Jaroo v. Attorney General of Trinidad and Tobago (Trinidad and Tobago)  UKPC 5 (4 February 2002)
Privy Council Appeal No. 54 of 2000
Thakur Persad Jaroo Appellant
The Attorney General of Trinidad and Tobago Respondent
THE COURT OF APPEAL OF TRINIDAD AND TOBAGO
JUDGMENT OF THE LORDS OF THE JUDICIAL
COMMITTEE OF THE PRIVY COUNCIL,
Delivered the 4th February 2002
Present at the hearing:-
Lord Hope of Craighead
Lord Scott of Foscote
Sir Christopher Slade
Sir Andrew Leggatt
[Delivered by Lord Hope of Craighead]
“4. It is hereby recognised and declared that in Trinidad and Tobago there have existed and shall continue to exist, without discrimination by reason of race, origin, colour, religion or sex, the following fundamental human rights and freedoms, namely –
(a) the right of the individual to life, liberty, security of the person and enjoyment of property and the right not to be deprived thereof except by due process of law;
(b) the right of the individual to equality before the law and the protection of the law …
5.(1) Except as is otherwise expressly provided in this Chapter and in section 54, no law may abrogate, abridge or infringe or authorise the abrogation, abridgement or infringement of any of the rights and freedoms hereinbefore recognised and declared. …
14.(1) For the removal of doubts it is hereby declared that if any person alleges that any of the provisions of this Chapter has been, is being, or is likely to be contravened in relation to him, then without prejudice to any other action with respect to the same matter which is lawfully available, that person may apply to the High Court for redress by way of originating motion.
(2) The High Court shall have original jurisdiction –
(a) to hear and determine any application made by any person in pursuance of subsection (1); and
(b) to determine any question arising in the case of any person which is referred to it in pursuance of subsection (4), and may, subject to subsection (3), make such orders, issue such writs and give such directions as it may consider appropriate for the purpose of enforcing, or securing the enforcement of, any of the provisions of this Chapter to the protection of which the person concerned is entitled.”
(a) what is the extent of the appellant’s constitutional right under section 4(a);
(b) whether his resort to a constitutional motion was an abuse of process;
(c) if not, whether his constitutional right under section 4(a) has been infringed.The constitutional right
“As to entitlement to possession, there is an instructive analysis in the decision of the Supreme Court of Victoria in Field v Sullivan  VLR 70. The essence of an extended passage in the judgment of Macfarlan J, at pp 84-87, is that if goods are in the possession of a person, on the face of it he has the right to that possession. His right to possession may be suspended or temporarily divested if the goods are seized by the police under lawful authority. If the police right to retain the goods comes to an end, the right to possession of the person from whom they were seized revives. In the absence of any evidence that anybody else is the true owner, once the police right of retention comes to an end, the person from whom they were compulsorily taken is entitled to possession.”
“It is the law of the land which gives the concept of due process its broader meaning – for example, the principles of natural justice, burden of proof etc (Holden v Hardy (1898) 169 US 366) – and shows that it does not necessarily preclude reference in cross-examination to previous convictions: Adamson v California (1947) 332 US 46. This approach of the courts of the United States is fully consistent with the approach adopted by the Constitution of the Republic and those of other Caribbean countries. The due process of law provision fulfils the basic function of preventing the arbitrary exercise of executive power and places the exercise of that power under the control of the judicature … The authorities show that the requirement is that rights and liabilities, criminal and civil, be determined in accordance with the law of the land as a matter of both substance and procedure.”
“The right of property recognised in section 4(a) calls for a balancing exercise. A court investigating an alleged infringement of this right is concerned to see whether in the particular case a fair balance was struck between the requirements of the general interest of the community and the requirements of the protection of the fundamental rights of the individual.”
“Balancing these interests, I should have thought that, in order to justify the taking of an article when no man has been arrested or charged, these requisites must be satisfied:
First: The police officers must have reasonable grounds for believing that a serious offence has been committed – so serious that it is of the first importance that the offenders should be caught and brought to justice.
Second: The police officers must have reasonable grounds for believing that the article in question is either the fruit of the crime (as in the case of stolen goods) or is the instrument by which the crime was committed (as in the case of the axe used by the murderer) or is material evidence to prove the commission of the crime (as in the case of the car used by a bank raider or the saucer used by a train robber).
Third: The police must have reasonable grounds to believe that the person in possession of it has himself committed the crime, or is implicated in it, or is accessory to it, or at any rate his refusal must be quite unreasonable.
Fourth: The police must not keep the article, nor prevent its removal, for any longer than is reasonably necessary to complete their investigations or preserve it for evidence. If a copy will suffice, it should be made and the original returned. As soon as the case is over, or it is decided not to go on with it, the article should be returned.
Finally: The lawfulness of the conduct of the police must be judged at the time, and not by what happens afterwards.”
Abuse of Process
“The notion that whenever there is a failure by an organ of government or a public authority or public officer to comply with the law this necessarily entails the contravention of some human right or fundamental freedom guaranteed to individuals by Chapter I of the Constitution is fallacious. The right to apply to the High Court under section 6 of the Constitution for redress when any human right or fundamental freedom is or is likely to be contravened, is an important safeguard of those rights and freedoms; but its value will be diminished if it is allowed to be misused as a general substitute for the normal procedures for invoking judicial control of administrative action. In an originating application to the High Court under section 6(1), the mere allegation that a human right or fundamental freedom of the applicant has been or is likely to be contravened is not of itself sufficient to entitle the applicant to invoke the jurisdiction of the court under the subsection if it is apparent that the allegation is frivolous or vexatious or an abuse of the process of the court as being made solely for the purpose of avoiding the necessity of applying in the normal way for the appropriate judicial remedy for unlawful administrative action which involves no contravention of any human right or fundamental freedom.”
“The information I have obtained as a result of my inquiries indicates that this motor vehicle is in fact a stolen vehicle bearing a false chassis number of A161-U-001825. I am conducting further inquiries into the matter in order to ascertain, among other things, the identity of the true owner of the motor vehicle. I am of the view that the further inquiries now being undertaken will lead to the apprehension of all those concerned in the theft of the motor vehicle and in charges being preferred against them. The motor vehicle is the fruit of the crime and it is necessary to preserve it as material evidence.”