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REPUBLIC OF TRINIDAD AND TOBAGO

IN THE HIGH COURT OF JUSTICE

Claim No. CV2016-00060

BETWEEN

CARLTON TAYLOR

Claimant

AND

ATTORNEY GENERAL OF TRINIDAD AND TOBAGO

Defendant

Appearances:

Lemuel Murphy Attorney at Law for the Claimant

Sasha Sukhram Attorney at Law for the Defendant

JUDGMENT

Introduction

1. In this Claim, filed pursuant to Section 14 of the Constitution, the

Claimant alleges that he suffered an infringement of the right to liberty

and the right not to be deprived thereof, except by due process of law. 1

1 S. 4(a) of the Constitution Ch. 1:01

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2. In the course of this judgment, the Court considered the circumstances

in which there will be a breach of the right to liberty, where the

Claimant had been arrested pursuant to a warrant, which had been

issued under the hand of a Magistrate.

Procedural History

3. By his Claim Form filed on the 12th January, 2016, the Claimant herein

applied for these orders:

“1. A declaration that the arrest and detention of the claimant during

the period 25th to 26th November, 2014 by the State, its servants and/or

agents was in breach of the Claimant’s right under section 4(a) and (b)

of the Constitution of Trinidad and Tobago

2. A declaration that the failure of the State, its servants and/or agents

to inform the Claimant upon his arrest and throughout incarceration,

of his right to retain and instruct a legal adviser of his choice and to

hold communication with him was in breach of the Claimant’s right

under the provisions of section 4(a), 4(b) and 5(2)(h) of the Constitution

of Trinidad and Tobago.

3. An order that monetary compensation be paid to the Claimant

including aggravated and vindicatory damages for all loss suffered by

the Claimant as a result of the State and its Servants and /or agents.

4.Costs

5.Interest at the Statutory rate of 3%

6.Such further relief as this Honourable Court deems fir[sic] in the

circumstances of this case.”

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4. The evidence, in support of and in opposition to the Claim, consisted of

affidavit evidence only. The Claimant relied on his own affidavit filed on

12th January, 2016. The Defendant filed two affidavits: those of affidavits

of Police Constable Deon Clarke and Special Reserve Police Corporal

Jimmy Rojas.2

5. Written Submissions were filed on behalf of the Claimant on the 6th

March, 2017 and on behalf of the Defendant on the 31st March, 2017. The

Claimant then filed submissions in reply on the 31st May, 2017.

FACTS

6. The Claimant was at all material times the father of a minor, Arti Taylor,

who was born on 4th May, 2002. On the 10th January, 2006, Arti’s mother,

Sharmilla Lakheeram sought and obtained an order for the custody of

Arti. It was further ordered that Mr. Taylor pay the sum of $150.00 per

week into court, as maintenance for Arti. These orders were made by Her

Worship Sonia Aleong on the 10th January, 2006

7. On or about the 1st January, 2010, Ms. Lakheeram dropped off Arti at Mr.

Taylor’s house and it was alleged that she had not returned for Arti even

two weeks after having dropped her off.

8. Mr. Taylor, in seeking his daughter’s interest, applied on the 6th April,

2010, to the Family Court for a variation of the order made by Magistrate

Aleong. The application was heard by Magistrate Maharajh-Brown who

made an order, suspending the maintenance order which had been made

2 The affidavits of Deon Clarke and SRP Rojas were both filed on 28th September, 2016.

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by Magistrate Aleong. The terms of order of Magistrate Maharajh-Brown

are set out below:

“WHEREAS on the 18th January, 2010 the applicant made an

application for Variation of a Maintenance Order regarding the minor

child named Arti born on the 4th of May, 2002.

AND WHEREAS pursuant to an Order dated 10th day of January, 2006

made by Her Worship Aleong whereby Carlton Taylor was ordered to

pay the sum of $150.00 per week for the maintenance of Arti born on

the 4th day of May, 2002.

……

THE COURT ORDERS BY CONSENT AS AN INTERIM ORDER that the

order of Her Worship Magistrate Aleong dated the 10th January, 2006

is hereby suspended effective the 15th January, 2010 until further

order”.3

9. On the 4th August, 2010, Her Worship Maharajh-Brown made the final

order granting custody of Arti to Mr. Taylor, with liberal access granted to

Ms. Lakheeram. The terms of the order are set out below:

“WHEREAS on the 18th day of January 2010 the applicant made an

application for a Variation of a Legal Custody Order regard the minor

child named Arti born on the 4th day of May 2002.

AND WHEREAS pursuant to an Order made by Her Worship Magistrate

Aleong dated the 10th day of January, 2006 made by her Worship

Magistrate Aleong whereby legal custody of the minor child Arti born

on the 4th day of May 2002 was granted to the applicant Sharmila

3 See C.T.2 annexed to the supporting affidavit of the Claimant filed on 12th January, 2016.

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Lakheeram with effect from the 10th day of July 2006, Access to the

said child was granted to the respondent on Sunday from 9:00a.. to

5:00p.m. with effect from the 16th day of July, 2006

UPON READING the Application and the Probation Officer’s report

AND UPON HEARING the applicant being present in Court with his

Attorney-at-Law, the respondent being absent from Court and

unrepresented

THIS COURT ORDERS AS A FINAL ORDER the Order of Her Worship

Magistrate Aleong dated 10th day of July, 2006 is hereby varied to wit:

the applicant Carlton Taylor is granted legal custody of the minor child

Arti born on the 4th day of May 2002 with effect from the 4th day of

August, 2010 until the said minor attains 18 years or until further order

of the Court. The respondent Sharmila Lakheeram is granted liberal

access to the said minor with effect from the 4th day of August, 2010

until the said minor attains 18 years or until further order of the Court”4

10. Some four years later, on the 11th November, 2014, Special Reserve

Police Corporal Jimmy Rojas, was attached to the Court and Process

Branch at the Morvant Police Station, where he was responsible for

warrants and summonses. SRP Rojas conducted a routine examination of

the Affiliation Maintenance Register, where affiliation-maintenance

warrants are entered. SRP Rojas became aware of a warrant bearing the

name Carlton Taylor5.

4 See exhibit “C.T.3” of the affidavit of Carlton Taylor 5 The warrant of apprehension is exhibited as “JR1”. It is dated the 30 October, 2014 in respect of arrears from 14 January, 2010 to 4 August, 2010. The full terms of the warrant are set out.

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11. Thereafter, on the 21st November, 2014, SRP Rojas, together with Police

Constable Deon Clarke, attired in plain clothes, visited the home of Mr.

Taylor at around 8:00a.m. Mr. Taylor was not at home. P.C. Clarke and

SRP Rojas spoke to the Claimant’s son and asked him to inform the

Claimant that “Clarke” was here.

12. It was on the 24th November, 2014, that Mr. Taylor, voluntarily visited the

Morvant Police Station, where he learned that there was a warrant for his

arrest. SRP Rojas informed him that the warrant concerned maintenance

arrears owed to Ms. Lakheeram for the period 14th January, 2010 to 4th

August, 2010.

13. Mr. Taylor was surprised by this, and informed the officers that he did

not owe any monies as he now had custody of Arti. SRP Rojas asked the

Claimant whether he had any documentation. To this Mr. Taylor

responded by saying that he would have to look for it. Mr. Rojas informed

the Claimant that he would have to him to Court. Mr. Taylor was placed

in the warrants office and ten minutes later, he was taken to the Family

Court where he was placed in a cell.

14. SRP Rojas and PC Clarke deposed that they were not responsible for Mr.

Taylor’s ‘detention’ at the Family Court.

15. Mr. Taylor spent most of the day incarcerated at the Family Court cell. He

was informed that there was no magistrate to deal with his case. At

around 3p.m., he appeared before the Justice of the Peace and at 3:30

p.m., Mr. Taylor was granted his own bail. The matter was adjourned to

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the 26th November, 2014. At the hearing of the 26th November, 2014, the

matter was dismissed6.

LAW AND DISCUSSION

16. In these proceedings, the Court had the benefit of erudite and well-

researched submissions from both teams of learned attorneys-at-law.

The chief issue which arose from those submissions and from the

undisputed facts was whether the Claimant, Mr. Taylor, had indeed

suffered a contravention of his fundamental rights as a result of his

incarceration at the Family Court on 25 November, 2014, so as to entitle

him to relief under section 14 of the Constitution Ch 1:01. An ancillary

issue, which arose, was whether the Claimant had access to an alternative

remedy.

17. In Maharaj No 2.7, a majority of their Lordships declared that Maharaj, a

barrister-at-law had suffered a contravention of the right to liberty as

enshrined at section 1(a) of the Independence Constitution8,when he was

committed to serve a term of 7 days imprisonment for contempt of court.

18. In Maharaj9, Lord Diplock established the boundaries of the right of an

aggrieved person to approach the Court under section 14 Constitution10

and decreed that the constitutional right was not to a legal system which

6 See exhibit “C.T.4” annexed to the affidavit of Carlton Taylor 7 Ramesh Lawrence Maharaj v Attorney-General Of Trinidad And Tobago (No 2) (1978) 30 WIR 310 8 Section 1(a) of the Constitution 1962 enshrines the right to liberty and the right no to be deprived thereof except by due process of law. 9 Ibid 10 The Constitution of Trinidad and Tobago Ch 1:01

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is infallible, but one that is fair. These words of Lord Diplock resounded

throughout the decades that followed and were applied by both High and

Appellate Courts.

19. Many years later, in Independent Publishing Co. Ltd11, their Lordships

revisited the words of Lord Diplock and gave fresh consideration to their

meaning. The well-known facts of Independent Publishing Ltd.,

concerned the committal for contempt of a journalist, who had breached

an order which prohibited the media from publishing, referring to, or

commenting on the trial for murder of the infamous Nankissoon

Boodram, who was eventually convicted and executed by hanging.

20. In Independent Publishing Co. Ltd, Lord Brown of Eaton-under-Haywood

considered the decision of the Privy Council in Hinds v. Attorney General

of Barbados12and Forbes v. Attorney General of Trinidad and Tobago13.

Lord Brown had this to say:

“In deciding whether someone’s s(4)(a) right not to be deprived expect

by due process of law, it is the legal system as a whole that must be

looked at , not merely part of it.”14

21. Six years later, Bereaux JA reconsidered the ambit of the right to a legal

system that is fair. In Myrtle Crevelle v The Attorney General15, the

Claimant (who had died by the date of the hearing of the appeal) was

arrested on the authority of bench warrant, issued by a magistrate,

11 Independent Publishing C. Ltd. v. The Attorney General of Trinidad and Tobago (2004) 65 WIR 338 12 Hinds v. Attorney General of Barbados [2002] 2 WLR 470 13 Forbes v. The Attorney General of Trinidad and Tobago [2002] UKPC 21 14 Independent Publishing C. Ltd. v. The Attorney General of Trinidad and Tobago (2004) 65 WIR 338 at paragraph 88 of the judgment. 15 Myrtle Crevelle v The Attorney General Civ. App. No. 45 of 2007

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before whom the attorney-at-law had an outburst. The attorney-at-law

had been arrested at 10:00 a.m. on October, 1, 1999 and remained in

custody while he secured his own bail at 4:00p.m.

22. Crevelle successfully challenged the legality of the charge by way of

judicial review. He then instituted proceedings` claiming that his

constitutional rights had been infringed.

23. Justice of Appeal Bereaux delivered a written judgment, with which the

other two appellate judges agreed. Justice Bereaux referring both to

Maharaj No. 216 and Independent Publising Co. Ltd17 found these

authorities distinguishable from the facts before him. Bereaux JA had this

to say:

“ The facts of this case are distinguishable from those of

Maharaj No. 2 and Independent Publishing. In this case, the

Appellant was never convicted of an offence. As such the

analogy drawn by Lord Diplock and Lord Brown in respect of a

convicted person who is vindicated on appeal but who loses his

liberty through a fair but infallible process cannot strictly be

made here. The matter never proceeded to conviction. The

Appellants imprisonment was consequent upon the issue of a

warrant of arrest made by the Magistrate.18

The Court of Appeal allowed the appeal.

16The Attorney General of Trinidad and Tobago, Lisa Ramsumair-Hinds v. Russell David Civil Appeal No. P028 of 2015 17 Independent Publishing C. Ltd. v. The Attorney General of Trinidad and Tobago (2004) 65 WIR 338 18

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24. As in Crevelle19, Mr. Taylor, in these proceedings was never in jeopardy of

a conviction. He was arrested pursuant to a warrant for an alleged non-

compliance with an order of the Court. So, as in Crevelle Mr. Taylor would

have had no opportunity to appeal.

25. On the 12th April, 2017, Justice Rajkumar JA delivered a judgment in The

Attorney General of Trinidad and Tobago, Lisa Ramsumair-Hinds v.

Russell David20 , a judgment with which Archie CJ and Bereaux JA agreed.

In Russell David, the Claimant/Appellant had paid $150.00 as a fixed

penalty under the Motor Vehicles and Road (Traffic Enforcement and

Administration) Act.

26. Notwithstanding his paying the fixed penalty, a summons was issued for

his attendance in respect of the charge. The Appellant did not obey the

summons, presumably because he knew that the fixed penalty had been

paid. A warrant was issued under the hand of the Magistrate Lisa

Ramsumair-Hinds, in respect of the Appellant’s non-attendance in

response to the summons. The warrant was executed on the Appellant at

him home at 2:30 a.m. on 19 March, 2010. Justice Rajkumar, JA held that

no action would properly lie against the magistrate, who was fully

protected by the Magistrate’s Protection Act Ch 6:03.

27. Nonetheless Rajkumar, JA, held that the matter did not end with the

immunity of the magistrate. The learned Justice of Appeal had this to say:

“While the magistrate is insulated from personal liability by the

Magistrates Protection Act, the circumstances giving rise ultimately to

19 Myrtle Crevelle v The Attorney General Civ. App. No. 45 of 2007 20 Civil Appeal No. P028 of 2015

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the arrest and detention of the claimant arise as a result of actions of

the State through its agents in failing to ensure that the

Claimant/Respondent, having paid the fine of $150.00 (specified in the

notice as the only penalty for the offence of illegal

parking), was protected from further consequence and liability.

Notwithstanding the Magistrates Protection Act, and the protection of

the magistrate from personal liability, the circumstances in this case

are capable of giving rise to a claim directly against the State for

constitutional relief.”21

28. At paragraph 8.f. of judgment, Rajkumar JA concluded:

“f. In this case, having paid the fixed penalty of $150.00 provided on

the notice of opportunity to pay fixed penalty (ticket) the Respondent

was fully entitled to consider that, as stated on the face of the ticket

itself, that no proceeding will be taken and any liability to conviction

for the offence will be discharged. He was also fully entitled to consider

that having paid that penalty of $150.00 he would not be subjected to

arrest on a warrant at his home at 2.30 am, or detention in custody

until 10.30 am on any basis that could allegedly arise from the issue of

this notice / ticket.”

Justice of Appeal Rajkumar relying on the decision of Justice Bereaux JA

in Crevelle, distinguished Independent Publishing Co. Ltd.

21 The Attorney General of Trinidad and Tobago, Lisa Ramsumair-Hinds v. Russell David Civil Appeal No. P028 of 2015 at page 4, paragraph 8(b)

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29. Learned attorneys-at-law for the Claimants referred to Russell David22 in

their Reply Submissions. Learned attorneys-at-law for the Respondent/

Attorney General, invited by the Court to comment on Russell David23,

indicated by e-mail that were guided by the decision in Russell David and

chose not to file further submissions.

30. Applying Russell David24 to the facts of this case, it is my view that the

warrant, pursuant to which Mr. Taylor was arrested was issued without

any jurisdiction, since the time period, in respect of which the warrant

was issued followed the suspension of the maintenance order by

Magistrate Maharajh-Brown. Magistrate Maharajh-Brown, by her order

of 6th April, 2010, suspended the maintenance order retroactively with

effect from the 15th January, 2010. An examination of the Warrant reveals

that it had been issued for arrears of $4,329.00, in respect of the period,

14th January, 2010 to 4th August, 2010, a period of 28 weeks and 6 days.

However, save for one day 14th January, 2010, the maintenance order was

suspended and not in force for the stipulated time period.

31. Learned Attorneys at Law for the Defendant have not argued that the

warrant was properly issued in respect of a single day: 14th January, 2010,

in respect, of which the maintenance order had not been suspended by

Magistrate Maharajh-Brown.

32. In my view, it was wise of the learned attorneys at law for the Defendant

to avoid an argument in this vein, since the warrant, was issued, in respect

22 The Attorney General of Trinidad and Tobago, Lisa Ramsumair-Hinds v. Russell David Civil Appeal No. P028 of 2015 23 Ibid 24 Ibid

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of a sum far in excess of that payable for the one day. Even if it could have

been shown that Mr. Taylor owed Ms. Lakheeram one day’s maintenance,

the warrant contained an error on its face and was invalid.

33. Accordingly as in Russell David , the Magistrate or Justice, issuing the

warrant, upon which Mr. Taylor was arrested, did so without jurisdiction,

since Mr. Taylor was not required to make payments for the time period

identified in the warrant.

34. Moreover, as in Russell David, Mr. Taylor would have been entitled to

consider that having obtained a variation of the order, he was no longer

liable to pay maintenance and that he would not be subject to arrest and

detention.

35. As in Russell David, no blame could be ascribed to the arresting officer or

to the judicial officer who issued the warrant. Blame should be borne by

the unnamed clerical officer or officers, whose function it was to ensure

that the order upon which the warrant was being issued, was still

subsisting. Such unnamed and unidentified clerical officers were agents

of the State. Accordingly as, in Russell David, ultimately the arrest and

detention of Mr. Taylor arose as a result of the action or inaction of “the

State through its agents”, in failing to ensure that Mr. Taylor, having

obtained a suspension of the order, was protected from further liability.25

36. Learned attorneys-at-law for the Defendants have contended that Mr.

Taylor had an alternative remedy in negligence. In spite of the skill with

which their Written Submissions were crafted, it is my view that a claim

in negligence would have been doomed to fail, since it would have been

25 See Russel David v Attorney General the Judgment of Rajkumar JA at paragraph 8. b.

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impossible to identify the clerical officer, in respect of whose negligence

the State would have been vicariously liable. It would have been

impossible to prove two of the well-known elements of the tort of

negligence, that is to say, the existence of a duty of care, on the part of

an unknown, unidentified person and a breach of that duty by the

unnamed unidentified person. Accordingly, it is my view that the

argument that there was an alternative remedy ought to be and is hereby

rejected.

37. Learned attorneys-at-law for the Attorney General also contended that

the Claimant must have known of his right to be informed of the right to

an attorney, upon arrest, since he was a police officer. It is my view that

the Court is not entitled to assume that the Claimant had any such

knowledge. Accordingly, I hold that the Claimant was entitled to be

informed of his right to an attorney-at-law and his not having been so

informed constituted an infringement of his right under section 4(2),

5(2)(h) of the Constitution.

RELIEF

38. Having found that the Claimant suffered a contravention of his

fundamental rights, I proceed to consider the issue of compensation. I

agree that compensation uner section 14 of the Constitution is not at

large. Having regard to the authorities which were offered by both teams

of learned attorneys-at-law, it was my view that the Claimant would be

vindicated by an award of $30,000.00.

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39. I agree with learned attorneys-at-law for the Attorney General that there

should be no award for loss of earnings. Loss of earnings, being special

damages, should have been specially proved.

ORDERS

1. A declaration that the arrest and detention of the claimant during the period

25th to 26th November, 2014 by the State, its servants and/or agents was in

breach of the Claimant’s right under section 4(a) and (b) of the Constitution

of Trinidad and Tobago

2. A declaration that the failure of the State, its servants and/or agents to

inform the Claimant upon his arrest and throughout incarceration, of his

right to retain and instruct a legal adviser of his choice and to hold

communication with him was in breach of the Claimant’s right under the

provisions of section 4(a), 4(b) and 5(2)(h) of the Constitution of Trinidad and

Tobago.

3. An order that the Defendant pay to the Claimant, the sum of $30,000.00 as

vindicatory damages for all loss suffered by the Claimant as a result of the

State and its Servants and /or agents.

4. Costs to be assessed by the Registrar of the Supreme Court.

Date of Delivery: 5 November, 2018

Mira Dean-Armorer

Judge