Tynes v Barr [1994] ICHRL 5 (28 March 1994)

1994-03-28 00:00:00
Americas
Bahamas, The
(1992) 45 WIR 7; [1996] 1 CHRLD 117
For the Plaintiff: FRM Smith; R Johnson
For the Defendant: MF Hamilton: R Deleveaux
The plaintiff, a lawyer, was approached by the defendant, a police officer, whilst
walking along a concrete walkway at the airport on his way to catch a flight he had
chartered in order to interview a witness for a trial scheduled to commence in a few
days time. The defendant requested that he move from the area. After twice
explaining the reasons for being on the walkway and that the pilot of the plane was
waiting for him, the plaintiff was arrested by the defendant, gripped by the back of his
trousers and frog-marched to a police booth within the airport. There he was
subjected to a bodily search by the defendant including the patting through the
plaintiffs clothing of his private area. He was then taken handcuffed in an open jeep,
clearly visible to the public, to the police station where he was forcibly strip-searched
while handcuffed, fingerprinted and placed in a cell. He was denied the use of the
telephone to call a lawyer but was later released on bail charged with offences
relating to trespass contrary to the Civil Aviation Act and for failing to move contrary
to s. 212(8) of the Penal Code. The plaintiff instituted proceedings for damages for
the torts of assault, false imprisonment, malicious prosecution and the breach of his
right to personal liberty as guaranteed under Art. 19 of the Constitution. On the sixth
day of the trial, the defendant conceded liability for the torts of assault and false
imprisonment. On the ninth day the tort of malicious prosecution was conceded. The
individual assaults and batteries alleged by the plaintiff which were not admitted by
the defendant were accepted as proved by the judge due to conflicting evidence
given by police officers other than the defendant. It was also found, due to a lack of
signs warning the public of restricted areas within the airport as required under the
relevant provisions of the Aviation Act, that this charge had no legal basis; and
reasons for the exercise of the power of arrest under the charge of failing to move
did not exist. As the arrest was unlawful, the plaintiff should not have been searched.
The two bodily searches were, further, not covered under the powers of the Criminal
Procedure Code relating to searches as they were unnecessary. They were also ultra
vires these provisions as they were carried out in total disregard for decency.
Judgment was therefore entered for the plaintiff on the issue of liability and the judge
turned to consider the issue of damages and, in addition, whether s. 38 of the Police
Act, allowing fingerprinting before conviction or even committal for trial, was ultra
vires as contrary to the presumption of innocence as guaranteed under Art. 20(2)(a)
of the Constitution.
In entering judgment for the plaintiff and awarding damages, it was held that:
1. Special damages must not only be specifically pleaded but must be strictly
proven. The evidence adduced as to the loss of business, cost of air fares
and cost of taxi fares to the magistrates court as claimed by the plaintiff had
been proved.
2. Damages for the torts of assault, battery and malicious prosecution were at
large (i.e., may include elements for loss of reputation, injured feelings, bad or
good conduct by either party, or punishment). Damages for breach of the
plaintiffs constitutional rights should also be at large as no limit was set on
the amount of damages under Art. 19. Damages in the present case should
include an amount for the humiliation i.e., the injury the plaintiff had endured
to his dignity and pride; mental suffering (as the plaintiff suffered from
claustrophobia); and loss of reputation.

3. The present case fell precisely within the category of an oppressive, arbitrary
or unconstitutional action by servants of the Government under which the
award of exemplary damages would be permissible (Rookes v. Barnard
(1964) AC 1189, HL applied).
4. Exemplary damages should be awarded in view of the arrogant, abusive and
outrageous disregard shown by the police for the law, in particular, their delay
in producing documents; the manner in which the defence was conducted;
and the fact that liability was not conceded until the sixth and ninth days of the
trial and even then with no appropriate apology being offered to the plaintiff.
The police should be made aware of the need to observe the requirements as
to when they may arrest and detain a person without a warrant and the way in
which a person so detained must be humanely treated.
5. While the breach of the plaintiffs constitutional rights was committed in the
course of the other tortious actions of the police, Art. 19(4), which provided
Any person who is unlawfully arrested or detained by any other person shall
be entitled to compensation therefor from that other person, required a
separate assessment in relation to that breach. $40,505 was to be awarded in
special damages; $75,000 for assault, battery and false imprisonment;
$100,000 for malicious prosecution and $40,000 for the breach of the
plaintiffs constitutional rights.
6. The taking of fingerprints for quasi-criminal allegations before trial would be
contrary to the constitutional presumption of innocence. However, even if this
were not the case - since the plaintiff clearly had not been in lawful custody
and s. 38 of the Police Act applied only to a person lawfully in custody - the
police had no right to require him to be fingerprinted. All copies thereof were
to be delivered to the plaintiffs attorney for destruction or be destroyed in his
presence at his request.
Per Curiam
Although counsel for the defendant had no objection to the production of documents
relevant to the issues before the court, the police held off producing them and even
up to the close of the case had not produced all the relevant documents. Unless the
Bahamas had become a police state, that conduct by the higher echelons of the
police force could not be accepted by any court and certainly not by the Supreme
Court which was the guardian of the Constitution. It must be made clear to all
concerned in the administration of justice that the Constitution is predicated on the
rule of law not anyones whim or fancy and that everyone is subject to the law. The
attitude exhibited by those in positions of authority in disciplined forces such as the
police permeates the whole organisation; if they are prepared to show such disregard
for the orders of the Supreme Court it could not be wondered at that the lower ranks
would show disregard for individual subjects rights.