Bernard v Attorney General of Jamaica
| Jurisdiction | UK Non-devolved |
| Judge | Lord Steyn |
| Judgment Date | 07 October 2004 |
| Neutral Citation | [2004] UKPC 47 |
| Court | Privy Council |
| Docket Number | Appeal No. 30 of 2003 |
| Date | 07 October 2004 |
[2004] UKPC 47
Present at the hearing:-
Lord Bingham of Cornhill
Lord Steyn
Lord Millett
Lord Scott of Foscote
Lord Carswell
Privy Council
[Delivered by Lord Steyn]
The central issue in this case is whether it was open to Mrs Justice McCalla, the trial judge, on the evidence placed before her to find that the Attorney-General of Jamaica was vicariously liable for the unlawful shooting on 11 February 1990 of Mr Clinton Bernard by a constable of the Jamaica Constabulary Force. In a reserved judgment dated 9 June 2000 the trial judge found in favour of Mr Bernard on this issue and gave judgment in his favour for substantial damages. The Attorney-General appealed to the Court of Appeal on the issue of vicarious liability. In a judgment dated 9 November 2001 the Court of Appeal (Bingham, Walker and Panton JJA) unanimously concluded that on the evidence vicarious liability had not been established and set aside the first instance judgment. The present appeal to the Privy Council challenges that decision of the Court of Appeal.
The shooting incident
This was a witness action. The evidence led was meagre. There was no disclosure of documents by the state. On the other hand, a number of primary facts were not disputed. They can be summarised as follows. At about 9pm on 11 February 1990 the plaintiff, a man aged 32 years, and his parents went to the Central Sorting Office in Kingston to make an overseas call. He joined a queue of about 15 people who were waiting to phone. Eventually his turn came. The plaintiff dialled. Suddenly a man intervened. According to the plaintiff's oral evidence the man announced "police" and demanded the phone which the plaintiff was then using. According to the oral evidence of his mother the man said "I am going to make a long distance call" and added "boy leggo this, police". The man making the demand was in fact constable Paul Morgan ("the constable").
The plaintiff refused to release the phone. The constable said "boy me naw join no line, give me the phone". It is convenient here to interpose the fact that at the trial a police sergeant, a witness called on behalf of the Attorney-General, testified that –
"If there is an emergency situation and [an] officer needs to use the phone I would consider it normal for him to go to the head of the line and demand to use the phone as a matter of urgency."
In any event, the plaintiff was determined not to let go of the phone. The constable slapped the plaintiff on the hand and then shoved him in his chest. When the plaintiff still resisted the constable took two steps backwards, pulled out a service revolver, pointed it at the plaintiff, and fired at his head at point blank range. The bullet hit the plaintiff to the left side of his head, leaving entry and exit wounds in his skull.
The injury rendered the plaintiff unconscious for a short period. He was taken to a nearby hospital by ambulance. The plaintiff awoke in the casualty department of the hospital. He was surrounded by police officers who included Constable Morgan. In the hospital Constable Morgan placed the plaintiff under arrest for allegedly assaulting a police officer and handcuffed him to his bed.
Subsequent events
Criminal charges were brought against the plaintiff. After a few months these charges were withdrawn. In the meantime the constable was dismissed from the Jamaica Constabulary Force with effect from 17 March 1990. The ground of his dismissal was that he had been absent from duty for over 48 hours. It seems likely that he became aware of proposed criminal proceedings against him for wounding with intent, contrary to section 20 of the Offences against the Person Act. In any event, the constable left the island and his whereabouts were and are unknown.
The proceedings
On 28 January 1991 the plaintiff commenced an action against two defendants, viz the constable and the Attorney-General of Jamaica as the person appointed to be sued in civil proceedings against the Crown under the Crown Proceedings Act. The constable could not be served and he did not enter an appearance. The action proceeded against the Attorney-General in his representative capacity.
Section 3(1) of the Crown Proceedings Act provides:
"Subject to the provisions of this Act, the Crown shall be subject to all those liabilities to tort to which, if it were a private person of full age and capacity, it would be subject –
(a) in respect of torts committed by its servants or agents;
(b) …
(c) …
Provided that no proceedings shall lie against the Crown by virtue of paragraph (a) in respect of any act or omission of a servant or agent of the Crown unless the act or omission would, apart from the provisions of this Act, have given rise to a cause of action in tort against that servant or agent or his estate."
The plaintiff's pleaded case was based on a summary of the material facts already described. The defendant did not dispute the shooting incident. It was common ground that in Jamaica a constable is an employee of the Crown. The defendant pleaded that –
"the acts of [Constable Morgan] on February 11th 1990 at the Central Sorting Office, South Camp Road, Kingston, Jamaica were done entirely for [his] … benefit … and he was not acting in the course of his employment or for his employer's benefit."
The statutory framework of the case was as follows. Section 4 of the Constabulary Force Act requires every constable to swear an oath that he would well and truly serve the Queen in the office of constable –
"without favour or affection, malice or ill-will and that I will see and cause Her Majesty's Peace to be kept and preserved; and that I will prevent, to the utmost of my power, all offences against the same; and that while I shall continue to hold the said office I will, to the best of my skill and knowledge, discharge all the duties thereof faithfully …"
The duties of the police are set out in section 13 as follows:
"The duties of the Police under this Act shall be to keep watch by day and night, to preserve the peace, to detect crime, apprehend or summon before a Justice persons found committing any offence or whom they may reasonably suspect of having committed any offence, or who may be charged with having committed any offence, to serve and to execute all summonses, warrants, subpoenas, notices and criminal processes issued from any Court of Criminal Justice or by any Justice in a criminal matter and to do and perform all the duties appertaining to the office of a constable …"
Section 30 provides:
"If any person shall assault, obstruct, hinder or resist, or use any threatening or abusive and calumnious language or aid or incite any other person to assault, obstruct, hinder, or resist any constable in the execution of his duty, every such offender shall be liable to a fine not exceeding two thousand dollars."
The Firearms Act contains detailed prohibitions on the carrying of firearms but section 52 provides in paragraph (e) that the Act shall not apply inter alia "to any constable". To this recitation of the applicable statute law it must be added that in practice, in Jamaica, a constable such as Constable Morgan, may take a loaded firearm issued to him home and he may carry that firearm while he is off duty. That was part of the context of the case before the judge.
The judgment of McCalla J
Having reviewed the oral evidence on the issue of vicarious liability in some detail the judge found and held:
"The First Defendant demanded the use of the telephone by identifying himself as being a police officer albeit in a most crude and vulgar manner. The witness for the defence has admitted that it would be within the scope of a police officer's duty to demand the use of a telephone as a matter of urgency if the necessity arose.
Although no evidence has been adduced that at the relevant time the first defendant was on duty, in the absence of evidence to the contrary the reasonable inference to be drawn is that his demand was somehow connected to his duties. The act of shooting the plaintiff was unlawful and clearly did not fall within any of his prescribed duties but was nevertheless in furtherance of his demand. He subsequently arrested and charged the plaintiff for assaulting him and by that act he could only have been asserting that at the material time he was executing his duties as a police officer.
In these circumstances I find that the Attorney-General is vicariously liable for the action of the first defendant. The plaintiff has established his case on a balance of probabilities and the defence fails."
The judge awarded to the plaintiff damages against the Attorney-General for assault, false imprisonment and malicious prosecution in the sum of (1) general damages of $2,230,000 with interest on $2,000,000 at the rate of 6% per annum from 1st February 1991 to 9th June 2000; (2) special damages in the sum of $318,000.00 with interest at the rate of 6% per annum from 11 February 1990 to 9th June 2000.
The Court of Appeal judgment
The Court of Appeal, with evident reluctance, felt compelled to allow the appeal. Bingham JA said:
"In the instant case, the constable was in possession of a service revolver issued to him by his superior officer which could be regarded as authorising him to be at large in carrying out his sworn duty to uphold the law. By his unlawful action in shooting and injuring the respondent the constable could not be seen as acting in the lawful execution of his duty. His conduct was of such a nature as fell outside the class of acts authorised by section 13 of the Constabulary Force Act, and did not render the state as his employer vicariously liable to the respondent."
Walker JA observed:
"… the trial judge laid great store on two...
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