High Court deems ‘stop and search’ an abuse of police power

Dec 08, 2013 News

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– awards plaintiff $2M plus interest

 

By Leonard Gildarie

A groundbreaking High Court ruling and a judgment of over $2M may very well see the Guyana Police Force revisiting the manner in which they conduct business on the roadways.

The judgment on October 31, by Justice William Ramlal, is also likely to raise the debate over the powers of police ranks to stop and search vehicles.
There have been numerous complaints by vehicle owners of harassment by police at roadblocks.
The lawsuit which was filed on October 24, 2006 by then Attorney-at-law, Navindra Singh, against Police Constable Benjamin 11712, Police Sergeant James 12496 and the Attorney General, accused the police of assault, malicious arrest, false imprisonment and malicious prosecution.
Singh took the stand during the seven-year trial of the action but was not cross-examined by the defense.
According to the judgment by Justice Ramlal, prior to the trial, the Attorney General had moved to settle the matter for $500,000 but this was not accepted by Singh and his lawyer.
The judgment is even more significant as the plaintiff, Navindra Singh, is now also a judge in the High Court.
The judgment, against the police ranks and the Attorney General, was in the sum of $1,777,700 for general damages; $300,000 as special damages together with interest awarded on both sums at the rate of six per cent per annum from October 24, 2006 to October 31, 2013. After that 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.
The computations by Judge Ramlal were detailed and cited several cases, taking into account inflation and exchange rates.
In his claims, Singh said that he was an attorney-at-law practicing. On May 9, 2006, he was driving his car along Charlotte Street, Georgetown, when he stopped at the edge of the road after his engine light started flashing indicating something was wrong.
Singh said that before he could have spoken to his mechanic, a police vehicle pulled alongside with Police Constable James telling him that the car was obstructing the ‘free flow of traffic’. The plaintiff said he drove to another street, Croal Street, and parked in the corner when the same vehicle pulled in front of him at a 45 degrees angle.

According to the plaintiff, he was directed to exit his vehicle and upon enquiring, he was told that the ranks wanted to search it. “I then asked him what was his probable cause for such a search. By this time the Number two Defendant (Police Sergeant James) was standing next to my driver’s side door with his rifle pointed at me.
James who pointed the rifle at me said “This is all the reason we need”. I at that point demanded identification from the police. James asked, “You want dead? Come out you vehicle now.”
Assaulted
The lawyer said that fearing for his life, he exited his vehicle. “I was then grabbed by my shoulders from the back by the Number one defendant, Benjamin, and thrown against the right fender of my vehicle.
“Benjamin entered my vehicle through the right front door, rummaged through my papers and exited through the same way and then when he spoke to James, the Number two defendant came to me and informed me that he was placing me under arrest and that I should drive my vehicle to Brickdam Police Station.”
At the Brickdam Police Station, Singh said that he refused to give a statement when asked. After refusing to give a statement, Singh said that he was told by Sergeant James that he may very well have to spend the night at the station.
His car keys were taken with the police saying that another search of the vehicle will be made again. He was not allowed to be present for the search.

Some 30 minutes later, he was told that his vehicle fitness had expired. About 17:00hrs, three hours after his arrest, Singh said he was moved to the Enquiries Office where he was informed that charges will be laid. 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…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 claimed that by this time, he had spent about $300,000 in lawyer’s fees. This is in addition to the four hours in police custody.
No contest
According to Justice Ramlal, 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.
In the judgment, the Court said that its research of the Police Act found that ranks may also stop, search and detain any person who may be reasonably suspected of having or conveying in any manner anything stolen or unlawfully obtained.
The instances must contemplate a situation where an offence has already been committed.
“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 court was critical that one of the charges, “negligently interrupted the free flow of traffic” was not even provided for in the particular regulation that it was filed. Rather, the regulation had to do with the “overall length of trailers.”
The court judgment suggested that the police may have been untruthful when it said that the lawyer’s car was blocking traffic as the statements suggest otherwise.
The court also questioned how the police ranks moved from traffic offences to searching for guns and ammunition.
“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. 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.”
The court also questioned whether the police were empowered to search for guns and ammunition as the law says that a policeman not below the rank of inspector has to be present when such a search is being conducted.
Regarding the claims that one of the police rank when questioned about probable cause by the lawyer, pointed his rifle at the plaintiff and indicated that that was all the reason needed, the court was even more stern.
“This I find was an obnoxious, outrageous and outright abuse of police powers by James. 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…”
The fact that other police ranks were present at the Brickdam station when the rights of the plaintiff were being violated makes them guilty as the defendants, Justice Ramlal said.
Outside the scope
The court found that ranks were 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 their 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.”
With respect to the charge of obstruction, the Judge made it clear that 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.”
The court believed that there was an element of malice in the police’s handling and the charges that were later laid, dismissed and not contested in the civil action.
Even the fact that the lawyer may have been driving an uncertified motor vehicle 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.”
A ticket
Justice Ramlal, in the judgment, said the law only obligates a person to give his name and address and produce his driver’s licence for examination. Rather for offences, 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 Articles 138 to153 inclusive, of the Constitution.”
Ramlal was also highly critical that the resultant search and arrest was an “outrageous abuse” of police powers and resulted in the plaintiff being falsely imprisoned for about four hours.
“It follows, therefore, that the stop, search, arrest and detention of the Plaintiff were wrong, unlawful and unconstitutional.”
The police ranks must have known, or at the least ought to have known, “that their conduct was unlawful and unconstitutional.”
Justice Ramlal said that the conduct of the policemen were wholly unacceptable and renders them incapable of discharging their functions as members of the Guyana Police Force in a manner acceptable to the public.
“Secondly, it is not fair to the taxpayers of this country to “foot the bill” for the excesses of policemen of the ilk of James and Benjamin. The time has come for the Commissioner of Police and the Police Service Commission to take the necessary action to weed out these type of policemen from the Guyana Police Force.”
The Attorney General, the Judge said, should move to recover the monies awarded by putting into place systems to surcharge the policemen the amounts.
“It is only when this happens one would see any significant reduction in the incidence of such unlawful, unconstitutional and downright outrageous conduct of policemen of the ilk of James and Benjamin.

 

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