Joseph Brice v Attorney General of Anguilla

• Jurisdiction: Anguilla
• Judge: ‘Innocent, J.’
• Judgment Date: 02 June 2022
• Neutral Citation: AI 2022 HC 006
• Docket Number: CLAIM NO. AXAHCV 2014/0076
• Court: High Court (Saint Christopher, Nevis And Anguilla)

BETWEEN:

Joseph Brice

Claimant

and

Attorney General of Anguilla

Defendant

CLAIM NO. AXAHCV 2014/0076

THE EASTERN CARIBBEAN SUPREME COURT

Constitutional Motion — Sections 1(a), 3(1)(f), 3(4) and 16 of the Anguilla Constitution Order, 1982 — Wrongful arrest — Claimant alleging breach of rights guaranteed under section 3(1)(f) of Anguilla Constitution Order, 1982 — Claimant alleging that decision to effect his arrest unreasonable in the Wednesbury sense — Claimant also alleging that his arrest was unlawful on the basis of a breach of the provisions of section 24(5) of the Police and Criminal Evidence Act (‘PACE’) — Whether section 24(5) of PACE received or incorporated in Anguillian law — Section 47 Criminal Procedure Act R.S.A. c. 150 — Section 46 Interpretation and General Clauses Act R.S.A c. I25 — Sections 3 and 7 West Indies Act, 1967 — Whether claimant entitled to redress under the Constitution for breach of his rights guaranteed by section 3(1)(f) of the Anguilla Constitution Order, 1982 on the basis of breaches of the provisions of PACE

Appearances:

Mr. Joseph Brice in person

Mr. Dwight Horsford, Honourable Attorney General with him Mr. Sasha Courtney Crown Counsel Attorney General's Chambers of counsel for the Defendant

‘Innocent, J.’

1 The claimant, Mr. Joseph Brice (Mr. Brice) had filed an Originating Motion (the Motion) on 3 ^rd October 2014 seeking interim relief, namely, that the retrial of Indictment No 4 of 2011 be stayed pending the final determination of the Motion, and also that the trial of Indictment No. 5 of 2013 be stayed pending the final determination of the said Motion.

2 Mr. Brice also sought declaratory relief under the Anguilla Constitution Order, 1982 (the ‘Constitution’) to the effect that his arrest on 7 ^th January 2009 was unlawful for want of necessity for the arrest; that his arrest on 18 ^th September 2009 was unlawful for want of necessity for such arrest; that his rights guaranteed under the Constitution were infringed by reason of such unlawful arrest; an order that the last of the two indictments be quashed on the basis of the alleged infringement of his rights guaranteed under the Constitution; and compensation for the said breach of his rights guaranteed under the Constitution pursuant to section 3(4) thereof.

3 The Motion came on for hearing before Mathurin J. on 20 ^th October 2014. The Motion was dismissed summarily by the learned judge. There was no hearing of the claim for relief under the Constitution on its merits. Mr. Brice appealed to the Court of Appeal against the decision of Mathurin J. The Court of Appeal allowed his appeal and remitted the matter to the High Court for hearing.

4 When the Motion came on for hearing before this Court as differently constituted, Mr. Brice quite understandably sought leave of the court to amend his Motion and supporting documents to reflect what was evidently a substantial change in the landscape since the filing of the Motion. By the time that the Motion came on for rehearing before this Court, Mr. Brice had already been convicted on both indictments. In addition, he was retried on one of the indictments and convicted thereon and sentenced to a term of imprisonment.

5 Mr. Brice was granted leave to amend the Motion and to file additional affidavit evidence in light of the substance of the Motion as originally filed having been overtaken by subsequent events.

6 Pursuant to the court's order granting leave to amend, Mr. Brice filed an amended motion wherein he included claims for aggravated damages, vindicatory damages not hitherto included in the Motion as it was in its previous form. Notwithstanding the added claims not canvassed in the original motion, Mr. Brice relied wholly and substantially on the same grounds as the previous motion.

7 Mr. Brice grounded his claim for redress under the Constitution on the basis that the police authority, in this case officers of the Royal Anguilla Police Force (‘RAPF’), had exceeded or acted outside of the powers conferred on them by virtue of section 356 of the Criminal Code as it relates to police powers of summary arrest, that is, arrest without warrant.

8 The pith and gravamen of Mr. Brice's case in relation to the unlawfulness of his arrests was that in neither instance was there any evidence at all of the necessity of or reasonable grounds for believing that the arrests were necessary. According, to Mr. Brice, in effecting his arrests, the police authority did not take into consideration the provisions of section 24(5) of PACE and their conduct in effecting his summary arrests was contrary to the dictates of section 24(5) of PACE.

9 In addition, Mr. Brice claimed that the actions of the officers of the RAPF in effecting his summary arrest was unreasonable in the ‘Wednesbury’ sense and was contrary to the provisions of section 24(5) of PACE as supplemented by common law powers of arrest. Mr. Brice's contention on this point was that even if the ‘necessity criteria’ had been complied with, the decision to effect his summary arrest was still subject to review on account of its unreasonableness.

10 In support of the foregoing contention Mr. Brice relied on the decision in Mark Richardson v The Chief Constable of West Midlands Police 1 where it was held that ex post facto justification is not acceptable as a means to retrospectively explain or justify an arrest.

11 Mr. Brice argued, by extension, that the case of Mark Richards supports the proposition that where a police officer suspects that an offence has been committed in order for the arrest of a citizen to be lawful, the following considerations must apply, namely, there must be reasonable grounds for suspecting that the person is guilty of it; the grounds for the arrest must be one of those listed in section 24(5) of

PACE; and the police officer must have reasonable grounds for believing that it is ‘necessary’ to arrest the person

12 For the purposes of exposition, it will be necessary to set out in full the provisions of section 24 of PACE which deals with the power of constables to effect an arrest without warrant. Section 24 reads:

“(1) A constable may arrest without a warrant—

(a) anyone who is about to commit an offence;

(b) anyone who is in the act of committing an offence;

(c) anyone whom he has reasonable grounds for suspecting to be about to commit an offence;

(d) anyone whom he has reasonable grounds for suspecting to be committing an offence.

(2) If a constable has reasonable grounds for suspecting that an offence has been committed, he may arrest without a warrant anyone whom he has reasonable grounds to suspect of being guilty of it.

(3) If an offence has been committed, a constable may arrest without a warrant—

(a) anyone who is guilty of the offence;

(b) anyone whom he has reasonable grounds for suspecting to be guilty of it.

(4) But the power of summary arrest conferred by subsection (1), ( 2) or (3) is exercisable only if the constable has reasonable grounds for believing that for any of the reasons mentioned in subsection (5) it is necessary to arrest the person in question.

(5) The reasons are—

(a) to enable the name of the person in question to be ascertained (in the case where the constable does not know, and cannot readily ascertain, the person's name, or has reasonable grounds for doubting whether a name given by the person as his name is his real name);

(b) correspondingly as regards the person's address;

(c) to prevent the person in question—

(i) causing physical injury to himself or any other person;

(ii) suffering physical injury;

(iii) causing loss of or damage to property;

(iv) committing an offence against public decency (subject to subsection (6)); or

(v) causing an unlawful obstruction of the highway;

(d) to protect a child or other vulnerable person from the person in question;

(e) to allow the prompt and effective investigation of the offence or of the conduct of the person in question;

(f) to prevent any prosecution for the offence from being hindered by the disappearance of the person in question.

(6) Subsection (5)(c)(iv) applies only where members of the public going about their normal business cannot reasonably be expected to avoid the person in question.”

13 Mr. Brice's argument that the provisions of section 24(5) of PACE were received as part of the law of Anguilla was grounded on the provisions of section 47 of the Criminal Procedure Act and the Common Law (Declaration of Application) Act. In support of his argument in favour of finding that the provisions of PACE were received as part of the law of Anguilla, Mr. Brice relied on the decisions of Eversley Thompson v The Queen 2 and Shayne Richardson v The Attorney General 3.

14 Mr. Brice placed what appeared to be substantial emphasis on the dicta of Small Davis J. (Ag) in the case of Shayne Richardson 4 to support his contention that the provisions of PACE could be applied as part of the law of Anguilla. The learned judge in that case had sought guidance from the Codes of Practice made under PACE; however, it does not appear, without making any observations as to the merits of the approach adopted by the judge in that case, that the learned judge expressly adjudged that the provisions of PACE and the Codes of Practice made thereunder were received or imported as part of the laws of Anguilla. In Shayne Richardson the learned judge in applying the provisions of section 47 of the CPA, in the absence of specific provisions in the domestic Police Act, said:

“Neither the Anguilla Police Act nor the Police Regulations set out the procedure or guidelines for a police officer exercising his stop and search power. Section 47 of the Criminal Procedure Act provides that “ All other matters of procedure not herein nor in any other Act expressly provided for shall be regulated, as to the admission thereof, by the law of England, and the practice of the Superior...