troubling situation of having to deal with escaped prisoners who are supposedly dangerous. He was not going to let this prisoner escape. So, he decided to take precautionary measures from the outset. Suffice it to say he di d so in violation of the Prison Rules.

[32]As I have remarked in the preceding paragraph, I do not believe that the Applicant was placed in a cell flooded with two inches of water. I believe that the concrete floor must have been cold. And after complaints, the Superintendent of Prisons made am ends by pr oviding A pplicant w ith a wooden bunk s hortly t hereafter. However, I was somewhat disheartened when the affidavit of the Superintendent of Prisons was amended to reflect an additional paragraph to read: 15. “That the majority of inmates at Her Majesty’s Prisons sleep on t he floor as t he prison i s u nable t o pr ovide f or t he ev er-increasing n umber o f inmates.”

[33]I opined that the Superintendent of Prisons would have done more justice to the case had he r emained silent. I am positive that he i s aware of Section 10 of the Prison Rules In this context, I refer to Mitchell J. in Reynolds Peters v Bernard Marksman, Superintendent of Prisons et al [supra]. A t page 14 of t he s aid Judgment, His Lordship said: “But the time will come when the very overcrowding in t he present old nineteenth century prison will be the basis for a constitutional challenge to a term of imprisonment in such a facility as being inhuman and degrading, which challenge will at the least cause serious embarrassment.” (e) VISITATION RIGHTS

[34]Sections 84 and 85 of the Prison Rules are explicit on Letters and Visits.

[35]Counsel for the Applicant submitted that the Applicant was denied visitation rights contrary t o t he Prison R ules. T he A pplicant al leged t hat t here has be en two occasions when his mother and hi s sister came from Barbados to visit him and they were refused permission by the prison authorities. In addition, the Applicant alleged that he is not permitted to communicate with other prisoners.

[36]By an am ended af fidavit, the F irst-named R espondent s tated t hat h e h ad no knowledge of the allegations made by the Applicant but there was one request over t he telephone f rom one S haron W ade f rom N ew Y ork w ho s ought a guarantee of a v isit by telephone and she w as r efused. T here i s doc umentary evidence from the Respondents to support their allegation that the Applicant does receive letters.

[37]I s ee no j ustifiable r eason w hy t he R espondents w ill depr ive t he A pplicant t he visitation rights as alleged. I therefore do not believe the Applicant.

[38]Counsel f or t he A pplicant s ubmitted t hat a f urther ques tion w hich has b een considered in recent cases is whether a prisoner who has been lawfully committed to prison and whose term of imprisonment has not expired may in circumstances maintain an action for false imprisonment, arising out of the conditions in which he was detained. In this regard, Counsel cited a number of authorities to substantiate his poi nt i ncluding t he c ases o f Middleweek v Chief Constable of the Merseyside Police [1990] 3 All ER 662 and Weldon v Home Office [1990] 3 All ER 672 where it was held that an action could be m aintained where conditions were or became intolerable. Counsel went into a comprehensive analysis of these cases comparing the decision of the House of Lords with the Constitution of Saint Lucia and s ubmitted that t he C onstitution of S aint L ucia f avours t he C ourt of Appeal d ecision. Learned Counsel for t he R espondents v ehemently c hallenged the C ourt of A ppeal dec ision an d ar gued that the H ouse o f Lor ds decision i s applicable t o S aint Luc ia. W hile I am i n agr eement w ith t he s ubmissions o f Learned Counsel for the Applicant on this point, I am of the firm view that these cases are merely of academic interest based on my findings [supra].

[39]Learned Counsel for the Applicant also alluded to the legitimate expectation of the Applicant in that he will be subjected to the Rules of the Prison. I do not disagree with Learned Counsel on this either but I am reluctant to venture into somewhat unvirginal territory when it is unnecessary to do so for the purpose of deciding the case. (b) SECTION 5 OF THE SAINT LUCIA CONSTITUTION ORDER 1978

[40]The s econd i ssue for c onsideration i s w hether t he treatment m eted out by t he Applicant am ounted t o t orture, i nhuman a nd d egrading p unishment or ot her treatment as envisaged by Section 5 of the Saint Lucia Constitution Order 1978?

[41]Section 5 of the Constitution reads: “No per son s hall be s ubjected t o t orture or t o i nhuman or degr ading punishment or other treatment.”

[42]Counsel for the Applicant submitted that the locus classicus on the meaning of torture, i nhuman and degrading p unishment or ot her t reatment i s t he c ase of Ireland v United Kingdom European Court HR, Series A, Vol. 25 Judgment of 18 January 1978 quoted at page 269 in the Treatise, Civil Liberties: Cases and Materials. In this case, twelve persons arrested on 9 August 1971 and two persons arrested in October 1971 were singled out and taken to one or more interrogation centres. There, between 11 to 17 August and 11 to 18 October respectively, they were submitted to a form of ‘interrogation in depth’ which involved the combined application of five particular techniques. In the Commission’s estimation, the five techniques constituted a practice not only of inhuman and degrading treatment but also of torture. T he five t echniques w ere applied i n c ombination, w ith premeditation and for hours at a stretch; they caused, if not actual bodily injury, at least intense physical and mental suffering to the persons subjected thereto and also led to acute psychiatric disturbances during interrogation. They accordingly fell into the category of inhuman treatment within the meaning of Article 3. The techniques were also degrading since they were such as to arouse in their victims feelings of fear, anguish and inferiority capable of humiliating and debasing them and possibly breaking their physical or moral resistance.

[43]Counsel f or t he A pplicant, r eferring t o R esolution 3 452 ( xxx) adopt ed by t he General Assembly of the United Nations on 9 December 1975, which declares: “Torture” constitutes an aggravated and deliberate form of cruel, inhuman and degrading treatment or punishment.”

[44]Mr. F rancois, i n f ortifying this l imb of his ar guments r eferred to t he c ase of Reynolds Peters v Superintendent of Prisons et al [supra] and submitted that the Reynolds Peters’ case bears close affinity to the instant matter. The facts are as f ollows: T he A pplicant, R eynolds P eters w as s erving a t erm of 12 y ears imprisonment for manslaughter, imposed on 12th day of June 1988 at the State Prison for men in Kingstown, St. Vincent. On 26th day of August 1996 he is alleged to have assaulted Senior Prison Officer Linus Goodluck hitting him at the back of his he ad w ith a 3 f oot l ength of 2” x 2” w ood, r endering hi m u nconscious f or several ho urs. E ven w hile O fficer G oodluck w as un conscious and w as being dragged from the Prison, Mr. Peters pursued him with a length of wood attempting to strike him again. There is no s uggestion that he succeeded in striking Officer Goodluck more than once. Nor is there any indication what sparked the assault. He was charged by the police for causing actual bodily harm.

[45]On 26 th day of A ugust; t hat i s t he day of t he i ncident, t he A pplicant w as additionally charged as a result of the incident with various contraventions of the Prison R ules. T he c harges w ere hear d by t he S uperintendent of P risons. T he Applicant was found guilty of all the charges. As a punishment, he was ordered to receive 10 strokes with the Cat-o-nine tails and to cellular confinement. He was also kept shackled in solitary confinement in a single cell. He had to sleep with the foot-leggings a nd handcuffs. T he s hackles w ere s ometimes r emoved f or s hort periods of time, for example, when he showered. Mr. P eters as a r esult of his continuously being shackled had s uffered abrasions and contusions to his lower legs. He was shackled for a period of approximately 6 months. The shackles were day of January 1997, after the intervention by Mr. Peters’ finally removed on 10 th Solicitor to the Prime Minister in his capacity as Minister of Justice.

[46]Mitchell J . i n hi s r ather c omprehensive j udgment f ound t hat t he ac tions of t he Superintendent of Prisons were in breach of the Prison Rules. On the question of shackling, h e f ound t hat i t am ounted t o a f orm of t orture. H e al so f ound t hat solitary confinement was a form of torture, repugnant to the values and attitudes of Vincentian society.

[47]Counsel for the Respondents, Ms. Mathurin referring to the Peters’ case, urged the Court to find that it was distinguishable from the instant matter. According to her, the Superintendent of Prisons, Mr. Pierre had no t applied the treatment as applied by t he Superintendent of P risons i n t he Peters’ case. S he s tressed throughout her a ddress t hat t here w as no male fides on t he p art of t he Superintendent of Prisons and she urged the Court to consider the motives by which the shackles were placed on the Applicant and to find that the placing of mechanical r estraints on t he A pplicant di d no t am ount t o t orture, i nhuman o r degrading punishment or treatment.

[48]Counsel s ubmitted that w hat am ounts t o ‘ inhuman or degr ading t reatment or punishment’ depends on al l of the circumstances of the case. She asserted that cellular confinement and occasional shackling with the exception of the permanent shackling w ere not done with t he i ntention o f br eaking hi s phy sical or m oral resistance, f eelings of f ear, an guish an d i nferiority c apable o f h umiliating and debasing the Applicant.

[49]In t his c ontext, C ounsel c ited t he T rinidadian c ase of Thomas v Baptiste (Commissioner of Prisons), Privy Council Appeal No. 60 of 1998. Lord Millett at page 9 of the Judgment in dealing with Prison conditions said: “The appel lants w ere detained i n c ramped a nd f oul s melling c ells an d were deprived of exercise and access to the open air for long periods of time. W hen t hey w ere allowed t o ex ercise i n the f resh ai r t hey w ere handcuffed. The conditions in which they were kept were in breach of the Prison Rules and thus unlawful. It does not follow that they amounted to cruel an d unusual treatment. I n a c areful j udgment de l a B astide C .J. found that they did not. The ex pression i s a c ompendious one w hich d oes not gai n by b eing broken up into its component parts. In their Lordships’ view, the question for consideration is whether the conditions in which the appellants were kept i nvolved s o m uch p ain and s uffering or s uch depr ivation o f t he elementary necessities of life that they amounted to treatment which went beyond the harsh and could properly be described as cruel and unusual. Prison conditions in third world countries often fall lamentably short of the minimum which would be a cceptable in more affluent countries. It would not serve the cause of human rights to set such demanding standards that breaches were commonplace. Whether or not the conditions in which the appellants were kept amounted to cruel and unusual treatment is a value judgment in which it is necessary to take account of local conditions both in and outside prison. Their Lordships do not wish to seem to minimize the appalling conditions which the appellants endured. As the Court of Appeal emphasized, t hey w ere an d ar e c ompletely unac ceptable i n a c ivilized society. B ut t heir Lor dships w ould be s low t o depar t f rom t he c areful assessment of the Court of Appeal that they did not amount to cruel and unusual t reatment…It w ould be ot herwise i f t he c ondemned m an w ere kept in solitary confinement or shackled or flogged or tortured. One would then say: “ enough is enough”. “ CONCLUSIONS

[50]Having considered the submissions of both Counsel, and applying the clear and unambiguous provisions of the Prison Rules and the legal principles in respect to torture, inhuman or degrading punishment or treatment, I come to the following conclusions: (a) Shackling of t he A pplicant f or an ex tended per iod o f t en m onths and fifteen day s, i ncluding w hile he s lept a nd at e, w ithout t he or der of t he Visiting J ustices w as brutal and a s evere assault on t he per son an d psyche of t he Applicant. M ercifully, it was only t he i ntervention of hi s Counsel that led to its permanent removal of the shackles. This is a clear breach of the Prison Rules. It amounted to a form of torture. (b) The oc casional s hackling of t he A pplicant w henever he v isits t he bathroom or he is visited by his legal adviser is also a v iolation of the Prison Rules. Shackling is permissible but in very limited circumstances. While t he S uperintendent m ay or der a pr isoner t o be pl aced under mechanical restraints in order to prevent him injuring himself or others, or damaging property, or creating a disturbance, he must notify forthwith a Visiting Justice and the Medical Officer. If the latter is not done, then the shackling of the prisoner becomes unlawful. (c) The c ellular or s olitary c onfinement of t he A pplicant t o a c ell f or t en months and fifteen days is also a breach of the Prison Rules and is a form of torture or inhuman or degrading punishment. Cellular confinement is permissible only with the authorization of t he Board of V isiting Justices and may last only for a m onth unless renewed by the Visiting Justices. Even if there were good reason to confine a prisoner to a cell, he must be allowed reasonable access to exercise and sunlight. (d) On t he al legation t hat t he A pplicant w as pl aced i n a w et c ell w ith two inches of water, this is a f actual issue and I do not believe him. I have already given my reasons for arriving at this conclusion. (e) Based on t he ev idence, I do no t bel ieve t he al legation m ade by t he Applicant that he was denied visitation rights. I further conclude that even if he w as and it was contrary to the Prison Rules, it could not amount to torture, i nhuman a nd degrading punishment or t reatment t o j ustify a contravention of section 5 of the Constitution. See: Thomas v Baptiste [supra] and specifically page 9 of the Judgment of Lord Millett.

THE AWARD

[51]I therefore award the Applicant the following reliefs: (a) A D eclaration that t he m echanical r estraint w ith c hains s ecured w ith two padlocks tied to the ankles of the Applicant on 31st day of August 1999 for a continuous period of ten (10) months and f ifteen (15) days until 15 th day of June 2000 without any removal amounted to torture or inhuman or degrading punishment contrary to Section 5 of the Constitution of Saint Lucia. (b) A D eclaration t hat the r emoval of t he s aid m echanical r estraint an d i ts replacement w henever t he A pplicant v isits t he ba throom or w henever t he Applicant is visited by his legal adviser amounted t o t orture or inhuman or degrading punishment contrary to Section 5 of the Constitution of Saint Lucia. day of (c) A Declaration that the cellular confinement of the Applicant since 31st August 1999 and continuing to the present time without break and ordered by the Superintendent of Prisons amounted to inhuman or degrading punishment contrary to Section 5 of the Constitution of Saint Lucia. (d) The Applicant is entitled to Damages to be assessed and Costs to be taxed if not agreed.

ASSESSMENT OF DAMAGES

[52]I now turn to the assessment of damages. The Applicant claims compensatory, aggravated, exemplary and punitive damages of $500,000.00.

[53]In as sessing dam ages f or br each of c onstitutional r ights, t here i s a dear th of authority in the Commonwealth Caribbean on the principles or guidelines by which such d amages ar e t o b e assessed. I n the P rivy Council case of Maharaj v Attorney General of Trinidad & Tobago [1978[ 2 All ER 670, at page 680, Lord Diplock had this to say: “Finally, t heir Lor dships w ould s ay s omething a bout t he m easure o f monetary c ompensation recoverable un der s ection 6 w here t he contravention of the claimant’s constitutional rights consists of deprivation of liberty otherwise than by the due process of law. The claim is not a claim in private law for damages for the tort of false imprisonment, under which the damages recoverable are at large and would include damages for l oss of r eputation. I t i s a c laim i n pu blic l aw f or c ompensation f or deprivation o f l iberty alone. S uch c ompensation w ould i nclude l oss of earnings consequent on t he false imprisonment and recompense for the inconvenience an d di stress s uffered by t he a ppellant d uring hi s incarceration. “

[54]So, in Maharaj’s case, the court took into consideration as matters relevant to the computation: (1) loss of earnings consequent on the false imprisonment and (2) inconvenience an d di stress s uffered by t he v ictim. N o c laim w as m ade f or exemplary or punitive damages.

[55]In the Privy Council case of Attorney General of St. Christopher and Nevis v Reynolds [1980] A.C. 637, a small sum of exemplary damages was awarded.

[56]Counsel for the Applicant submitted that exemplary damages ought to be awarded to the Applicant for the high-handed and oppressive conduct by officers of t he State. In this regard, Counsel cited the leading authority of Rookes v Barnard [1964] 1 All ER 367. In this case it was held that English Law recognized the awarding of exemplary damages, that is, damages whose object was to punish or deter and which were distinct from aggravated damages (whereby the motives and conduct of the defendant aggravating the injury to the plaintiff would be taken into account in assessing compensatory damages); and there are two categories of cases in which an award of exemplary damages could serve a us eful purpose, namely: i n t he c ase of o ppressive, ar bitrary or un constitutional ac tion by t he servants of the government, and in the case where the defendant’s conduct had been calculated by him to make a profit for himself.

[57]Mr. F rancois dec lared t hat t his i s a f itting c ase f or t he award of ex emplary damages to the Applicant. He referred to a n umber of authorities to support his contention including the cases of: (1) Fuller v Attorney General of Jamaica [Civil Appeal No.91 of 1995] [unreported]; (2) Ramnarine Jorsingh v Attorney General of Trinidad & Tobago [Civil Appeal No.41 of 1991] [unreported]; (3) Tynes v Barr (1992) 45 WIR 7; and (4) Reynolds Peters v Superintendent of Prisons et al [supra].

[58]In the case of Tynes v Barr [supra] a lawyer was subjected to a body search by the defendant including the “patting” through his clothing of his private parts. He was then taken handcuffed in an open jeep clearly visible t o the public, t o the police s tation w here he was f orcibly s trip-searched w hile h andcuffed, then fingerprinted and placed in a cell. He was denied the use of the telephone to call a lawyer but w as l ater r eleased on b ail and c harged with t he of fence r elating t o trespass at the airport tarmac contrary to the Civil Aviation Act and for failing to move contrary to s. 212(8) of the Penal Code. The Plaintiff instituted proceedings for damages for the torts of assault, false imprisonment, malicious prosecution and the breach of the citizens right to personal liberty as guaranteed under Article 19 of the C onstitution. T he P laintiff w as aw arded $40,000.00 f or breach of hi s constitutional r ights. I n r elation t o t he s um p aid f or br each of t he P laintiff’s constitutional r ights, t he court ex pressed t he v iew t hat t he c onduct of the Defendant fell precisely in the category of oppressive, arbitrary or unconstitutional action by servants of the State giving rise to exemplary damages. At page 24 of her judgment, Sawyer J. [as she then was] said: “I have already held that the Plaintiff is entitled to damages to compensate him for the wrongs done to him by officers of the Crown (the State). In my view, those damages should include an amount f or humiliation, i.e. the injury to the Plaintiff’s dignity and pride, which he endured. In addition, he is entitled to be compensated for the loss of his personal liberty, mental suffering and the loss of his reputation.”

[59]The C ourt i n aw arding ex emplary dam ages i n Tynes v Barr stated t hat n o apology was offered to the Plaintiff until a suggestion was made by the Plaintiff’s Counsel in the course of his closing address. The Learned Judge said that she could only characterize the conduct of the police as arrogant indeed, as well as abusive and outrageous.

[60]Counsel relied heavily on the quantum of damages awarded in Reynolds Peters v Superintendent of Prisons et al from t he neighbouring j urisdiction of S aint Vincent and t he G renadines. I n t hat c ase, Adams J. in assessing dam ages awarded $50,000.00 f or s hackling w hich he c onsidered as ap propriate compensation for such a tragic imposition on the human personality. For solitary confinement for a period of about six months, he awarded another $50,000.00 and for f logging $ 50,000. H e also aw arded t he s um o f $75, 000.00 for ex emplary damages. In awarding the latter, the learned Judge took into consideration that up to the very moment, no apology was forthcoming from the State concerning the admitted breach of the Applicant’s constitutional rights.

[61]Counsel for the Applicant urged the Court to assess damages in the instant case by us ing t he pr inciples en unciated by A dams J . T he S tate h as app ealed t he Judgment of A dams J . T he ap peal w as he ard by t he C ourt of A ppeal on Wednesday of l ast w eek. Unfortunately, t he C ourt of A ppeal has r eserved i ts Judgment to September of this year.

[62]I am however grateful for the enlightening judgment of Adams J. But, as Counsel for the Respondents rightly suggested, the instant case is indeed distinguishable from the Reynolds Peters’ case and for that matter, from all of the cases cited by Learned Counsel for the Applicant.

[63]In computing damages, the Court has to take into account the following factors as relevant to the computation: (1) Loss of earnings consequent upon imprisonment. (2) Injury to the Applicant’s dignity and pride. (3) Distress and inconvenience that inevitably followed. (4) The disgrace and humiliation which accompanied the treatment meted to him. (5) Pain and Suffering.

[64]In the instant case, I am of the considered opinion that the only factor relevant to the computation of damages is the pain and suffering endured by the Applicant as a result of being placed in mechanical restraints for an extended period of time. There was evidently no loss of earnings consequent upon the imprisonment for the Applicant was a pr isoner serving a t erm of imprisonment when the Prison Rules were violated. I cannot see what injury the Applicant could have suffered to his pride and dignity. Or the disgrace and humiliation meted out to him. After all, the Applicant i s a no torious C riminal. H e i s now 51 y ears ol d a nd has s pent t he greater par t of hi s l ife i n pr ison. H is c onviction c ard s hows t hat he s tarted committing crimes since he was 12 years old. The Respondents also presented documentary evidence to prove t hat t he A pplicant i s w anted i n B arbados f or attempted m urder. I n as sessing damages, I m ust also t ake t his factor i nto consideration.

[65]This l eads m e t o c onsider anot her i ssue: w hether the actions t aken by t he Superintendent of Prisons amounted to insolent and arrogant behaviour. Counsel for the Respondents argued that if the Court finds male fides on the part of the Superintendent of Prisons, then the Court could award damages. Mr. Francois, however s ubmitted t hat t he i ntention of the S uperintendent i s i rrelevant as t he case is against the State. I disagree with Mr. Francois. It is important to consider whether t he S uperintendent of P risons w as ar rogant as w ell as abus ive an d outrageous i n hi s ac tion. T here i s no s uch ev idence o n t he p art of t he Superintendent of Prisons. As I iterated earlier in my judgment, I am of the view that the Superintendent of Prisons felt that he had a dangerous criminal on hand and he did not know how and where to confine him in his already over-populated and antiquated prison. There were too many incidents of escaped prisoners at the prisons so the Superintendent took no chances with the Applicant. He decided to shackle him and place him in solitary confinement from the inception. But I have also c oncluded, t he s hackling a nd s olitary c onfinement w ere i n br each of t he Prison R ules a nd amounted t o torture, i nhuman a nd de grading pu nishment t o warrant an award of damages.

[66]It i s i mportant t o m ention that t he C onstitution o f S aint Luc ia by s ection 1 6(2) expresses in very broad terms the discretion given to the Court for the purpose of enforcing t he provisions e nacted f or t he protection of c onstitutional rights. T he provision gives authority to the Court to: “make s uch dec larations and or ders, i ssue s uch w rits and gi ve s uch directions as it may consider appropriate for the purpose of enforcing or securing t he e nforcement of any o f t he pr ovisions o f s ections 2 to 1 5 (inclusive) of this Constitution.”

[67]Chief Justice de la Bastide commenting on this provision in the case of Jorsingh v Attorney General of Trinidad & Tobago [supra] relevant to the enforcement of constitutional provisions – Section 16(2) expressed the view: “it i s not r eadily ap parent t o m e i n m aking an order f or p ayment of damages as a consequence of a breach of a constitutional right the court should be either (a) limited to providing compensation for the injured party or ( b) boun d necessarily b y t he r ules w hich govern the as sessment o f damages (including exemplary damages) at common law.”

[68]Chief Justice de la Bastide was somewhat concerned with the case of Reynolds v Attorney General of St. Christopher and Nevis [supra] where the Privy Council seems to have been saying that exemplary damages were nor recoverable as part of an award of damages for breach of constitutional right. I also share that view and as a consequence, refrain from making any award of exemplary damages in the instant case.

[69]In the result, I would assess damages for the shackling and solitary confinement of the Applicant. I award a global figure of $25,000.00 with costs to be taxed, if not agreed.

Indra Hariprashad-Charles

High Court Judge

CIVIL SUIT No. 535 OF 2000: Haripershad-Charles, J Delivered: 31/07/00