REYNOLD PETERS v BERNARD MARKSMAN et al

809 457 1888 P.02/08 JUDGE'S CHAMBERS MAY-25-2000 15:48 ST. VINCENT AND THE GRENADINES IN THE mGH COURT OF JUSTICE CIVIL SUIT NO.: 246197 IN THE MATTER OF THE CONSTITUTION OF ST. VINCENT AND THE GRENADINES 1979 AND IN THE MATTER OF AN APPLICATION BY REYNOLD PETERS ALLEGING THAT THE RIGHTS GUARANTEED TO IDM BY SECTION 5 OF THE CONSTITUTION HAVE BEEN CONTRAVENED IN RELATION TO HIM FOR REDRESS IN ACCORDANCE WITH SECTION 16 OF THE SAID CONSTITUTION BETWEEN: REYNOLD PETERS Applicant AND BERNARD MARKSMAN, Superintendent of Prisons and THE ATTORNEY GENERAL of St. Vincent and the Grenadines Respondents Appearances: Dr. Lloyd Barnet and Mr. Victor Cuffy for Applicant Mr. Parnel Campbell and Miss McSheen for Respondents IN CHAMBERS 1999: April 12, 13 ASSESSMENT OF DAMAGES ADAMS,J. By a judgment of 31st July, 1997 Mitchell J made the following awards in favour ofthe applicant Mr. Reynold Peters ­ (1) A declaration that the execution of a purported sentence ofwhipping by 10 strokes ofa cat-o-nine tails whip or instrument on the applicant Reynold Peters ordered by the Superintendent ofPrisons. Bernard Marksman, on August 26. 1996 was unconstitutional and unlawful in that it was done in contravention of the applicantls right not to be subjected to torture or to inhuman or degrading punishment or other such treatment guaranteed to him by section 5 of the constitution of st. Vincent and the Grenadines. (2) A declaration that the Superintendent ofPrisons acted without lawful authority by ordering that corporal punishment be administered to the person of the Applicant on 809 457 1888 P.03/08 JUDGE'S CHAMBERS __ ~.-......._. __ . f~," ... MAY-25-2000 15:48 August 26. 1996 for what was alleged to have been breaches of Prison rules 50 (a), (d), (f) and (s) ofBooklet (I) ofthe Prison Aet Cap 281 ofthe Laws ofSt. Vincent and the Grenadines. (3) A declaration that the cellular confinement ofthe Applicant since August 26, 1996 and continuing to the present time without break and ordered by the Superintendent of Prisons amounts to inhuman and degrading treatment which the Applicant is guaranteed not to be subjected to by Section 5 of the Constitution of St. Vincent and the Grenadines. (4) A declaration that the applicant having been kept in iron-clad leggings and handcuffs from August 26, 1996 until the month of February 1997 continuously, and with which he had to sleep and eat so bound and only relieved ofthose shackles when he was allowed to bathe amounted to torture or to inhuman or degrading punishment contrary to section 5 of the Constitution ofSt. Vincent and the Grenadines. ..... ~ (5) A declaration that the whip or instrument known and referred to as the "cat-o-nine tailsll is not an instrument which is legalized at the present time or at the time ofAugust 26, 1996 in St Vincent and the Grenadines for the purpose ofpunishment ofoffenders against the criminal andlor penal law or the prison rules or regulations in St. Vincent and the Grenadines. (6) An award ofcosts to the Applicant to be taxed ifnot agreed. The learned judge not having made an award ofdamages, the applicant appealed to the Court of Appeal and by a consent order before that court liability was conceded by the Respondents and the Court ofAppeal ordered "assessment of such constitutional redress payable to the appellant" by a Judge ofthe High Court. This judgment is concerned solely with the assessment nfdamages to which the applicant would be entitled and following hereunder is a synopsis of the facts as found by the trial judge liThe applicant Reynold Peters (hereafter Mr. Peters) is 40 years old. He is serving a tenn of 12 years imprisonment for manslaughter imposed on 12th June, 1988 at the State Prison for men, in Kingstown. On 26th August, 1996 he is alleged to have assaulted Senior Prison Officer Linus Ooodluck. To be specific 11 x 2" he is said to have hit him in the back ofhis head with a 3 foot length of2 wood. rendering him unconscious for several hours. Even while officer Ooodluck was unconscious and being dragged from the prisons, Mr. Peters pursued him with the length ofwood attempting to strike him again. There is no suggestion that he succeeded in striking officer Ooodluck mote than once, nor is there any indication what sparked the assault. There is a charge of assault causing actual MRY-25-2000 15:49 JUDGE'S CHRMBERS 809 457 1888 P.04/08 bodily harm still pending in the Magistrate's Court relating to this incident. Mr. Peters is liable ifhe is convicted of this charge to be sentenced to a lengthy tenn ofimprisonrnent to run either concurrently with or consecutive to the balance of the term he is still serving. On 26th August the day of the incident and immediately after it had occurred, the Applicant was additionally charged as a resuJt of this incident with various contraventions of Section 50 of the Prison Rules. The actual assault on Officer Goodluck did not fonn part of the disciplinary charges brought under the Prison Rules. That offence of assault is being dealt With by the police, not the prison authorities. and is still before the Magistrate. The disciplinary charges brought against Mr. Peters under Section 50 were heard by the Superintendent of Prisons on the same day as the incident. The Superintendent found Mr. Peters guilty of the above disciplinary charges. As punishment the applicant was ordered to receive 10 strokes with a cat-a-nine tails. and to cel1ular confinement. He was placed lying on his stomach on a bench with iron stays to each ofhis legs to keep them in place. His hands were handcuffed. A hood was placed over his face. His back was then exposed. The flogging with 10 strokes of the cat-o-nine tails was then canied out- Following the execution ofthis physical punislunent the applicant was placed in a cell where he was still kept at the time ofthe hearing ofthis application on 24th July. 1997. He is confined to his cell continuously. allowed out only for a short period each day to shower. The evidence in the affidavit ofthe Superintendent is that this cellular confinement was for a two-fold purpose, to aid recovery from the flogging and to form part oftbe punishment for the threat on the lives ofofficers, including that ofthe Superintendent. The applicant must have recovered from his injuries from the tlogging by this time. He must therefore be still in solitary confinement for the other remaining reason. Le. punishment. He was for some months kept in a single cell in restraint, that is he had to eat and sleep bound with foot-leggings and handcuffs. These shackles were sometimes removed for short periods oftime, for example when he showered, Mr. Peters as a result of his continuously being shackled has suffered abrasions and contusion to his lower legs. Finally. on 10th January after an intervention by Mr. Peters' solicitor to the Prime Minister in his capacity as Minister of Justice. the shackles were removed. He does not appear still to be shackled. When he appeared in Court he was unchained and accompanied by a single Prison Officer. n 809 457 1888 P.05/08 JUDGE'S CHAMBERS MAY-25-2000 15:49 It is upon the basis of these facts that I embark on the search for an appropriate sum to compensate the citizen for what must be described as an alarming breach ofhis constitutional rights. In an article published in the Canadian Bar Review Vol. 62 (1984) 517 it is said that the purpose ofawarding damages in constitutional matters shouJd not be limited to simple compensation. Such an award the article suggests ought in proper cases to be made with a view to deterring a repetition of breach or punishing those responsible for it or even for securing effective policing of the constitutionally enshrined rights by rewarding those who expose breaches ofthem with substantial damages. The nature of a claim for compensation for breach of ones constitutional rights was further exp]ained by the Privy Council in Maharaj v Attorney General of Trinidad and Tobago 1977 1 ALL ER P.C. (when speaking oftight not to be deprived ofones liberty). "Finally their Lordships would say something about the measure ofmonetary compensation recoverable under Section 6 where the contravention of the claimants constitutional rights consists ofdeprivation ofliberty otherwise than by due process of law. The claim is not a claim in private law for damages for the tort of false imprisonment under which damages are at large and would include damages for loss of reputation. It is a claim in public law for compensation for deprivation of liberty alone ... II I propose to proceed to the award on the basis that the liability of the State in the case is not based on the theory ofvicarious liability incurred by virtue of a tort committed by its servants but rather primary liability in the area of public law for a wrong committed by the State and in its name. Lord Diplock put it succinctly when he said in relation to redress under the constitution of Trinidad and Tobago­ "The claim for redress under 6 (1) for what has been done by a judge is a claim against the State for what has been done in the exercise ofthe judicial power of the State. This is not vicarious liability; it is liability ofthe State itself. It is not a liability in tort at all: it is a liability in the public law ofthe State not of the judge himself, which has been newly created by Section 6 (1) and (2) ofthe constitution" Maharaj V Attorney General of Trinidad and Tobago 21979 A.C. p. 399. In approaching the assessment of damages in this case I am mindful that there is a dearth of authority on the principles or guidelines by which such damages are to be assessed. I am only aware of two decisions of the Privy Council that have dealt with the assessment ofdamages for breach ofconstitutiona1 rights. Those cases are Mahar-aj v The Attar-ney Gelleral ofTrinidad 809 457 1888 P.06/08 JUDGE'S CHAMBERS MAY-25-2000 15:50 and Tobago No.2 1979 A.C. 385 and Attorney General of St. Christopher and Nevis v Reynolds 1980 A.C. p. 637. Maharaj was a case of deprivation of liberty by wrongful imprisonment. The court took into account as matters relevant to the computation: (1) Loss of earnings consequent upon imprisonment (2) recompense fOT the inconvenience and distress suffered by the victim of the breach. No claim was in that case made for exemplary damages and so none was awarded. Loss of earnings would be irrelevant in this case as the aggrieved citizen was in fact serving a sentence of imprisonment. But in the later case ofReynolds a smal1 sum of el(empJary damages was awarded and the principle acknowledged that exemplary damages are payable for high-handed and oppressive conduct by officers ofthe State. This principle I venture to state is firmly embedded in our constitutional law jurisprudence - liThe fundamental ends sought by an award of exemplary damages are both punishment and disapproval. It is a question of punishing a wrong and of publicly indicating that it is not acceptable; the end sought is not to compensate the victim for the loss suftered." - vide Patenando v Roy et al 128 D.L.R. 4th Edition p. 78. But there are other Caribbean cases that are worthy of attention since they deal both with awards ofexemplary damages, and damages payabJe under other headings. I first draw attention to the case ofTynes v Barr 199245 WIR p. 7. In that case 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 to the public, to the police station where he was forcibly strip-searched while handcuffed, then fingerprinted, and placed in a cell. He was denied the use of the telephone to call a lawyer but was later released on bail and charged. with an offence relating to trespass at an airport tannac contrary to the Civil Aviation Act and fOT failing to move contrary to S. 212 (8) of the penal code. The plaintiff instituted proceedings for damages for ti'1f; torts of assault, fa1se imprisonment, malicious prosecution and breach of his right to personal liberty as guaranteed under Article 19 of the Constitution. On the 6th day ofthe trial the defendant conceded liability for the torts of assault, false imprisonment, malicious prosecution and the breach ofthe citizens right to personal liberty as guaranteed under Article 19 of the Constitution. On the ninth day the tort of malicious prosecution was conceded. In that case special damages 0{$40,505.00 were awarded and so were damages of $75,000.00 for assault, battery, and false imprisonment; $100,000.00 for malicious prosecution, and $40,000.00 for breach of the plaintiffs constitutional rights. In relation to the sum paid for breach of the constitutional rights of the plaintiff the court expressed the view that the conduct of the defendant fell precisely in the category of oppressive. arbitrary or unconstitutional action by Itservants" giving rise to exemplary damages. In assessing the exemplary damages a court should include the injury the pLaintiff had endured to his dignity and pride, mental suffering and loss of reputation. This is how the learned Chief Justice perceived the conduct of the public officials in that case: MAY-25-2000 15:50 JUDGE'S CHAMBERS 809 457 1888 P.07/08 "Unless the Baha:mas has become a police state the conduct of the upper echelons ofthe police force cannot be accepted by any court and certainly not by the Supreme Court which is the guardian of the Constitution. As a result ofthe flagrant disregard for the rule of law by the police an order with a penal notice endorsed thereon was issued to the Commissioner of Police and only then were some of the relevant documents (even those which have been helpful to the defence) produced. It must be clear to all concerned in the administration of justice in this country, that the Constitution of [he Bahamas is predicated upon the rule of law~ not anyone's whim or fancy and that everyone is subject to the law. "The attitude", the ChiefJustice continued, "eXhibited by those in positions of authority in disciplined forces such as the police permeates the whole organization and if they show such disregard tor the orders ofthe Supreme Court can it be wondered at that the lower ranks would show disregard fer individual subject's rights! n The case of Fuller v Attorney General Jamaiea (Civil Appeal 91 of 1995) is the other Caribbean ease to which I now turn attention. That case involved barbarity at the highest level and resulted in very erudite judgments in the Court ofAppeal in Jamaica. Some of the prisoners who were placed in the cells died because ofpoor ventilation. This led to actions brougbt by the mother of one ofthe deceased under the Fatal Accidents Act ofla:maica. After expressing the opinion that he should take account of the awful prison conditions in which Fuller had been placed Downer JA went on to say lithe unqualified language of Section 11 demonstrates that the Constitulion imposed an absolute prohibition on the State as regards torture or inhuman or degrading treatment. The nearest counterpart to this in our Statute law is the Bm ofRights which prohibits illegal and cruel punishments inflicted that go beyond the tort of false imprisonment in bad conditio~s. Equally Section 17 ofthe Constitution which goes beyond the tort of false imprisonment is a recognition that the horrors which governments in this century have inflicted on those within their jurisdictions require constitutional remedies 11. The learned Justice of Appeal went on fO award 1 112 million dollars. Patterson 1.A. in the very case in considering what financial redress the breach ofthe citizens constitutional rights should allow said. nIt is incumbent on the Courts to develop appropriate principles and guidelines as to the quantum ofawards ofcompensation where applicable. As I pointed out before the usual order sought was the grant ofa declaration that the applicants constitutional rights had been infringed. Where such a declaration has been made it is adhered to by the appropriate organ ofthe State and the implementation poses no difficulty. Where an award of monetary compensation is appropriate the crucial question must be what is a reasonable amount in the circumstances ofthe particular case. The infringement should be viewed in its true perspective as an 809 457 1888 P.08/08 MRY-25-2000 15:51 JUDGE'S CHRMBERS infringement ofthe sacrosanct fundamental rights and freedoms ofthe individual and a breach ofthe supreme law of the land by the State itself. But that does not mean that the infringement should be blown out of all proportion to reality nor does it mean that it should be trivialized. In like manner the award should not be so large as to be a windfall nor should it be so small as to be nugatory." The learned judge went on to say, "I will take into account the inconvenience and distress which the deceased must have suffered during his incarceration. I will also take into account that the inhuman and degrading treatment lasted for thirty-six hours. II The learned judge held that one mimon dollars was sufficient compensation. It is of some importance to note that in his judgment Harrison I.A. (the third judge) took. time to observe that the Government ofJamaica had conceded there was inhwnan treatment, apologized, paid the funeral expenses, offered no defence to the claim. and cast no aspersion on the character ofthe deceased~ and fwther note should be taken that Downer lA. referring to the quantum of damages said. "It must be sufficient recompense to the estate of the deceased so that the beneficiaries will be aware in a tangible way that the State cares and acknowledges the responsibilities with regard to its obligations under Chapter III ofthe Constitution." In the case of Ramnarine Joningh v Attorney General of Trinidad and Tobago Civil Appeal No. 144 of 1991 De La Bastide C.1. in the Court of Appeal found that the loss of earnings which the citizen had suffered was directly attributable to the'delay by the Court in rendering its judgment and that such failure constituted a breach ofhis constitutional rights. awarding $50,000.00 for loss ofearnings and $20,000.00 for distress and inconvenience and ordering the payment ofinterest on the total sum of $70,000.00 from the date the citizen had filed his action up to the date ofjudgment of the Chief Justice. The learned trial judge in the instant case found that the solitary confinement, the shackling of the applicant and the flogging were aU unlawful. "The shackling ofthe prisoner for an extended period including while he slept and ate without the order ofthe justices was a brutal and severe assault on the person and psyche ofMr. Peters. It was designed to brutalize and break hlm and to reduce him to compliancy by stripping him of all dignity and selfrespect. It amounted to a form of torture." The illegalities of which the Superintendent was manifestly guilty, would have inflicted considerable pain and suffering. which would include the indignity and humiliation to which he 809 457 1888 P.01/04 JUDGE'S CHAMBERS MAY-25-2000 15:53 was subjected. Notionally $50,000.00 can be appropriate compensation for such a tragic imposition on the human personality. Then there was the solitary confinement which Mr. Peters was made to undergo from the 26th Augus~ 1996 and was still undergoing when the leamed trial judge gave his judgment on July 31,

1997.Solitary confinement the learned judge held was by virtue ofprison rules limited to a month unless extended by the visitingjustices. There was no such extension. Notionally too I cannot find the way to a lesser stun ofdamages than that ofSSO,OOO.OO for this foul outrage. The trial judge found that Mr. Peters was shackled (both hands and feet) and that this was in violation of the prison laws. The shackling continued even when the prisoner was having his meals or going to sleep. This was ifanything cruelty "in excelsis", It lasted from August of 1996 to January 1997. MercifuHy but oddly so, it was only political intervention (sought by counsel for Mr. Peters) that led to the removal ofthe shackles. The sum of $50,000.00 is perhaps too small a sum to compensate Mr. Peters, victim as he admittedly was ofconduct reminiscent of the African slave trade. I have looked at the affidavits ofDr. Debnath and Or. Ramjani. The last named doctor also testified at the hearing for the assessment ofdamages. The influence oftheir testimony has been minimal. In arriving at a global figure relating to damages for the flogging, shackling ofthe applicant's feet and hands and the solitary confinement which he underwent, I take into account: (1) the pain and suffering (2) the assault on his dignity (3) distre$s l.lld inconvenience that inevitably followed (4) the disgrace and humiliation which accompanied the treatment meted out to him I am aware that redress in financial terms for breach ofconstitutional provisions is an ingredient ofour jwisprudence now coming into prominence and which must necessarily evolve in such a way as to balance the competing interests of the State to preserve law and order and that ofthe citizen not to have his constitutional rights trampled upon. The noble task of effecting this balance is conferred upon the judiciary. who have traditionally been regarded as guardians ofthe constitution. Before arriving at an award of damages I should like to refer to the case ofJamakana v Attorney General 1985 L.R.C. (Const) 569 a case from the Solomon Islands where Daly CJ made two separate awards ofcompensation for a breach of a constitutional right; one against the Government and the other against the Minister responsible for the breach, personally. He 809 457 1888 P.02/04 JUDGE'S CHAMBERS MAY-25-2000 15:54 founded the right to do so on section 18(2) ofthe Solomon Islands constitution which provides that the court could "make such orders, issue such writs and give such directions including the payment ofcompensation as it may consider appropriate for the purpose of enforcing or securing the enforcement of the protective provision of this constitution. " The ChiefJustice in drawing attention to the provision just cited went on to say that "it will be noted that the discretion here granted to make orders ofcompensation is expressly related to the enforcement ofthe protective provisions ofthis constitution and therefore would seem to go beyond the nonnal common law principles which would for example require only one award ofdamages to be made against joint tortfeasors sued in one action. I consider that my paramount duty is to enforce or secure the enforcement ofthe protective provisions ofthe constitution, and hence ifit is necessary to do so in the performance of this duty I may award compensation separately against persons alleged to have contravened the constitutional rights of an applicant." In the case ofJorsiDgh cited above De La Bastide CJ agreeing with Daly CJ said: "I would respectfully agree with the learned Chief Justice that the constitutional provision which makes enforcement ofthe guaranteed rights the object of the relief which the court is empowered to grant has the effect ofreleasing the court from the constraints of the common law rules governing the award of damages moreso as our section 14 (2) (unlike section 18 (2) in the Solomon IslandS) makes no express mention ofthe 'Ipayment ofcompensation" f'. It is to be noted that the constitution ofSt. Vincent and the Grenadines by section 16(2) expresses in very broad terms the discretion given to the court for the purpose ofenforcing the provisions enacted for the protection ofconstitutional rights. The provision gives authority to the court to "make such declarations and orders, issue such writs and give such directions as it may consider appropriate for the purpose ofenforcing or securing the enforcement ofany ofthe provisions of section 2 to 15 (inclusive) ofthis Constitution." It is my view that under the foregoing provision a court may inter alia order the initiation of legal proceedings against a delinquent public official, impose an award ofdamages against him, subject him to disciplinary proceedings, and commute a sentence of death to one oflife imprisonment when the discretion to do these things is warranted - because ofconstitutional breaches. 809 457 1888 P.03/04 JUDGE'S CHAMBERS MAY-25-2000 15:54 In the course ofhis judgment in Jorsingh (supra) Chief Justice De La Bastide commenting on the provisions cited above, relevant to the enforcement of constitutional provisions (section 16(2) of the constitution of St. Vincent and the Grenadines, section 14 (2) ofthe constitution of Trinidad and Tobago, and section 18(2} of the Solomon Islands) expressed the view that given the breadth ofthe sections of the respective constitutions "it is not readily apparent to me why in making an order for payment ofdamages as a consequence ofa breach of a constitutional right the court should be either (a) limited to providing compensation for the injured party or (b) bound necessarily by the rules which govern the assessment ofdamages (including exemplary 1I damages) at common Jaw. Chief Justice De La Bastide was somewhat concerned that the Privy Council seems to have been saying in the case of Reynolds (supra) that exemplary damages were not recoverable as part of an award ofdamages for breach of a constitutional right. I say with due deference that the Privy Council has not specifically so determined. Against this background> I am of the view that in addition to the factors numbered 1 - 4 mentioned above which I am prepared to take into account in fixing the quantum ofdamages, I should - while awaiting determination ofa court that binds me to the principle that exemplary damages in a matter such as this are not allowable - proceed on the basis that I am not bound by any such principle. A tragic day it was in August of1996 when darkness fen upon this land through the activities of a public official serving the State ofSt. Vincent and the Grenadines in the capacity of Superintendent of Prisons. As ifhe were a law unto himself he laid a charge against the applicant which he had no authority to bring. inflicted the punishment of flogging which the law did not permi~. ahackled the hands and feet of another human for months on end with occasional relief, and after his avenging lust had spent itselfconsigned the aching body of Reynold Peters to solitary confinement. I am mindful of the economic considerations relating to the purchasing power of the cu.:rrency involved in this case and venture the opinion that in Third World countries the citizen knows all too well the value ofhis money. In refraining from the grant ofdamages in the case Mitchell J volunteered that had he to assess the damages he would consider the amount of $225,000.00. What the learned judge suggested en ptusant in the course ofhis judgment I have by deliberate consideration regarded as appropriate. I convert the figures 1considered as notional earlier in this judgment into figures of$50,000.00 attributing that sum in each case to the shackling. the flogging and the solitary confmement making a total of$150,000.00. Tn fixing a figure of exemplary damages in this case I would take into account the fact that up to this very moment no apology in writing has been forthcoming from the State concerning the admitted breach ofthe 809 457 1888 P.04/04 M~Y-25-2000 15:55 JUDGE'S CH~MBERS . . ' • applicant's constitutional rights. None has come from the public official (see case ofFuller (supra) on this aspect). Instead of admitting at the outset the flagrant breaches by the Superintendent of Prisons cO\lllSel for the State sought to introduce into this tragedy the baseless and insulting contention that counsel appearing for the applicant had not in fact been retained by him. The public official who was responsible for this sordid chapter in the prison's history is still in the office as Superintendent with no indication on the file so far as I can see ofany disciplinary proceedings ever having been taken against him. I fix damages ofan exemplary nature in the sum of $75,000.00 making a global figure ofan award of$225,000.00 with interest at the rate of 6 per cent per annum to run from the date ofthe filing of the citizen's application to the High Court up to the date ofthe Judgment of Mitchell 1. Further and in pursuance of section t6(2) ofthe Constitution ofthis State I order that the Attorney General proceed forthwith with the institution of disciplinary proceedings against Bernard Marksman, the Superintendent ofPrisons. Costs shall be certified fit for two counsel. to be taxed ifnot agreed.

TOT~L P.04

809 457 1888 P.02/08 JUDGE’S CHAMBERS MAY-25-2000 15:48 ST. VINCENT AND THE GRENADINES IN THE mGH COURT OF JUSTICE CIVIL SUIT NO.: 246197 IN THE MATTER OF THE CONSTITUTION OF ST. VINCENT AND THE GRENADINES 1979 AND IN THE MATTER OF AN APPLICATION BY REYNOLD PETERS ALLEGING THAT THE RIGHTS GUARANTEED TO IDM BY SECTION 5 OF THE CONSTITUTION HAVE BEEN CONTRAVENED IN RELATION TO HIM FOR REDRESS IN ACCORDANCE WITH SECTION 16 OF THE SAID CONSTITUTION BETWEEN: REYNOLD PETERS Applicant AND BERNARD MARKSMAN, Superintendent ofPrisons and THE ATTORNEY GENERAL of St. Vincent and the Grenadines Respondents Appearances: Dr. Lloyd Barnet and Mr. Victor Cuffy for Applicant Mr. Parnel Campbell and Miss McSheen for Respondents IN CHAMBERS 1999: April 12, 13 ASSESSMENT OF DAMAGES ADAMS,J. By a judgment of31st July, 1997 Mitchell Jmade the following awards in favour ofthe applicant Mr. Reynold Peters ( 1) A declaration that the execution ofa purported sentence ofwhipping by 10 strokes ofa cat-o-nine tails

whip or instrument on the applicant Reynold Peters ordered by the Superintendent ofPrisons. Bernard Marksman, on August 26. 1996 was unconstitutional and unlawful in that it was done in contravention of the applicantls right not to be subjected to torture or to inhuman or degrading punishment or other such treatment guaranteed to him by section 5 of the constitution of st. Vincent and the Grenadines. (2) A declaration that the Superintendent ofPrisons acted without lawful authority by ordering that corporal punishment be administered to the person of the Applicant on 809 457 1888 P.03/08 JUDGE’S CHAMBERS __ ~.-……._.__ . f~,” … MAY-25-2000 15:48 2 August 26. 1996 for what was alleged to have been breaches ofPrison rules 50 (a), (d), (f) and (s) ofBooklet (I) ofthe Prison Aet Cap 281 ofthe Laws ofSt. Vincent and the Grenadines. (3) A declaration that the cellular confinement ofthe Applicant since August 26, 1996 and continuing to the present time without break and ordered

by the Superintendent ofPrisons amounts to inhuman and degrading treatment which the Applicant is guaranteed not to be subjected to by Section 5 of the Constitution ofSt. Vincent and the Grenadines. (4) A declaration that the applicant having been kept in iron-clad leggings and handcuffs from August 26, 1996 until the month ofFebruary 1997 continuously, and with which he had to sleep and eat so bound and only relieved ofthose shackles when he was allowed to bathe amounted to torture or to inhuman or degrading punishment contrary to section 5 of the Constitution ofSt. Vincent and the Grenadines. ….. ~ (5) A declaration that the whip or instrument known and referred to as the “cat-o-nine tailsll is not an instrument which is legalized at the present time or at the time ofAugust 26, 1996 in St Vincent and the Grenadines for the purpose ofpunishment ofoffenders against the criminal andlor penal law or the prison rules or regulations in St. Vincent

and the Grenadines. (6) An award ofcosts to the Applicant to be taxed ifnot agreed. The learned judge not having made an award ofdamages, the applicant appealed to the Court of Appeal and by a consent order before that court liability was conceded by the Respondents and the Court ofAppeal ordered “assessment of such constitutional redress payable to the appellant” by a Judge ofthe High Court. This judgment is concerned solely with the assessment nfdamages to which the applicant would be entitled and following hereunder is a synopsis ofthe facts as found by the trial judge liThe applicant Reynold Peters (hereafter Mr. Peters) is 40 years old. He is serving a tenn of 12 years imprisonment for manslaughter imposed on 12th June, 1988 at the State Prison for men, in Kingstown. On 26th August, 1996 he is alleged to have assaulted Senior Prison Officer Linus Ooodluck. To be specific he is said to have hit him in the back ofhis

head with a 3 foot length of211 x 2″ wood. rendering him unconscious for several hours. Even while officer Ooodluck was unconscious and being dragged from the prisons, Mr. Peters pursued him with the length ofwood attempting to strike him again. There is no suggestion that he succeeded in striking officer Ooodluck mote than once, nor is there any indication what sparked the assault. There is a charge of assault causing actual MRY-25-2000 15:49 JUDGE’S CHRMBERS 809 457 1888 P.04/08 3 bodily harm still pending in the Magistrate’s Court relating to this incident. Mr. Peters is liable ifhe is convicted ofthis charge to be sentenced to a lengthy tenn ofimprisonrnent to run either concurrently with or consecutive to the balance of the term he is still serving. On 26th August the day of the incident and immediately after it had occurred, the Applicant was additionally charged as a resuJt of this incident with various contraventions of Section 50 of the

Prison Rules. The actual assault on Officer Goodluck did not fonn part of the disciplinary charges brought under the Prison Rules. That offence of assault is being dealt With by the police, not the prison authorities. and is still before the Magistrate. The disciplinary charges brought against Mr. Peters under Section 50 were heard by the Superintendent of Prisons on the same day as the incident. The Superintendent found Mr. Peters guilty of the above disciplinary charges. As punishment the applicant was ordered to receive 10 strokes with a cat-a-nine tails. and to cel1ular confinement. He was placed lying on his stomach on a bench with iron stays to each ofhis legs to keep them in place. His hands were handcuffed. A hood was placed over his face. His back was then exposed. The flogging with 10 strokes of the cat-o-nine tails was then canied out- Following the execution ofthis physical punislunent the applicant was placed in a cell where

he was still kept at the time ofthe hearing ofthis application on 24th July. 1997. He is confined to his cell continuously. allowed out only for a short period each day to shower. The evidence in the affidavit ofthe Superintendent is that this cellular confinement was for a two-fold purpose, to aid recovery from the flogging and to form part oftbe punishment for the threat on the lives ofofficers, including that ofthe Superintendent. The applicant must have recovered from his injuries from the tlogging by this time. He must therefore be still in solitary confinement for the other remaining reason. Le. punishment. He was for some months kept in a single cell in restraint, that is he had to eat and sleep bound with foot-leggings and handcuffs. These shackles were sometimes removed for short periods oftime, for example when he showered, Mr. Peters as a result ofhis continuously being shackled has suffered abrasions and contusion to his lower legs. Finally.

on 10th January after an intervention by Mr. Peters’ solicitor to the Prime Minister in his capacity as Minister ofJustice. the shackles were removed. He does not appear still to be shackled. When he appeared in Court he was unchained and accompanied by a single Prison Officer. n 809 457 1888 P.05/08 JUDGE’S CHAMBERS MAY-25-2000 15:49 4 It is upon the basis ofthese facts that I embark on the search for an appropriate sum to compensate the citizen for what must be described as an alarming breach ofhis constitutional rights. In an article published in the Canadian Bar Review Vol. 62 (1984) 517 it is said that the purpose ofawarding damages in constitutional matters shouJd not be limited to simple compensation. Such an award the article suggests ought in proper cases to be made with a view to deterring a repetition ofbreach or punishing those responsible for it or even for securing effective policing ofthe constitutionally enshrined rights by rewarding

those who expose breaches ofthem with substantial damages. The nature of a claim for compensation for breach of ones constitutional rights was further exp]ained by the Privy Council in Maharaj v Attorney General ofTrinidad and Tobago 1977 1 ALL ER P.C. (when speaking oftight not to be deprived ofones liberty). “Finally their Lordships would say something about the measure ofmonetary compensation recoverable under Section 6 where the contravention ofthe claimants constitutional rights consists ofdeprivation ofliberty otherwise than by due process oflaw. The claim is not a claim in private law for damages for the tort offalse imprisonment under which damages are at large and would include damages for loss ofreputation. It is a claim in public law for compensation for deprivation ofliberty alone … II I propose to proceed to the award on the basis that the liability ofthe State in the case is not based on the theory ofvicarious liability incurred by virtue ofa tort committed by its servants

but rather primary liability in the area of public law for a wrong committed by the State and in its name. Lord Diplock put it succinctly when he said in relation to redress under the constitution of Trinidad and Tobago”The claim for redress under 6 (1) for what has been done by a judge is a claim against the State for what has been done in the exercise ofthe judicial power of the State. This is not vicarious liability; it is liability ofthe State itself. It is not a liability in tort at all: it is a liability in the public law ofthe State not ofthe judge himself, which has been newly created by Section 6 (1) and (2) ofthe constitution” Maharaj V Attorney General of Trinidad and Tobago 21979 A.C. p. 399. In approaching the assessment ofdamages in this case I am mindful that there is a dearth of authority on the principles or guidelines by which such damages

are to be assessed. I am only aware oftwo decisions ofthe Privy Council that have dealt with the assessment ofdamages for breach ofconstitutiona1 rights. Those cases are Mahar-aj v The Attar-ney Gelleral ofTrinidad 809 457 1888 P.06/08 JUDGE’S CHAMBERS MAY-25-2000 15:50 5 and Tobago No.2 1979 A.C. 385 and Attorney General of St. Christopher and Nevis v Reynolds 1980 A.C. p. 637. Maharaj was a case of deprivation of liberty by wrongful imprisonment. The court took into account as matters relevant to the computation: (1) Loss of earnings consequent upon imprisonment (2) recompense fOT the inconvenience and distress suffered by the victim of the breach. No claim was in that case made for exemplary damages and so none was awarded. Loss of earnings would be irrelevant in this case as the aggrieved citizen was in fact serving a sentence of imprisonment. But in the later case ofReynolds a smal1 sum of el(empJary damages was awarded and the principle acknowledged that

exemplary damages are payable for high-handed and oppressive conduct by officers ofthe State. This principle I venture to state is firmly embedded in our constitutional law jurisprudence -liThe fundamental ends sought by an award of exemplary damages are both punishment and disapproval. It is a question of punishing a wrong and of publicly indicating that it is not acceptable; the end sought is not to compensate the victim for the loss suftered.” -vide Patenando v Roy et al 128 D.L.R. 4th Edition p. 78. But there are other Caribbean cases that are worthy of attention since they deal both with awards ofexemplary damages, and damages payabJe under other headings. I first draw attention to the case ofTynes v Barr 199245 WIR p. 7. In that case 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 to the

public, to the police station where he was forcibly strip-searched while handcuffed, then fingerprinted, and placed in a cell. He was denied the use of the telephone to call a lawyer but was later released on bail and charged. with an offence relating to trespass at an airport tannac contrary to the Civil Aviation Act and fOT failing to move contrary to S. 212 (8) of the penal code. The plaintiff instituted proceedings for damages for ti’1f; torts of assault, fa1se imprisonment, malicious prosecution and breach of his right to personal liberty as guaranteed under Article 19 of the Constitution. On the 6th day ofthe trial the defendant conceded liability for the torts of assault, false imprisonment, malicious prosecution and the breach ofthe citizens right to personal liberty as guaranteed under Article 19 of the Constitution. On the ninth day the tort of malicious prosecution was conceded. In that case special damages 0{$40,505.00 were awarded and so were damages of

$75,000.00 for assault, battery, and false imprisonment; $100,000.00 for malicious prosecution, and $40,000.00 for breach of the plaintiffs constitutional rights. In relation to the sum paid for breach of the constitutional rights of the plaintiff the court expressed the view that the conduct of the defendant fell precisely in the category of oppressive. arbitrary or unconstitutional action by Itservants” giving rise to exemplary damages. In assessing the exemplary damages a court should include the injury the pLaintiff had endured to his dignity and pride, mental suffering and loss of reputation. This is how the learned Chief Justice perceived the conduct of the public officials in that case: MAY-25-2000 15:50 JUDGE’S CHAMBERS 809 457 1888 P.07/08 6 “Unless the Baha:mas has become a police state the conduct of the upper echelons ofthe police force cannot be accepted by any court and certainly not by the Supreme Court which is the guardian of the Constitution. As a result ofthe flagrant disregard for

the rule of law by the police an order with a penal notice endorsed thereon was issued to the Commissioner of Police and only then were some of the relevant documents (even those which have been helpful to the defence) produced. It must be clear to all concerned in the administration of justice in this country, that the Constitution of [he Bahamas is predicated upon the rule of law~ not anyone’s whim or fancy and that everyone is subject to the law. “The attitude”, the ChiefJustice continued, “eXhibited by those in positions of authority in disciplined forces such as the police permeates the whole organization and if they show such disregard tor the orders ofthe Supreme Court can it be wondered at that the lower ranks would show disregard fer individual subject’s rights! n The case of Fuller v Attorney General Jamaiea (Civil Appeal 91 of 1995) is the other Caribbean ease to which I now turn attention. That case

involved barbarity at the highest level and resulted in very erudite judgments in the Court ofAppeal in Jamaica. Some ofthe prisoners who were placed in the cells died because ofpoor ventilation. This led to actions brougbt by the mother of one ofthe deceased under the Fatal Accidents Act ofla:maica. After expressing the opinion that he should take account of the awful prison conditions in which Fuller had been placed Downer JA went on to say lithe unqualified language of Section 11 demonstrates that the Constitulion imposed an absolute prohibition on the State as regards torture or inhuman or degrading treatment. The nearest counterpart to this in our Statute law is the Bm ofRights which prohibits illegal and cruel punishments inflicted that go beyond the tort offalse imprisonment in bad conditio~s. Equally Section 17 ofthe Constitution which goes beyond the tort offalse imprisonment is a recognition that the horrors which governments in this century have inflicted on those within their jurisdictions

require constitutional remedies 11. The learned Justice of Appeal went on fO award 1 112 million dollars. Patterson 1.A. in the very case in considering what financial redress the breach ofthe citizens constitutional rights should allow said. nIt is incumbent on the Courts to develop appropriate principles and guidelines as to the quantum ofawards ofcompensation where applicable. As I pointed out before the usual order sought was the grant ofa declaration that the applicants constitutional rights had been infringed. Where such a declaration has been made it is adhered to by the appropriate organ ofthe State and the implementation poses no difficulty. Where an award ofmonetary compensation is appropriate the crucial question must be what is a reasonable amount in the circumstances ofthe particular case. The infringement should be viewed in its true perspective as an MRY-25-2000 15:51 JUDGE’S CHRMBERS 809 457 1888 P.08/08 7 infringement ofthe sacrosanct fundamental rights and freedoms ofthe individual and a breach ofthe supreme law

ofthe land by the State itself. But that does not mean that the infringement should be blown out of all proportion to reality nor does it mean that it should be trivialized. In like manner the award should not be so large as to be a windfall nor should it be so small as to be nugatory.” The learned judge went on to say, “I will take into account the inconvenience and distress which the deceased must have suffered during his incarceration. I will also take into account that the inhuman and degrading treatment lasted for thirty-six hours. II The learned judge held that one mimon dollars was sufficient compensation. It is of some importance to note that in his judgment Harrison I.A. (the third judge) took. time to observe that the Government ofJamaica had conceded there was inhwnan treatment, apologized, paid the funeral expenses, offered no defence to the claim. and cast no aspersion on the character ofthe deceased~

and fwther note should be taken that Downer lA. referring to the quantum of damages said. “It must be sufficient recompense to the estate of the deceased so that the beneficiaries will be aware in a tangible way that the State cares and acknowledges the responsibilities with regard to its obligations under Chapter III ofthe Constitution.” In the case of Ramnarine Joningh v Attorney General of Trinidad and Tobago Civil Appeal No. 144 of 1991 De La Bastide C.1. in the Court ofAppeal found that the loss of earnings which the citizen had suffered was directly attributable to the’delay by the Court in rendering its judgment and that such failure constituted a breach ofhis constitutional rights. awarding $50,000.00 for loss ofearnings and $20,000.00 for distress and inconvenience and ordering the payment ofinterest on the total sum of$70,000.00 from the date the citizen had filed his action up to the date ofjudgment of the Chief Justice. The learned trial judge in

the instant case found that the solitary confinement, the shackling of the applicant and the flogging were aU unlawful. “The shackling ofthe prisoner for an extended period including while he slept and ate without the order ofthe justices was a brutal and severe assault on the person and psyche ofMr. Peters. It was designed to brutalize and break hlm and to reduce him to compliancy by stripping him of all dignity and selfrespect. It amounted to a form oftorture.” The illegalities of which the Superintendent was manifestly guilty, would have inflicted considerable pain and suffering. which would include the indignity and humiliation to which he TOTAL P.08 809 457 1888 P.01/04 JUDGE’S CHAMBERS MAY-25-2000 15:53 8 was subjected. Notionally $50,000.00 can be appropriate compensation for such a tragic imposition on the human personality. Then there was the solitary confinement which Mr. Peters was made to undergo from the 26th Augus~ 1996 and was still undergoing when the leamed trial judge

gave his judgment on July 31, 1997. Solitary confinement the learned judge held was by virtue ofprison rules limited to a month unless extended by the visitingjustices. There was no such extension. Notionally too I cannot find the way to a lesser stun ofdamages than that ofSSO,OOO.OO for this foul outrage. The trial judge found that Mr. Peters was shackled (both hands and feet) and that this was in violation ofthe prison laws. The shackling continued even when the prisoner was having his meals or going to sleep. This was ifanything cruelty “in excelsis”, It lasted from August of 1996 to January 1997. MercifuHy but oddly so, it was only political intervention (sought by counsel for Mr. Peters) that led to the removal ofthe shackles. The sum of$50,000.00 is perhaps too small a sum to compensate Mr. Peters, victim as he admittedly was ofconduct reminiscent of the African slave trade. I have looked at the affidavits ofDr. Debnath and Or.

Ramjani. The last named doctor also testified at the hearing for the assessment ofdamages. The influence oftheir testimony has been minimal. In arriving at a global figure relating to damages for the flogging, shackling ofthe applicant’s feet and hands and the solitary confinement which he underwent, I take into account: (1) the pain and suffering (2) the assault on his dignity (3) distre$s l.lld inconvenience that inevitably followed (4) the disgrace and humiliation which accompanied the treatment meted out to him I am aware that redress in financial terms for breach ofconstitutional provisions is an ingredient ofour jwisprudence now coming into prominence and which must necessarily evolve in such a way as to balance the competing interests ofthe State to preserve law and order and that ofthe citizen not to have his constitutional rights trampled upon. The noble task of effecting this balance is conferred upon the judiciary. who have traditionally been regarded as guardians ofthe constitution. Before arriving at

an award of damages I should like to refer to the case ofJamakana v Attorney General 1985 L.R.C. (Const) 569 a case from the Solomon Islands where Daly CJ made two separate awards ofcompensation for a breach of a constitutional right; one against the Government and the other against the Minister responsible for the breach, personally. He 809 457 1888 P.02/04 JUDGE’S CHAMBERS MAY-25-2000 15:54 9 founded the right to do so on section 18(2) ofthe Solomon Islands constitution which provides that the court could “make such orders, issue such writs and give such directions including the payment ofcompensation as it may consider appropriate for the purpose of enforcing or securing the enforcement ofthe protective provision of this constitution. “ The ChiefJustice in drawing attention to the provision just cited went on to say that “it will be noted that the discretion here granted to make orders ofcompensation is expressly related to the enforcement ofthe protective provisions ofthis constitution and

therefore would seem to go beyond the nonnal common law principles which would for example require only one award ofdamages to be made against joint tortfeasors sued in one action. I consider that my paramount duty is to enforce or secure the enforcement ofthe protective provisions ofthe constitution, and hence ifit is necessary to do so in the performance ofthis duty I may award compensation separately against persons alleged to have contravened the constitutional rights of an applicant.” In the case ofJorsiDgh cited above De La Bastide CJ agreeing with Daly CJ said: “I would respectfully agree with the learned Chief Justice that the constitutional provision which makes enforcement ofthe guaranteed rights the object of the relief which the court is empowered to grant has the effect ofreleasing the court from the constraints ofthe common law rules governing the award of damages moreso as our section 14 (2) (unlike section 18 (2) in the Solomon IslandS) makes no express mention

ofthe ‘Ipayment ofcompensation” f’. It is to be noted that the constitution ofSt. Vincent and the Grenadines by section 16(2) expresses in very broad terms the discretion given to the court for the purpose ofenforcing the provisions enacted for the protection ofconstitutional rights. The provision gives authority to the court to “make such declarations and orders, issue such writs and give such directions as it may consider appropriate for the purpose ofenforcing or securing the enforcement ofany ofthe provisions of section 2 to 15 (inclusive) ofthis Constitution.” It is my view that under the foregoing provision a court may inter alia order the initiation of legal proceedings against a delinquent public official, impose an award ofdamages against him, subject him to disciplinary proceedings, and commute a sentence ofdeath to one oflife imprisonment when the discretion to do these things is warranted -because ofconstitutional breaches. 809 457 1888 P.03/04 JUDGE’S CHAMBERS MAY-25-2000 15:54 10 In the course ofhis judgment in Jorsingh

(supra) ChiefJustice De La Bastide commenting on the provisions cited above, relevant to the enforcement ofconstitutional provisions (section 16(2) of the constitution ofSt. Vincent and the Grenadines, section 14 (2) ofthe constitution of Trinidad and Tobago, and section 18(2} ofthe Solomon Islands) expressed the view that given the breadth ofthe sections ofthe respective constitutions “it is not readily apparent to me why in making an order for payment ofdamages as a consequence ofa breach ofa constitutional right the court should be either (a) limited to providing compensation for the injured party or (b) bound necessarily by the rules which govern the assessment ofdamages (including exemplary damages) at common Jaw.1I ChiefJustice De La Bastide was somewhat concerned that the Privy Council seems to have been saying in the case ofReynolds (supra) that exemplary damages were not recoverable as part of an award ofdamages for breach ofa constitutional right. I say with due deference that the Privy Council has not specifically so

determined. Against this background> I am ofthe view that in addition to the factors numbered 1 -4 mentioned above which I am prepared to take into account in fixing the quantum ofdamages, I should -while awaiting determination ofa court that binds me to the principle that exemplary damages in a matter such as this are not allowable -proceed on the basis that I am not bound by any such principle. A tragic day it was in August of1996 when darkness fen upon this land through the activities of a public official serving the State ofSt. Vincent and the Grenadines in the capacity of Superintendent ofPrisons. As ifhe were a law unto himself he laid a charge against the applicant which he had no authority to bring. inflicted the punishment offlogging which the law did not permi~. ahackled the hands and feet ofanother human for months on end with occasional relief, and after his avenging lust had spent itselfconsigned the aching

body ofReynold Peters to solitary confinement. I am mindful ofthe economic considerations relating to the purchasing power ofthe cu.:rrency involved in this case and venture the opinion that in Third World countries the citizen knows all too well the value ofhis money. In refraining from the grant ofdamages in the case Mitchell J volunteered that had he to assess the damages he would consider the amount of$225,000.00. What the learned judge suggested en ptusant in the course ofhis judgment I have by deliberate consideration regarded as appropriate. I convert the figures 1considered as notional earlier in this judgment into figures of$50,000.00 attributing that sum in each case to the shackling. the flogging and the solitary confmement making a total of$150,000.00. Tn fixing a figure of exemplary damages in this case I would take into account the fact that up to this very moment no apology in writing has been forthcoming from the State concerning the admitted breach ofthe 809 457

1888 P.04/04 M~Y-25-2000 15:55 JUDGE’S CH~MBERS . . ‘ • 11 applicant’s constitutional rights. None has come from the public official (see case ofFuller (supra) on this aspect). Instead ofadmitting at the outset the flagrant breaches by the Superintendent of Prisons cO\lllSel for the State sought to introduce into this tragedy the baseless and insulting contention that counsel appearing for the applicant had not in fact been retained by him. The public official who was responsible for this sordid chapter in the prison’s history is still in the office as Superintendent with no indication on the file so far as I can see ofany disciplinary proceedings ever having been taken against him. I fix damages ofan exemplary nature in the sum of$75,000.00 making a global figure ofan award of$225,000.00 with interest at the rate of 6 per cent per annum to run from the date ofthe filing of the citizen’s application to the High Court up to the date ofthe

Judgment of Mitchell 1. Further and in pursuance ofsection t6(2) ofthe Constitution ofthis State I order that the Attorney General proceed forthwith with the institution of disciplinary proceedings against Bernard Marksman, the Superintendent ofPrisons. Costs shall be certified fit for two counsel. to be taxed ifnot agreed. TOT~L P.04