The Judicial Committee of the Privy Council Decisions

Takitota v. The Attorney General & Ors (Bahamas) [2009] UKPC 11 (18 March 2009)

Privy Council Appeal No 71 of 2007

Atain Takitota Appellant

v.

(1) The Attorney General

(2) Director of Immigration

(3) Minister of National Security

Respondent

FROM

THE COURT OF APPEAL OF

THE COMMONWEALTH OF THE BAHAMAS

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JUDGMENT OF THE LORDS OF THE JUDICIAL

COMMITTEE OF THE PRIVY COUNCIL

Delivered the 18^th March 2009

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Present at the hearing:-

Lord Phillips of Worth Matravers

Lord Scott of Foscote

Lord Rodger of Earlsferry

Lord Carswell

Lord Brown of Eaton-under-Heywood

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[Delivered by Lord Carswell]

1. The appellant Atain Takitota was detained in custody in The Bahamas for a period of over eight years. The Court of Appeal held that the whole period of his incarceration constituted unlawful detention. He was awarded a total of $500,000 damages, being $400,000 compensatory damages and $100,000 exemplary damages. The appellant has appealed to the Privy Council against the amount of the award, the only issue on the appeal before the Board.
2. The appellant appears to have arrived in The Bahamas in the early part of August 1992, though the exact date cannot be established with any certainty. He made the case in this action that he arrived as a lawful entrant, but that within a short time of his arrival he lost all his belongings, including his passport and money. The report headed "Foreign Persons Arrested" (Record, p 15), which is dated 14 August 1992, stated that the appellant was arrested by police officers on 12 August 1992 for an offence of vagrancy and detained at Central Police Station. It refers to his date of arrival in The Bahamas as 3 August 1992. On 18 August 1992 the Minister of Employment and Immigration signed an order for the detention and deportation of the appellant. He was kept in custody until 10 October 2000, when he was released on a bail bond. He was never charged with any offence or brought before a court in the whole of that period.
3. Sporadic efforts were made to establish the appellant's nationality, but it was not accepted by the Japanese authorities that his claim to be a Japanese national was correct, nor was he accepted to be Chinese. He simply remained in prison, with little or no attempt being made to bring about any resolution of his situation. As the Court of Appeal pointed out, the only ground stated in the detention order was that his presence in The Bahamas was "undesirable and not conducive to the public good."
4. The conditions in which he was detained were simply appalling. They were described by Longley J in a passage at para 28 of his judgment, the correctness of which has not been challenged:

"The plaintiff was made to sleep on a filthy floor with only a single blanket in which to cover himself or attempt to make a bed. Conditions were hot and steamy in the summer. There was a bad mosquito problem. The plaintiff testified that sometimes he was so hot that he had to put water on the floor and lay in it. There was no running water in the facility. The plaintiff was obliged to urinate and defecate in a bucket. He said the stench was such that it made him vomit on countless occasions causing him to lose his appetite. There were four buckets of urine and faeces in an 18 by eight foot room filled with twenty to thirty-five people at any given time. The evidence of the Superintendent of Prison, Mr. Culmer, confirmed these conditions. The plaintiff had to endure these conditions for roughly eight (8) years while sealed in a room at Maximum Security Prison with hardened criminals in Fox Hill. He said and I am satisfied that it must have happened, that he had been assaulted and attacked and taken advantage of by prisoners and was afraid to use the bucket provided by the authorities and so sometimes he urinated and defecated himself."

He attempted on at least three occasions to commit suicide. After hospital treatment he was again returned to prison, being transferred after some time to a minimum security unit and ultimately in 1998 to a detention centre. The Court of Appeal categorised his treatment not only as "less than humane" but as a "flagrant misuse/abuse of power."

5. The appellant commenced proceedings in October 2000 for damages (including aggravated and exemplary damages) for wrongful imprisonment and breach of his fundamental rights under the Constitution of The Bahamas. The trial took place before Longley J over a number of days between 27 January and 28 May 2004 and judgment was given on 18 June 2004. The judge held that the appellant's detention was initially unlawful, but ceased to be so after the making of the deportation order. He therefore awarded him the sum of $1000 for "the initial detention and false imprisonment". He held that in the absence of any evidence of highhandedness or "separate treatment meted out" to the appellant there was no need to consider exemplary damages. He further held that the overall period of detention had been excessive for the purpose of deporting the appellant and that there was a breach of his rights under Articles 17 and 19 of the Constitution. In order to mark this and to protect him against further breach the judge quashed the deportation order and directed that the appellant be afforded such status as would allow him to remain in The Bahamas and seek employment.
6. The Court of Appeal allowed the appellant's appeal against the judge's finding that his detention was lawful from the time of the signing of the deportation order and held that it had been unlawful throughout. This finding was not challenged before the Board. The Court of Appeal commenced their calculation with the sum of $1000 awarded by the judge for the initial arrest and detention up to the date of the deportation order. They had stated in para 19 of the judgment that –

"some of the papers adduced at the trial seemed to suggest that the appellant may have landed here on or about 14 August 1992, when he was arrested by them at Paradise Island for allegedly trying to break into a vehicle or, on another suggestion, vagrancy – see the report excerpted above."

The reference is to the Foreign Persons Arrested report of 14 August 1992, but the date of arrest is given in that report as 12 August, not 14 August. Again, they stated at para 85 that the judge awarded damages for the initial period, which he did not quantify, then they added the words "but which would not have exceeded four days on the evidence in the case." Their Lordships have been unable to find any evidence in the Record which establishes that that period was four days and do not know to what evidence the Court of Appeal referred. As the date of arrest is shown in the Foreign Persons Arrested report as 12 August, and there is no evidence to the contrary in the Record, their Lordships consider that they must proceed on the basis that a period of six days elapsed before the signature and service of the deportation order on 18 August 1992.

7. Going on the basis of four days' detention, the Court of Appeal stated in para 92 :

"We noted, however, that if we were to divide the quantum of damages awarded by the learned trial judge over that period (which we estimate to be four days) of the appellant's detention by the police which the learned judge found to be unlawful, it would work out at a rate of $250.00 per day."

They went on at paras 93-96:

"93. Using that same measurement of damages for the whole period during which the appellant was unlawfully detained — 8 years (leaving out the additional weeks beyond 18 August 2000 during which he would still have been in the Detention Centre) it would mean that the appellant would have been unlawfully detained for some 2,922 days (i.e. 6 ordinary years plus two leap years) at the rate of $250.00 per day which would total $730,500.00. That is the sum of compensatory damages using the base figure the learned judge apparently used and does not take into account any assessment for aggravated or exemplary damages.

94. In our judgment, if we are right in our conclusion that the whole of the period of the appellant's detention was unlawful, this case would clearly be within the first principle on which aggravated or exemplary damages should be awarded — see e g Rookes v Barnard [1964] AC 1129. At page 1226, Lord Devlin said —

'The first category is oppressive, arbitrary or unconstitutional action by the servants of the government.'

95. If we are right in our conclusions that the whole of the period of the appellant's detention was unlawful and that he was denied the right to have a court of law determine his guilt of the summary offence of illegal landing and as the learned judge himself found, the appellant's constitutional rights under Articles 17(1) and 19(1) were infringed throughout the 8 years and two months that he was detained, a sum in respect of exemplary damages is required. In this case, a figure of $100,000.00, we think would be sufficient by way of exemplary damages.

96. In light of the fact that the appellant will be receiving a lump sum we would reduce the figure for compensatory damages by $330,500.00 and award the sum of $400,000.00 as compensation for the loss of 8 years and two months of the appellant's life. We will not, however, reduce the sum of $100,000.00 by way of exemplary damages since that sum is awarded to show the strong disapproval of the courts for the conduct of the respondents in this case from the time of the appellant's arrest until this case is finally disposed of."

The court therefore affirmed the declarations made by Longley J and increased the award of damages to $500,000.

8. In considering these calculations, their Lordships are unable to found any reliable conclusion on the starting point taken by the Court of Appeal. The calculation in para 92 of their judgment of $250 per day as the basis of the judge's award assumed that the appellant was arrested on 14 August 1992, whereas if he was arrested on 12 August, as appears to have been the case, the initial period up to the date of the deportation order was six days. This would give, using the same arithmetical approach as the Court of Appeal, $166.66 and not $250 per day. If one accepted the approach which they adopted in para 93, 2922 days at a daily figure of $166.66 would amount to $486,980, not $730,500. In itself, the figure of 2922 days is inaccurate, for the appellant was detained for more than eight full years up to 10 October 2000, but even the extra 59 days would leave the total at only $496,813.
9. There are two further substantial difficulties in the calculation carried out by the Court of Appeal. First, the respondents' argument is quite correct that it is usual and proper to reduce the level of damages by tapering them when dealing with an extended period of unlawful imprisonment: cf Thompson v Commissioner of Police of the Metropolis [1998] 1 QB 498, 515, per Lord Woolf MR. Secondly, where a figure is to be awarded to represent a period of future financial loss or loss of amenities, it is correct to reflect in the calculation that the claimant will receive an immediate capital sum, being the present value of the future annual losses, which is materially less than their total. The same does not apply, however, when the award represents past loss or damage. In that case full restitution for the loss sustained by the claimant should ordinarily be awarded and there is no basis for reducing it on the ground that the claimant will receive a capital sum.
10. Miss Williams QC for the appellant submitted that the compensatory award was incorrect in principle and in amount, and also that the award for exemplary damages was excessively low and that a further and separate award should have been made for breach of constitutional rights. She argued that the Court of Appeal had omitted to include any element for aggravation in their calculation of the compensatory damages and that it was erroneous to reduce the sum to reflect the fact that the appellant was to receive a lump sum. Mr Dingemans QC for the respondents submitted, on the other hand, that the court had taken the element of aggravation into account. He argued that the reduction to $400,000 reflected a proper degree of tapering of damages for a long period of detention and that the sum for compensatory damages was not so low that the Board should amend it on appeal.
11. In their reference to aggravated damages in para 94 of their judgment the Court of Appeal appear to have equated them with exemplary damages, whereas they form a quite distinct head of damage based on altogether different principles. In awarding compensatory damages the court may take account of an element of aggravation. For example, in a case of unlawful detention it may increase the award to a higher figure than it would have given simply for the deprivation of liberty, to reflect such matters as indignity and humiliation arising from the circumstances of arrest or the conditions in which the claimant was held. The rationale for the inclusion of such an element is that the claimant would not receive sufficient compensation for the wrong sustained if the damages were restricted to a basic award. The latter factor, the conditions of imprisonment, is directly material in the present case, and it would be not merely appropriate but desirable that the award of compensatory damages should reflect it. It may be that the Court of Appeal had it in mind when they expressed their intention in paragraph 90 to compensate the appellant "for the loss of more than 8 years of his life and for the misery which he endured by being treated in a less than humane way." They did not spell it out in their judgment, though they were not obliged to do so: see Subiah v Attorney General of Trinidad and Tobago [2008] UKPC 47, para 11. Their Lordships do not find it possible to ascertain with sufficient clarity whether the Court of Appeal included any element of aggravation in their calculation of the compensatory award, and if so, how much represents that element. Although they stated in para 93 of their judgment that the sum of compensatory damages "does not take into account any assessment for aggravated or exemplary damages", it is not possible to determine whether in reaching that figure they had in fact taken account of aggravating factors.
12. The award of exemplary damages is a common law head of damages, the object of which is to punish the defendant for outrageous behaviour and deter him and others from repeating it. One of the residual categories of behaviour in respect of which exemplary damages may properly be awarded is oppressive, arbitrary or unconstitutional action by the servants of the government, the ground relied upon by the Court of Appeal in the present case. It serves, as Lord Devlin said in Rookes v Barnard [1964] AC 1229 at 1223, to restrain such improper use of executive power. Both Lord Devlin in Rookes v Barnard and Lord Hailsham of St Marylebone LC in Broome v Cassell & Co Ltd [1972] AC 1027 at 1081 emphasised the need for moderation in assessing exemplary damages. That principle has been followed in The Bahamas (see Tynes v Barr (1994) 45 WIR at 26), but in Merson v Cartwright and the Attorney General [2005] UKPC 38 the Privy Council upheld an award of $100,000 exemplary damages, which they regarded as high but within the permissible bracket.
13. The award of damages for breach of constitutional rights has much the same object as the common law award of exemplary damages. The relevant provisions of the Bahamian Constitution are Article 17 (inhuman or degrading treatment) and Article 19 (deprivation of personal liberty). The basis of the jurisdiction to award such damages was set out in Attorney General of Trinidad and Tobago v Ramanoop [2005] UKPC 15, [2006] 1 AC 328. Lord Nicholls of Birkenhead, giving the judgment of the Board, said at paras 17-20:

"17. 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.

18. 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.

19. 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.

20. 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 . . ."

14. In Merson the Board regarded the same principles as applying to cases brought in The Bahamas for redress under the comparable provisions of the Constitution. Lord Scott of Foscote said at para 18 that the purpose is not to teach the executive not to misbehave, but to vindicate the right of the complainant, whether a citizen or a visitor, to carry on his or her life in The Bahamas free from unjustified interference, mistreatment or oppression. The Privy Council returned to the subject in Inniss v Attorney General of Saint Christopher and Nevis [2008] UKPC 42, where Lord Hope of Craighead, giving the judgment of the Board, cited the guidance given by the Supreme Court of New Zealand in Taunoa v Attorney General [2007] 5 LRC 680, a case brought for damages for breach of the New Zealand Bill of Rights. He related the purpose of vindication of the claimant's rights to the effect of an award in deterrence of executive wrongdoing in a passage at para 27:

"The purpose of the award, whether it is made to redress the contravention or as relief, is to vindicate the right. It is not to punish the Executive. But vindication involves an assertion that the right is a valuable one, as to whose enforcement the complainant herself has an interest. Any award of damages for its contravention is bound, to some extent at least, to act as a deterrent against further breaches. The fact that it may be expected to do so is something to which it is proper to have regard."

15. Their Lordships consider that it would not be appropriate to make an award both by way of exemplary damages and for breach of constitutional rights. When the vindicatory function of the latter head of damages has been discharged, with the element of deterrence that a substantial award carries with it, the purpose of exemplary damages has largely been achieved. To make a further award of exemplary damages, as the appellant's counsel sought, would be to introduce duplication and contravene the prohibition contained in the proviso to Article 28(1) of the Constitution. They are of the opinion that the sum of $100,000 is justifiable on the facts of the case as an award of constitutional or vindicatory damages.
16. Their Lordships accordingly consider that that part of the award made by the Court of Appeal can be upheld and should not be disturbed. They are unable, however, to regard the figure of either $730,500 or $400,000 by way of compensatory damages as being sufficiently securely based on the facts and the law. The Board was invited by the appellant's counsel itself to revise the amount of the award. In line with its established practice, however, it is reluctant to follow this course, for it has repeatedly expressed the view that local courts are very much better placed than the Board to say what is appropriate by way of damages, having regard to the conditions in the country concerned. Their Lordships therefore consider that that part of the award should be remitted to the Court of Appeal for reassessment.
17. The court should determine what they consider to be an appropriate figure to reflect compensation for the long period of wrongful detention of the appellant, taking into account any element of aggravation they think proper, reflecting the conditions of his detention and, in their own words, the misery which he endured. In assessing the proper figure for compensation for such long-term detention, they should take into account that any figure they might regard as appropriate for an initial short period, if extrapolated, should ordinarily be tapered, as their Lordships have pointed out in para 9 above. The final figure for compensatory damages should therefore amount to an overall sum representing appropriate compensation for the period of over eight years' detention, taking account of the inhumane conditions and the misery and distress suffered by the appellant.
18. The sum of $100,000, representing constitutional or vindicatory damages, should remain undisturbed and should be added to the amount reassessed for compensatory damages to make up the final award of damages to the appellant. Pending final resolution of the award, it would be very desirable that a substantial interim payment should be made to the appellant.
19. Their Lordships will accordingly humbly advise Her Majesty that the appeal should be allowed and the case remitted to the Court of Appeal to reconsider what sum should be awarded by way of compensatory damages, in the light of the Board's expressions of opinion. The appellant is to have his costs of the appeal, the costs order of the Court of Appeal remaining undisturbed.