Jordan v The Attorney General of Barbados

• Jurisdiction: Barbados
• Judge: Husbands, J.
• Judgment Date: 17 September 1982
• Neutral Citation: BB 1982 HC 58
• Docket Number: No. 182 of 1980
• Court: High Court (Barbados)
• Date: 17 September 1982

High Court

Husbands, J.

No. 182 of 1980

Jordan

and

The Attorney General of Barbados

Dr. R. Cheltenham, Dr. F. Ramsahoye, Q.C., and

Miss E: Kentish for the plaintiff.

Mr. H. deB. Forde, Q.C., and Miss S. Osborne for the defendant.

Constitutional law - Fundamental rights and freedoms — Section 8(1) of Barbados Constitution — Whether there was a failure to observe rules of natural justice in that person charged with a criminal offence was not given a fair hearing within a reasonable time.

Husbands, J.

1 In the afternoon of the 1st day of April, 1979, the plaintiff Joseph Jordan was arrested, without a warrant, on suspicion of murder by Police Constable Merritt, a member of the Royal Barbados Police Force. About 8.30 p.m., that evening he was charged by a Divisional Inspector with the murder of Winston Collymore and held in custody. On the following day he was taken before a District Magistrate who informed him of the charge of murder that was laid against him and by warrant under his hand remanded him in custody. He continued to be so remanded during the adjournments of the Preliminary Inquiry into the said charge. At the conclusion of the Preliminary Inquiry on the 26th day of June, 1979, the Magistrate committed the plaintiff to stand trial on the charge of murder at the July assizes for 1979. By warrant the Magistrate remanded the plaintiff in custody until that date.

2 On the 26th day of July, 1979, the Director of Public Prosecutions indicted the plaintiff for manslaughter and later the said day filed with the Registrar of the Supreme Court a notice of discontinuance in the said matter. By letter dated the 18th July, 1979, the Registrar informed the Prison Superintendant of the action taken and the plaintiff was released from custody on the said day.

3 Arising out of these circumstances the plaintiff has filed a writ against the Attorney General of Barbados claiming among other things damages and or pecuniary compensation for –

• (a) false or malicious arrest and detention upon a charge of murder for the period 1 ^st April, 1979 to the 16th July, 1979;

• (b) negligence;

• (c) the violation by the judicial arm of the State –

  • (i) of the plaintiff's right to a fair hearing and determination within a reasonable time of the charge of murder,

  • (ii) of the plaintiff's civil rights and obligations in contravention of s. 18 of the Constitution of Barbados guaranteeing him fundamental rights and freedoms and the protection of the law.

4 Further and in the alternative the plaintiff claims compensation pursuant to s. 13(4) of the said Constitution of Barbados. The evidence of events leading up to the plaintiff's arrest is as follows. About 2 p.m. on 1st April, 1979, responding to a call made by Inspector Clarke, Police Constable Merritt and other members of the Royal Barbados Police Force went on duty to a hill in a district known as Newcastle in the parish of St. John. There the motionless, semi-stiff and apparently dead body of Winston Collymore lay on the ground. There was a wound on the forehead and his clothes-were muddy. Nearby a sickle lay. Collymore's niece informed Police Constable Merritt, in the presence of Inspector Clarke, that earlier that day she saw Collymore going toward a hill at Newcastle and some time later the plaintiff went in the same direction. The plaintiff returned and told her that her uncle Collymore had cut him with a sickle and he was going to the Doctor and that she could go “up there” for her uncle. Following Inspector Clarke's instructions Police Constable Merritt went to Dr. Brathwaite's office in search of the plaintiff. The Doctor's office was closed. About 2.45 p.m. the constable went to the casualty of the Queen Elizabeth Hospital where he saw the plaintiff waiting medical attention. Police Constable Merritt said that because of the plaintiff's injury he came to the conclusion that he had been engaged in a fight with Collymore. He informed the plaintiff that he and his colleague, Police Constable Jones, were plain clothes policemen, that he was assisting in the investigation of the murder of Winston Collymore and that the plaintiff was suspected to be involved. The plaintiff was cautioned and said “That roan attacked me with a sickle and cut me. I kicked him. He and the sickle fall.” Police Constable Merritt then arrested the plaintiff.

5 Referring to the plaintiff's statement Police Constable Merritt said when cross-examined about the reasons for his arrest “It was because of this element plus what I had heard at Newcastle that I decided to arrest him on suspicion of murder …I drew the conclusion from what the plaintiff told me that when the plaintiff kicked Collymore this was responsible for his death.” Evidence of the plaintiff's statement under caution is disputed. The plaintiff says he never kicked Collymore and denies making any statement to this effect. Police Constable Merritt on the other hand deposes that the statement was made and says that it was this which confirmed his earlier suspicion and influenced him to arrest the plaintiff. This is a question of fact to be determined by an assessment and evaluation of the evidence of Police Constable Merritt and the plaintiff. I found the plaintiff to be a bad witness. On this aspect of the case he contradicted himself repeatedly. At one stage he said he had not spoken to any police officer before he left the Hospital; at another he said that he had. On one occasion he said that the ambulance attendant told him about Collymore's death after he had spoken with Police Constable Cain.; on another occasion he said it was before; and yet again he said he spoke to Police Constable Cain before speaking with the ambulance attendant. Again, he said “Police Constable Cain never mention to me that the police had come for me in relation to the death of Collymore” and almost immediately after he said “Yes I would say Police Constable Cain mention to me that they came for me in relation to the death of Collymore. Police Constable Cain did tell me this.” Such being the quality of the plaintiff's evidence, I find it most reliable. I accept Police Constable Merritt's evidence that before his arrest at the Hospital the plaintiff said to him under caution “That man attacked me with a sickle and cut me. I kicked him. He and the sickle fall.”

6 Having so found, I turn next to the first matter that arises in this action, that is to say, to the allegations that “the plaintiff was without warrant wrongfully arrested by a member and/or members of the Royal Barbados Police Force and charged with the capital offence of murder of 70 year old Winston Collymore, and was wrongfully detained in custody continuously until the 16th day of July, 1979,” and that there was no reasonable basis for such arrest.

7 Section 13(1) (e) of the Constitution of Barbados provides –

• “13(1) No person shall be deprived of his personal liberty save as may be authorized by law in any of the following cases, that is to say –

• (e) upon reasonable suspicion of his having committed, or being bout to commit a criminal offence under the law of Barbados;”

8 Counsel for the plaintiff contends that at the time the plaintiff was arrested, Police Constable Merritt could not be said to have been in possession of sufficient information on which to form a reasonable suspicion that the plaintiff had committed the crime of murder. Counsel submits that at the time of the plaintiff's arrest, Police Constable Merritt did not know the cause of Collymore's death and even though he may have come to the conclusion that the plaintiff and Collymore had been fighting, this was not enough to support a reasonable suspicion that the plaintiff had caused Collymore's death in circumstances which amounted to murder. Further, Counsel argues that in arresting the plaintiff without a warrant and within 2 hours of the incident being reported to the Police, Police Constable Merritt, as then informed, was being over-zealous; further investigation was called for in the circumstances, especially since there were no obvious marks of external injury on Collymore's body to suggest a cause of death.

9 Now what information did the police and in particular Police Constable Merritt have at the time of the plaintiff's arrest? First of all it was known that there was bad blood between the plaintiff and Collymore and that threats and counter threats by them had caused the police to warn each of them. Secondly, on the day in question Police Constable Merritt had been told by Collymore's niece, that the plaintiff had said that Collymore had cut him with a sickle and was “up there” and she could go for him. Thirdly, Police Constable Merritt saw Collymore's lifeless body “up there” on the hill. Fourthly, Police Constable Merritt saw the plaintiff at the Hospital seeking medical attention for injuries he had sustained. Fifthly, when Police Constable Merritt informed the plaintiff that he was assisting in the investigation of Collymore's murder and that it was suspected that he was involved, the plaintiff under caution said that Collymore had attacked him and cut him with a sickle and that he, the plaintiff, had kicked Collymore who had fallen.

10 This was the information Police Constable Merritt had when he arrested the plaintiff. Counsel submits that in acting on this material Police Constable Merritt was too previous. Counsel contends that medical opinion should have been sought as to the cause of Collymore's death. In any event says Counsel, it would have been more prudent for Police Constable Merritt to have obtained a Magistrate's warrant for the plaintiff's arrest.

11 There can be no doubt about the common law power possessed by the police in Barbados to arrest without a warrant upon reasonable suspicion of the commission of a felony.

12 Bullen and Leake (3rd Edition, (1868) p. 795 note) states it thus –

“A constable is...