Takitota v. The Attorney General & Ors (Bahamas)  UKPC 11 (18 March 2009)
Privy Council Appeal No 71 of 2007
Atain Takitota Appellant
(1) The Attorney General
(2) Director of Immigration
(3) Minister of National Security
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 18th March 2009
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Present at the hearing:-
Lord Phillips of Worth Matravers
Lord Scott of Foscote
Lord Rodger of Earlsferry
Lord Brown of Eaton-under-Heywood
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[Delivered by Lord Carswell]
"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."
"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.
"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  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.
"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 . . ."
"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."