Title: Flemming v DET. CPL. Myers et al

Citation: JM 1989 CA 171

Facts:

On October 10, 1978 the appellant was taken into custody at the Hope Bay Police Station on the instructions of Detective Corporal Myers who had been conducting investigations into the murder of one Calvin Wilson. The appellant was then asked why he had killed ‘the man’ at Shrewsbury but he denied any participation in such a crime. He was then told that he was being arrested and on the same day was transferred to the Buff Bay Police Station. He remained there until October 23, 1978 when he was taken before the Resident Magistrate’s Court for the first time. During this two-week period he was beaten on the soles of both feet by the police using a stone hammer and suffered other ill-treatment causing him to seek medical attention at the Kingston Public Hospital on two occasions in 1979.

The appellant was remanded into custody after appearing before the Magistrate and was finally discharged on February 9, 1979 after a preliminary hearing into the charge of murder was held.

In an action against the officer involved and the Attorney-General, the appellant claimed false imprisonment, malicious prosecution and assault. The trial judge entered judgment in the appellant’s favour in the sum of $3,000.00 on the claim for assault but dismissed the other two claims, holding that the appellant failed to discharge the burden of proving absence of reasonable and probable cause or malice on the part of Detective Corporal Myers.

An appeal was allowed.

Held:

A unanimous decision was taken to increase the damages awarded for assault from $3,000.00 to $10,000.00 and the claim for false imprisonment was successful. However, on a 2-1 majority it was held that there was no evidence adduced to support a claim of malicious prosecution.

Issues:

1) Was the amount of $3,000.00 awarded on the claim for assault inordinately low? (YES)

2) Was there any reasonable or probable cause for detaining the appellant over the period from the 10th October to 23rd October? (NO)

3) Was the defendant motivated by malice and had no reasonable or probable cause for prosecuting the appellant? (NO)

Holding:

1) An appellant is deserving of punitive damages where the motives and conduct of an officer aggravates the appellant’s injury.

2) In determining the reasonableness of the time that elapses, the circumstances of each case must be the guiding principle and any unreasonable delay in taking an imprisoned person before the Court will result in liability for false imprisonment.

3) Liability for malicious prosecution arises where the plaintiff proves that the defendant acted maliciously or without reasonable and probable cause in prosecuting. It is the act of prosecuting and not of imprisoning or detaining as in false imprisonment which must have been done without reasonable or probable cause.

Reasoning:

2) The action of false imprisonment arises where a person is detained against his will without legal jurisdiction. The legal justification may be pursuant to a valid warrant of arrest or where by statutory powers a police officer is given a power of arrest in circumstances where he honestly and on reasonable grounds believes a crime has been committed. However there is a duty on the part of the police officer to see that the person is brought before the Court within a reasonable time. What is reasonable is a question of fact and must be determined on the circumstances of each case.

In the instant case, the evidence revealed the existence of a statement from a potential witness, the information from which, together with other information received during the investigations formed the basis upon which the appellant was taken into custody. In those

circumstances the Defendant was entitled to arrest the appellant and take him to the police station and consequently the initial arrest would be lawful. Having regard to the evidence that the appellant was detained for 13 days and in the absence of any explanation for the apparently long delay, the Court ought to have found on a balance of probabilities that the defendant had no reasonable or probable cause to detain him for such a long period of time, albeit that the initial arrest was indeed lawful.

3) By virtue of section 33 of the Constabulary Force Act in Jamaica, a plaintiff suing a police officer for malicious prosecution as a result of an act done in the execution of his duty is required to prove that the defendant acted either maliciously or without reasonable and probable cause. For the purpose of malicious prosecution “malice covers not only spite and ill-will but also any motive other than a desire to bring a criminal to justice” – per Lord Devlin in Glinski v. McIver.

There is no evidence revealed in the transcript which establishes on the plaintiff’s case, any spite or ill-will on the part of the Defendant or indeed anything to suggest that the Defendant acted with any motive other than to bring a criminal to justice. It does not necessarily follow that the assault on the Appellant was due to the fact that there was no reasonable and probable cause for believing that the appellant had committed an offence. Apart from his imprisonment and subsequent acquittal, the appellant advanced no evidence to show that the respondent had no reasonable or probable cause for charging him of the offence of murder.

Ratio:

The detention of a citizen by an arm of the state i.e. the police force, without reasonable or probable cause for so doing, is indeed an act which the Court ought to view as a serious breach of the citizen’s right to liberty and one which amounts to liability for false imprisonment.

In evaluating the test of reasonable and probable cause for the purpose of malicious prosecution, it is the act of prosecuting and not of imprisoning or detaining, as in false imprisonment, which must have been done without reasonable or probable cause.

Policy:

Abuses of authority by the police should not go unpunished and situations which potentially seek to limit the power of the police in the execution of their lawful duties should, conversely, not be allowed.