Attorney-General Anil Nandlall said yesterday that the conditions under which the police can stop and search citizens is one that must be reviewed and this has been his longstanding position even before a recent High Court judgment addressing the matter.
Nandlall also disclosed that the decision is being appealed on the grounds of the quantum of the damages and other issues.
In October, Justice Navindra Singh was awarded over $2 million in damages after another judge found that the police acted in an unlawful and unconstitutional manner in arresting and detaining him on May 9th 2006 after he stopped his car when his engine light indicated there was a problem. The judge, Justice William Ramlal, was critical of the police behaviour in the case describing it as “wholly unacceptable” and in his ruling, said it is mandatory for the police to have reasonable suspicion of the commission of a criminal offence before any power to stop, search, arrest and detain any person can be exercised.
Nandlall told Stabroek News yesterday that the decision is being appealed. “The decision has been appealed in respect specifically to the quantum of damages awarded among other aspects of the decision,” he said. The AG asserted that the amount which was awarded is not in sync with awards which have been made by courts in Guyana in similar circumstances. “A judge in assessing damages is obliged to take into account awards made by other courts in like circumstances and to be guided by those awards in terms of ensuring that there is consistency in the award of damages. That is a fundamental rule in the assessment of damage. Other aspects of the ruling have also been challenged,” he said.
In the case, Singh, who was at that time, an attorney-at-law, was charged with several offences but the case was dismissed in June 2006 and on October 24, 2006, he filed a lawsuit against Police Constable Benjamin 11712, Police Sergeant James 12496 and the Attorney General. Singh accused the police of assault, malicious arrest, false imprisonment and malicious prosecution.
Special damages
The case was heard by Justice Ramlal who awarded Singh $1,777,700 for general damages; $300,000 as special damages together with interest awarded on both sums at the rate of 6% per annum from October 24, 2006 to October 31, 2013 and thereafter at the rate of 4% per annum until the entire judgment sum is fully paid. Costs were also awarded to the plaintiff in the sum of $150,000.
Justice Ramlal in his ruling and following examination of the relevant sections of the law, said it is mandatory for the police to have reasonable suspicion of the commission of a criminal offence before any power to stop, search, arrest and detain any person can be exercised. Motorists have long complained of arbitrary searches by the police.
Nandlall told Stabroek News that the exercise of the power of the police to stop and search the citizens is one that must be reviewed. “While one recognizes that a police force must always have the power to stop and search the citizenry that power must be exercised against a recognition of the fundamental right of the citizen to move freely since a wrong use of that power will result in a contravention of that constitutional freedom,” he said.
“The law therefore in recognition of this apparent collision of rights and power mandate the police to act only upon reasonable suspicion of the commission of an offence or the reasonable belief that an offence is likely to be committed,” Nandlall said. The AG added that there are situations that require the police to act in a drastic manner. “Of course there are situations where the police may be permitted to act drastically if the particular circumstance require for example if they have information that there is a robbery and they have information that those suspected to be involved in such a robbery are likely to traverse a particular route in that case the erection of police barricade maybe justified,” he said.
Nandlall asserted that the review has nothing to do with Justice Ramlal’s decision. “It is something that is under review and has nothing to do with the decision. This has been my position from the time I assume the position of attorney general,” he said.
Wholly unacceptable
In his ruling, Justice Ramlal described the conduct of the policemen as “wholly unacceptable” and said it renders them incapable of discharging their functions as members of the Guyana Police Force in a manner acceptable to the public. “It is not fair to the taxpayers of this country to “foot the bill” for the excesses of policemen of the ilk of the No. 1 and No. 2 defendants. The time has come for the Commissioner of Police and the Police Service Commission to take the necessary action to weed out this type of policeman from the Guyana Police Force,” Justice Ramlal said.
In his written judgment, he wrote that the Attorney General, the police commissioner and the police service commission ought to consider recovering the monies awarded from Benjamin and James and other such policemen where applicable, by putting in place, systems to surcharge these policemen the amounts awarded and recover the sums from their salary, superannuation benefits or any other monies held by the police force on their behalf. “It is only when this happens one would see any significant reduction in the incidence of such unlawful, unconstitutional and downright outrageous conduct of the ilk of the No.1 and No. 2 defendants,” Justice Ramlal wrote.
The ruling was handed down on October 31, 2013 and the judge noted that while Singh took the stand, he was not cross-examined by counsel for the defence. The defence had no witnesses to call and also closed its case and declined to address the court. Justice Ramlal noted that the Attorney-General and the counsel for the defendants had attempted to settle the case for $500,000 prior to the start of the trial but this sum was rejected as being too low.
Flashing
In his evidence, Singh said that on May 9, 2006, he was driving his car west along Charlotte Street when he stopped at the edge of the road after his engine light started flashing indicating something was wrong. He said that before he could have spoken to his mechanic, a police vehicle pulled alongside with Police Constable Benjamin telling him that the car was obstructing the free flow of traffic. The plaintiff said that before he could explain fully, Benjamin told him to “drive now.”
Singh said that he drove to Croal Street, and parked in the corner when the same vehicle pulled in front of him at a 45 degrees angle. He said that a sergeant directed him to exit the vehicle and upon being questioned as to the reason by Singh, said that they had to search the vehicle. Singh said that he asked what the probable cause for such a search was. By this time, he said, James (the No. 2 Defendant) was standing next to his driver’s side door with his rifle pointed at Singh.
“The No. 2 defendant who pointed the rifle at me said “this is all the reason we need”. I at that point demanded identification from the police. The No. 2 defendant asked “you want dead? Come out you vehicle now.” For fear of my life I exited the vehicle,” Singh said.
He said that he was then grabbed by his shoulders from the back by Benjamin and thrown against the right fender of his vehicle. Benjamin then entered Singh’s vehicle, rummaged through his papers and upon exiting, spoke to James, who informed Singh that he was placing him under arrest and that he should drive his vehicle to Brickdam Police Station.
At the Brickdam Police Station, Singh said that he refused to give a statement when asked and was told by James that if he does not, he would have to spend the night at the station. He said that James took his vehicle keys and said that he was going to search the vehicle again. Singh said that he was not allowed to be present for the search. He said that about half an hour later, James returned and said that the vehicle’s fitness had expired.
Enquiries office
Singh said that at about 5pm, he was moved to the Enquiries Office and subsequently charged. He was placed on $5000 bail and told to appear at the Magistrates’ Court on May 11, 2006. The police kept the vehicle until the next day.
In court, Singh pleaded not guilty to four charges of driving an uncertified motor vehicle; dangerous driving; indecent language and negligently interrupting the free flow of traffic. About one month later, all the charges were dismissed at the “No Case” stage. Singh said that by this time, he had spent about $300,000 in lawyer’s fees and had spent four hours in police custody.
In his ruling, Justice Ramlal said that it was significant that the defence failed to cross-examine the plaintiff and in so doing allowed the court to determine that events as claimed were the truth. “I have no doubt from the plaintiff’s evidence and the pleadings as a whole, that the execution of the police powers by the No. 1 and No. 2 defendants were not only unlawful and unconstitutional but were executed in an arbitrary, outrageous and obnoxious manner which will attract an award of exemplary damages,” he said.
Justice Ramlal noted that under the law, it is mandatory for the police to have reasonable suspicion of the commission of a criminal offence before any power to stop, search, arrest and detain any person can be exercised. “Let me say at the outset that the police have no power to stop, search, arrest and detain any citizen under Section 17 and/or Section 19 unless he has “reasonable grounds for suspicion” that he will find stolen or prohibited articles or that he has “reasonable grounds” to suspect that a person whom he “reasonably suspected” has committed an indictable offence will be found, or that any person has committed a summary or indictable offence in his view or presence or that he has credible and reliable information from someone that a person has committed a summary or indictable offence,” the judge wrote.
In dealing with aspects of the case, Justice Ramlal said that in respect to the charge of “negligently interrupted the free flow of traffic,” this was not provided for under the section under which the charge was laid. That regulation had to do with the “overall length of trailers.” He said that the plaintiff’s evidence suggested that it was the police’s vehicle which impeded or was likely to impede or interrupt the free flow of traffic.
Justice Ramlal also questioned how the police ranks moved from traffic offences to searching for drugs, guns and ammunition. He pointed out that the plaintiff was never informed of what amounted to “reasonable suspicion” in the circumstances and labelled it a guise used to justify the search and arrest in the utmost of subjective manner. “This was about the police exhibition of power with utmost disregard of the Plaintiff’s fundamental rights. This, likewise, strengthens the “malice” with which the police exercised their powers,” he said adding that the stop, search and arrest of the plaintiff on the purported grounds of searching for drugs, guns and ammunition violates not only the Constitution but also the Firearms Act, Cap. 16:05.”
Outrageous
The judge frowned at James’ pointing of the rifle to Singh when the then attorney had asked about probable cause for the search. “This I find was an obnoxious, outrageous and outright abuse of police powers by the No. 2 defendant. Further to this, the Plaintiff asked the No. 2 Defendant for his identification and the No. 2 Defendant said “you want dead, come out you vehicle now.” This is an open threat to the life of the Plaintiff…” Justice Ramlal said. He added that the fact that other police ranks were present at the Brickdam station when the Singh’s rights were being violated makes them guilty as the defendants.
The judge accepted Singh’s evidence that the police patrol was not charged with traffic duties but with responsibilities of enforcing the law as it relates to drugs, guns and ammunition related offences. “It is clear that the No. 1 and No. 2 Defendant, as well as the other ranks present, were acting outside the scope of the duty they were charged with. Neither the No. 1 nor the No. 2 Defendant had any “reasonable suspicion” that the Plaintiff had committed, likely to commit or committed in their presence any “drug, firearm or ammunition” related offence,” he said.
Furthermore, Justice Ramlal said that in relation to the charge of obstruction, it is not an arrestable offence nor is it one punishable by imprisonment. “Even if this offence took place, the police have no authority at law to search and arrest for obstruction of traffic,” he said, while also noting that only if a person fails to comply with a direction not to obstruct the free flow of traffic, only then an offence is committed. Noting the evidence, the judge said that to charge Singh for the offence of obstructing the free flow of traffic must have an element of malice since no offence was committed.
He also said that the purported charge of dangerous driving must necessarily bear similar malice while in relation to the charge of driving an uncertified motor vehicle, it was only discovered at the Brickdam police station and could not justify the “stop” on Charlotte Street, much less justify the search and arrest on Croal Street. “This must be so since there could be no “reasonable suspicion” or “grounds to suspect” the commission of this offence at Charlotte Street or Croal Street. Therefore, the police could not have stopped, searched or arrested the Plaintiff for this reason. Further, driving an “uncertified vehicle” or “obstruction of traffic” are not arrestable offences,” Justice Ramlal noted.
He said that the law only obligates a person to give his name and address and produce his driver’s licence for examination. For offences under that Act, there should be summons or issuance of tickets “rather than arbitrarily search or deprive a person of his liberty, both of which will be a violation of the Constitution as well as a violation of a person’s fundamental rights” as guaranteed by the Constitution, he said.
Justice Ramlal found that the search and arrest was arbitrary, in breach of the Constitution, in breach of the plaintiff’s fundamental rights as guaranteed by the Constitution, and in breach of the police powers under several Acts. The search and arrest was an “outrageous abuse” of police powers and resulted in the plaintiff being falsely imprisoned for about four hours, Justice Ramlal said. “It follows, therefore, that the stop, search, arrest and detention of the Plaintiff were wrong, unlawful and unconstitutional,” he declared.
“The malice flowing from this type of police conduct becomes very pronounced since the police must be taken to have known, or, at the least ought to have known, that their conduct was unlawful and unconstitutional,” he said.
