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Cite as: [2006] AC 328, [2005] UKPC 15, [2006] 1 AC 328, [2005] 2 WLR 1324

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Attorney General of Trinidad and Tobago v. Ramanoop (Trinidad and Tobago) [2005] UKPC 15 (23 March 2005)

ADVANCE COPY

Privy Council Appeal No. 13 of 2004

The Attorney General of Trinidad and Tobago Appellant

v.

Siewchand Ramanoop Respondent

FROM

THE COURT OF APPEAL OF

TRINIDAD AND TOBAGO

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JUDGMENT OF THE LORDS OF THE JUDICIAL

COMMITTEE OF THE PRIVY COUNCIL,

Delivered the 23rd March 2005

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Present at the hearing:-

Lord Nicholls of Birkenhead

Lord Hoffmann

Lord Scott of Foscote

Baroness Hale of Richmond

Lord Brown of Eaton-under-Heywood

[Delivered by Lord Nicholls of Birkenhead]

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This appeal raises the question whether exemplary damages may be awarded by way of redress for contravention of the human rights provisions enshrined in the Constitution of Trinidad and Tobago. The judge, Bereaux J, held they could not. The Court of Appeal by a majority reversed that decision: Sharma CJ and Kangaloo JA, Warner JA dissenting.

The proceedings relate to some quite appalling misbehaviour by a police officer. On the evening of 10 November 2000 Siewchand Ramanoop, a man aged 35, was in his local bar. As he was about to leave he had an altercation with a "thin, tall, dark man of East Indian descent". He left and went home. Later on the same evening when he was at home, at about 10.45 pm, he heard a car and someone calling his name. He opened the door and was confronted by two men, one a uniformed policeman and the other the "Indian man". Before he could say anything the policeman, PC Rahim, slapped him across the face and neck, turned him around, handcuffed him, and started beating him. PC Rahim cuffed and slapped Mr Ramanoop for 5-10 minutes. While doing so PC Rahim kept shouting "Yuh want tuh fucking interfere with police? Take dat. I will manners yuh. Doh ever interfere with police". Mr Ramanoop was helpless because he was handcuffed.

At this time Mr Ramanoop was clothed only in his underwear. He was pushed back into his house where PC Rahim continued to beat him for a further 2-3 minutes. PC Rahim told him to take a shirt and pants because "he was going to lock me up". PC Rahim refused to let Mr Ramanoop get dressed properly. He took Mr Ramanoop outside and shoved him into the back seat of a car and sat beside him. The car was driven by the "Indian man". While Mr Ramanoop was being driven to Gasparillo police station PC Rahim constantly cuffed and slapped him. He asked PC Rahim which police he had interfered with, but PC Rahim kept saying he would teach him a "lesson for interfering with police".

At the police station PC Rahim rammed Mr Ramanoop's head against the wall, causing a wound from which blood gushed at once. Mr Ramanoop was then handcuffed to an iron bar. PC Rahim taunted him ("Who buss your head?"), and poured rum over his head, causing the wound to burn and blood and rum to run into his eyes. He was taken to a bathroom and soaked in the shower while PC Rahim spun him around by the shoulders until he was dizzy.

Later Mr Ramanoop was allowed to get dressed. He was interviewed by PC Rahim who asked him to initial a written document. He refused. PC Rahim started slapping his head, and told him "If you doh sign dis yuh cyah fucking leave dis station her tonite". Mr Ramanoop was losing blood and feeling weak and dizzy. He signed the document as instructed because he was frightened at what PC Rahim might do to him if he did not. PC Rahim then apologised for "bussing" Mr Ramanoop's head but his wife was pregnant and he was "under some pressure". Mr Ramanoop was then taken home by the "Indian man". He arrived home at about 2 am.

Mr Ramanoop instituted these proceedings against the Attorney General by way of originating motion on 15 January 2001. He claimed declarations and damages, including exemplary damages. The motion was supported by an affidavit made by Mr Ramanoop setting out the facts summarised above.

The proceedings came before the court on 26 March 2001. The Attorney General did not dispute any of the facts. Bereaux J, with the consent of the Attorney General, made a number of declarations. The principal declarations were to the effect that Mr Ramanoop's arrest and imprisonment were unconstitutional and in breach of his rights under section 4(a) of the Constitution. So also was PC Rahim's assault upon Mr Ramanoop during this arrest and period of imprisonment. Section 4(a) recognises and declares the fundamental human right of an individual to liberty and security of the person.

On 2 May 2001 Bereaux J delivered a reserved judgment on the amount of damages payable. He awarded Mr Ramanoop $18,000 for the deprivation of his liberty for two hours and $35,000 for the assaults. He held he had no jurisdiction to award exemplary damages. PC Rahim's conduct was outrageous and in an ordinary action would attract an award of exemplary damages. But he was bound by observations made by Lord Salmon in Attorney General of St Christopher, Nevis and Anguilla v Reynolds [1980] AC 637. Even if not bound he considered exemplary damages were inappropriate and superfluous in proceedings brought under section 14 of the Constitution.

In the Court of Appeal the leading judgment was given by Sharma CJ. He said that section 14 of the Constitution contains no limit on the forms of redress the court may direct. In order to vindicate constitutional rights there is a need for a remedy additional to declarations and compensatory damages. In her dissenting judgment Warner JA noted that payment of compensation is a form of redress under section 14(1). But an award of exemplary damages cannot be ancillary to redress, because "nothing in section 14 speaks to punishment": para 18. She distinguished from exemplary damages, of which a punitive element is an essential characteristic, an award of an amount which would discourage future breaches of the same kind. The court can make an award of the latter character: para 2. The Court of Appeal allowed Mr Ramanoop's appeal and remitted the matter to a judge for the assessment of "exemplary/vindicatory" damages.

Chapter I of the Constitution makes provision for the recognition and protection of fundamental human rights and freedoms. Section 14 is directed at the enforcement of these entrenched rights and freedoms:

"(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."

Turning to the authorities their Lordships mention first, in order to put on one side, two decisions of the Privy Council. Neither affords any real assistance on the present issue. In Maharaj v Attorney-General of Trinidad and Tobago (No 2) [1979] AC 385 the predecessor Constitution of Trinidad and Tobago was under consideration, but for present purposes the relevant provisions were the same. Lord Diplock, at page 400, left open the question whether monetary compensation by way of redress can ever include an award of what in a case of tort would be called exemplary or punitive damages. In Attorney General of St Christopher, Nevis and Anguilla v Reynolds [1980] AC 637 the Board considered one aspect of the provision in the then Constitution of St Christopher, Nevis and Anguilla which corresponded to section 14 of the present Constitution of Trinidad and Tobago. The scope of the expression "redress" was not the subject of decision or express observation.

This calls for a little elaboration. In that case Reynolds had been wrongfully imprisoned. He brought proceedings claiming (1) damages for false imprisonment and (2) compensation pursuant to section 3(6) of the Constitution: see [1980] AC 637, 662F. Section 3(6) provided that anyone unlawfully arrested or detained was entitled to "compensation". The Court of Appeal's award of damages included a small sum as exemplary damages. The Board accepted, at page 662E, that exemplary damages do not fall within the ambit of "compensation". But section 16 of the Constitution of St Christopher, Nevis and Anguilla, corresponding to section 14 of the Constitution of Trinidad and Tobago, expressly provided that redress might be sought under the Constitution without prejudice to any other available remedy. Thus the court had jurisdiction to award exemplary damages at common law. On that basis, it seems, the Board upheld the award of exemplary damages. Lord Salmon did not in terms express a view on the scope of the expression 'redress'. But their Lordships can readily understand how it has come about that this decision of the Board has been taken to be indicative of a restrictive interpretation of the court's ability to award damages under section 14.

In Trinidad and Tobago the Court of Appeal made observations on this issue in Jorsingh v Attorney General (1997) 52 WIR 501. The extent of the court's jurisdiction did not arise for decision. But de la Bastide CJ and Sharma JA both correctly prophesied that this issue would come before the Privy Council again. They expressed the hope their Lordships' Board would then re-examine this issue and the "tentatively austere" approach to damages adumbrated by Lord Diplock.

Encouraged by these observations courts in Trinidad and Tobago have subsequently awarded exemplary damages on claims for constitutional relief: for instance, Kangaloo J in Ramesar v Attorney General of Trinidad and Tobago HCA S-895 of 1992 (20 January 1999), and Gregory Smith J in Abraham v Attorney General of Trinidad and Tobago HCA 801 of 1997 (26 February 1999). Conversely, in Jones v Attorney General of Trinidad and Tobago HCA 19 of 1998 Bereaux J took the same view on this issue as he did in the present case.

In the present case Mr Dingemans QC on behalf of the Attorney General submitted that "redress" in section 14 permits the court to make awards of damages but only by way of compensation. Damages for breach of a constitutional right should vindicate that right and are a matter for the court's discretion. But it is not appropriate to punish the state or an individual by way of constitutional relief and the court has no jurisdiction to do so.

Their Lordships were helpfully referred to a number of authorities where courts in other countries have considered the scope of the remedies a court may order in respect of constitutional infringements. Of particular assistance is the New Zealand jurisprudence, notably observations of Cooke P in Simpson v Attorney-General (Baigent's case) [1994] 3 NZLR 667, 678, and the judgment of Thomas J in Dunlea v Attorney-General [2000] 3 NZLR 136, 152.

Their Lordships view the matter as follows. Section 14 recognises and affirms the court's power to award remedies for contravention of chapter I rights and freedoms. This jurisdiction is an integral part of the protection chapter I of the Constitution confers on the citizens of Trinidad and Tobago. It is an essential element in the protection intended to be afforded by the Constitution against misuse of state power. Section 14 presupposes that, by exercise of this jurisdiction, the court will be able to afford the wronged citizen effective relief in respect of the state's violation of a constitutional right. This jurisdiction is separate from and additional to ("without prejudice to") all other remedial jurisdiction of the court.

When exercising this constitutional jurisdiction the court is concerned to uphold, or vindicate, the constitutional right which has been contravened. A declaration by the court will articulate the fact of the violation, but in most cases more will be required than words. If the person wronged has suffered damage, the court may award him compensation. The comparable common law measure of damages will often be a useful guide in assessing the amount of this compensation. But this measure is no more than a guide because the award of compensation under section 14 is discretionary and, moreover, the violation of the constitutional right will not always be co-terminous with the cause of action at law.

An award of compensation will go some distance towards vindicating the infringed constitutional right. How far it goes will depend on the circumstances, but in principle it may well not suffice. The fact that the right violated was a constitutional right adds an extra dimension to the wrong. An additional award, not necessarily of substantial size, may be needed to reflect the sense of public outrage, emphasise the importance of the constitutional right and the gravity of the breach, and deter further breaches. All these elements have a place in this additional award. "Redress" in section 14 is apt to encompass such an award if the court considers it is required having regard to all the circumstances. Although such an award, where called for, is likely in most cases to cover much the same ground in financial terms as would an award by way of punishment in the strict sense of retribution, punishment in the latter sense is not its object. Accordingly, the expressions "punitive damages" or "exemplary damages" are better avoided as descriptions of this type of additional award.

For these reasons their Lordships are unable to accept the Attorney General's basic submission that a monetary award under section 14 is confined to an award of compensatory damages in the traditional sense. Bereaux J stated his jurisdiction too narrowly. The matter should be remitted to him, or another judge, to consider whether an additional award of damages of the character described above is appropriate in this case. Their Lordships dismiss this appeal with costs.

Misuse of the court's process

The Attorney General raised no objection to these proceedings taking the form of an originating motion seeking constitutional relief rather than a common law action for damages in respect of Mr Ramanoop's unlawful detention and the assaults made upon him by PC Rahim. The Attorney General was right to do so. Police officers are endowed by the state with coercive powers. This case involves a shameful misuse of this coercive power: compare the approach adopted by the Board in Thornhill v Attorney-General [1981] AC 61, 74.

Had the facts set out by Mr Ramanoop in his affidavit been disputed it might well have been appropriate for the court to direct that the proceedings should continue as though they had been by way of writ. An originating motion is a summary procedure. Save in the simplest of cases it is ill-suited to decide substantial factual disputes. Satisfactory resolution of such disputes usually requires pleadings, discovery and oral evidence. That situation did not arise in this case. But Mr Ramlogan invited the Board to dispel the uncertainty which he said has arisen since the decision of the Board in Jaroo v Attorney-General of Trinidad and Tobago [2002] 1 AC 871 and the subsequent decision of the Court of Appeal in George v Attorney-General of Trinidad and Tobago (8 April 2003, unreported).

The starting point is the established principle adumbrated in Harrikissoon v Attorney-General of Trinidad and Tobago [1980] AC 265. Unlike the constitutions of some other Caribbean countries, the Constitution of Trinidad and Tobago contains no provision precluding the exercise by the court of its power to grant constitutional redress if satisfied that adequate means of legal redress are otherwise available. The Constitution of The Bahamas is an example of this. Nor does the Constitution of Trinidad and Tobago include an express provision empowering the court to decline to grant constitutional relief if so satisfied. The Constitution of Grenada is an instance of this. Despite this, a discretion to decline to grant constitutional relief is built into the Constitution of Trinidad and Tobago. Section 14(2) provides that the court "may" make such orders, etc, as it may consider appropriate for the purpose of enforcing a constitutional right.

In Harrikissoon the Board gave guidance on how this discretion should be exercised where a parallel remedy at common law or under statute is available to an applicant. Speaking in the context of judicial review as a parallel remedy, Lord Diplock warned against applications for constitutional relief being used as a general substitute for the normal procedures for invoking judicial control of administrative action. Permitting such use of applications for constitutional redress would diminish the value of the safeguard such applications are intended to have. Lord Diplock observed that an allegation of contravention of a human right or fundamental freedom does not of itself entitle an applicant to invoke the section 14 procedure if it is apparent this allegation is an abuse of process because it is 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": [1981] AC 265, 268 (emphasis added).

In other words, where there is a parallel remedy constitutional relief should not be sought unless the circumstances of which complaint is made include some feature which makes it appropriate to take that course. As a general rule there must be some feature which, at least arguably, indicates that the means of legal redress otherwise available would not be adequate. To seek constitutional relief in the absence of such a feature would be a misuse, or abuse, of the court's process. A typical, but by no means exclusive, example of a special feature would be a case where there has been an arbitrary use of state power.

That said, their Lordships hasten to add that the need for the courts to be vigilant in preventing abuse of constitutional proceedings is not intended to deter citizens from seeking constitutional redress where, acting in good faith, they believe the circumstances of their case contain a feature which renders it appropriate for them to seek such redress rather than rely simply on alternative remedies available to them. Frivolous, vexatious or contrived invocations of the facility of constitutional redress are to be repelled. But "bona fide resort to rights under the Constitution ought not to be discouraged": Lord Steyn in Ahnee v Director of Public Prosecutions [1999] 2 AC 294, 307, and see Lord Cooke of Thorndon in Observer Publications Ltd v Matthew (2001) 58 WIR 188, 206.

Over the years admonitions against the misuse of constitutional proceedings have been repeated: Chokolingo v Attorney-General of Trinidad and Tobago [1981] 1 WLR 106, 111-112, and Attorney-General of Trinidad and Tobago v McLeod [1984] 1 WLR 522, 530. These warnings were reiterated more recently by Lord Bingham of Cornhill in Hinds v Attorney-General of Barbados [2002] 1 AC 854, 870, para 24.

Despite these warnings, abuse of the court's jurisdiction to grant constitutional relief has been "unrelenting" until brought to a "sudden and welcome halt" by the decision of the Board in Jaroo v Attorney-General of Trinidad and Tobago [2002] 1 AC 871: see Hamel-Smith JA in George v Attorney-General of Trinidad and Tobago (8 April 2003, unreported). The explanation for the continuing misuse of this jurisdiction seems to be that proceedings brought by way of originating motion for constitutional relief are less costly and lead to a speedier hearing than proceedings brought by way of writ.

From an applicant's point of view this reason for seeking constitutional relief is eminently understandable. But this reason does not in itself furnish a sufficient ground for invoking the constitutional jurisdiction. In the ordinary course it does not constitute a reason why the parallel remedy at law is to be regarded as inadequate. Proceedings brought by way of constitutional motion solely for this reason are a misuse of the section 14 jurisdiction.

What, then, of the case where on the information available to an applicant a constitutional motion is properly launched but it later becomes apparent (1) that there is a substantial dispute of fact or (2) that a claim for constitutional relief is no longer appropriate? As to the first of these two events, the emergence of a factual dispute does not render the proceedings an abuse where the alleged facts, if proved, would call for constitutional relief. Where this is so, the appropriate course will normally be for the applicant to apply promptly for an order that the conditional proceedings continue as though begun by writ and for any appropriate ancillary directions for pleadings, discovery and the like. Where appropriate, directions should also be given for expedition and a timetable set for the further steps in the proceedings. If the second of these two events happens, and constitutional relief is no longer appropriate, it would be an abuse of process for the applicant to continue to seek constitutional relief at all. In such a case the applicant should either abandon his motion entirely or, here again, seek a direction that the proceedings continue as though begun by writ. In this case, however, unlike the first case, the applicant will also need to amend the relief he seeks so as to abandon his claim to constitutional relief and instead seek to pursue his parallel remedy. Needless to say, on all such applications the court will exercise its discretion as it sees fit in all the circumstances. Moreover, the court may of its own motion give any of these directions.

The observations in Jaroo's case are not to be taken as differing from what is set out above. In Jaroo Lord Hope of Craighead said, at [2002] 1 AC 871, 886, para 39:

"If, as in this case, it becomes clear after the motion has been filed that the use of the [originating motion] procedure is no longer appropriate, steps should be taken without delay to withdraw the motion from the High Court as its continued use in such circumstances will also be an abuse."

Lord Hope's observation was directed at a case where proceedings seeking constitutional relief are properly started by way of originating motion and it later becomes apparent that a parallel remedy ("some other procedure either under the common law or pursuant to statute") is the appropriate remedy for the applicant. In Jaroo, where this situation arose, the applicant did not seek any direction of the character mentioned above. Instead he chose to adhere to what had become an unsuitable and inappropriate procedure: paragraph 36. It was in this circumstance that the Board agreed with the Court of Appeal that for the applicant to proceed as he did was an abuse of process: paragraph 40.

Their Lordships add that it is in everyone's interest that an applicant should be in a position to decide which procedure is appropriate, preferably before he starts his proceedings or, failing that, at the earliest opportunity thereafter. To this end observations made by Hamel-Smith JA in George v Attorney-General of Trinidad and Tobago (8 April 2003, unreported), para 19, are pertinent:

"The decision [in Jaroo] also serves to emphasise, in my view, that the State must at an early stage, ideally in response to any letter before action, make it known whether it will be challenging the allegations or not and on what basis. In that way, the aggrieved party would be in a position to make an informed choice of procedure. Failure to respond may lead to the State being condemned in costs, in the event that the party proceeds under s.14 of the Constitution only later to find that the facts were in issue and no constitutional principle of general significance to citizens is involved."