Cleare v The Attorney General and Others
| Jurisdiction | UK Non-devolved |
| Judge | Lord Wilson |
| Judgment Date | 04 December 2017 |
| Neutral Citation | [2017] UKPC 38 |
| Court | Privy Council |
| Docket Number | Privy Council Appeal No 0070 of 2014,Appeal No 0070 of 2014 |
| Date | 04 December 2017 |
[2017] UKPC 38
Lady Hale
Lord Kerr
Lord Wilson
Lord Hughes
Lord Lloyd-Jones
Privy Council Appeal No 0070 of 2014
From the Court of Appeal of the Commonwealth of the Bahamas
Tort - Assault — Police — Arrest — Appeal — Whether Court of Appeal erred in dismissing appeal against dismissal of 2 claims of assault — Whether judge erred by failing to consider medical evidence adduced in support of assault claims — Appeal allowed — Constitution of The Bahamas, A.17(1).
Appellant
Katherine Deal
Rowan Pennington-Benton
(Instructed by Tynes & Tynes and Harcus Sinclair LLP)
Respondents
Navjot Atwal
(Instructed by Charles Russell Speechlys LLP)
Heard on 17 October 2017
Mr Cleare appeals against part of the order of the Court of Appeal of the Commonwealth of the Bahamas (Allen P and Blackman and Conteh JJA) dated 14 March 2013. The part against which he appeals is its dismissal of his appeal against part of an order made by Longley J (“the judge”) on 23 June 2011.
The claims which the judge then determined arose out of the appellant's arrest by the police on 17 January 2007 and of his detention in police custody at the Lucaya Police Station until 22 January 2007. The appellant's claims were brought against four defendants, now the respondents, namely the Attorney General, the Commissioner of Police, Police Sergeant Rahming and Police Sergeant Bowe. One of his claims, conceded by the respondents, was that his detention from 19 to 22 January had been unlawful. In that regard the trial judge awarded to him a sum by way of damages which the Court of Appeal increased. In the appeal to the Board nothing turns on the appellant's claim for unlawful detention. Instead the Board is concerned with two other of his claims. The first is that on 17 January, when following his arrest the police escorted him from the police station to his apartment, Sergeant Rahming assaulted and beat him by punching him in the face and below the neck. The second is that, on about the same day, in the course of an interview back at the police station, Sergeant Bowe cuffed his hands behind his back and, together with another officer, forced plastic bags tightly over his head, thereby depriving him of oxygen and subjecting him to inhuman and degrading treatment contrary to article 17(1) of the Constitution. The judge dismissed these claims. He found that the appellant had fabricated both of them. It is against the Court of Appeal's dismissal of his appeal against the dismissal of these two claims of assault that the appellant brings the present appeal.
The appellant frankly acknowledges the weight of the burden which he carries in bringing to the Board an appeal of this character. As it noted in Central Bank of Ecuador v Conticorp SA [2015] UKPC 11, para 4, the Board “will as a matter of settled practice decline to interfere with concurrent findings of pure fact, save in very limited circumstances”. At para 5 it reminded itself of the inherent advantage enjoyed by the trial judge over courts of appeal in the determination of facts. At para 6, however, it quoted a passage in the speech of Lord Thankerton in Thomas v Thomas [1947] AC 484 at 488 to the effect that the reasons given by the trial judge might justify a conclusion that he had not made proper use of his inherent advantage. And at para 8 the Board stressed the need for the judge to have tested the evidence against the background of the available material.
In the opinion of the Board the structure of the judge's judgment in the present case is unorthodox. But no complaint was made about it on the appellant's behalf in the Court of Appeal; and in its judgment, delivered by Allen P, that court made no mention of it.
The structure of the judge's judgment was to express a conclusion that the appellant's claims should be dismissed prior to addressing certain medical evidence upon which the appellant heavily relied.
(a) Between paras 1 and 27 of his judgment the judge recited the evidence given in relation to all the various claims by the appellant and by five of the witnesses called on behalf of the respondents, namely Police Inspector Hamilton, Police Sergeant Rahming, Police Sergeant Bowe, a man with whom the appellant had shared a cell at the police station and a former girlfriend of the appellant.
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(b) Then, in para 28, the judge recorded that the appellant had called three doctors to give evidence on his behalf and at that point he correctly noted that he was required to decide the case on the entirety of the evidence before him. But that is not what he proceeded to do. For some reason he postponed consideration of the medical evidence.
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(c) Instead the judge proceeded to assess the appellant's credibility. Between paras 31 and 35 he said that he accepted “nothing” that the appellant had said as being true; that it seemed accurate to describe him as a “con artist”; and that he rejected his testimony.
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(d) Thereupon the judge addressed each of the appellant's various claims.
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(e) Between paras 44 and 47 he addressed the two claims of assault. At para 46 he said that they “must fail” and that the appellant had concocted them. At para 47 the judge said:
“I would dismiss these claims. I will return to the matter of the medical evidence.”
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(f) It was only from paras 68 to 88 that the judge ultimately examined the medical evidence and concluded that it was “not of much value” to the appellant.
The judge was wrong to conclude that the claims of assault should be dismissed prior to considering the medical evidence adduced in support of them. More particularly, he was wrong to reject the appellant's evidence as untrue, indeed as fabricated, without considering it in the light of the medical evidence which was said to corroborate it. In this respect the Board refers to three authorities in the Court of Appeal of England and Wales. In Armagas Ltd v Mundogas SA (The “Ocean Frost”) [1985] 1 Lloyds Rep 1, at 57, Robert Goff LJ observed that it was of the first importance to test the veracity of a witness by reference to the facts ascertained independently of his testimony. In Mibanga v Secretary of State for the Home Department [2005] EWCA Civ 367, [2005] INLR 377, Buxton LJ held, at para 30:
“The adjudicator's failing was that she artificially separated the medical evidence from the rest of the evidence and reached conclusions as to credibility without reference to that medical evidence; and then, no doubt inevitably on that premise, found that the medical evidence was of no assistance to her. That was a structural failing …”
Indeed in para 32 Buxton LJ described it as an error of law or principle; see also paras 24 and 25 of the judgments. So the court ordered that the appellant's claim for asylum be reheard. In Jakto Transport Ltd v Hall [2005] EWCA Civ 1327 the trial judge found that the employee's accident at work had been caused by a defective tool. The basis of the employer's appeal was that the judge had expressed a provisional conclusion to that effect before considering the evidence of Mr Glenn, the joint expert, who was a consultant engineer. In paras 28 and 29 of her judgment, Smith LJ held:
“28. … that was an error of approach.
29. Where, as here, the expert evidence was relevant to the way in which the accident … might have happened, it was incumbent upon the judge to consider it at the time when he was reaching his conclusions on the credibility of the witnesses.”
Nevertheless, with hesitation, the court proceeded to find that Mr Glenn's evidence, when examined in detail, was not such as to lead it to require a judge to re-assess the employee's evidence by reference to it.
The Board considers that, unless it is satisfied that, even if the medical evidence adduced by the appellant had been addressed by the judge prior to his assessment of the appellant's evidence, it could not have led him to do otherwise than to reject his evidence, the claims of assault should be ordered to be reheard.
On any view of the medical evidence adduced on his behalf, the appellant was suffering injuries to the brain and neck in the weeks and months following his detention by the police. The judge was required only to decide whether they had occurred as a result of the alleged assaults and, were he to reject that assertion, he had no obligation to decide how they had otherwise occurred. Nevertheless, in reaching the requisite decision, it was helpful for him to consider how they might otherwise have occurred. In that regard the evidence before him identified two possibilities: that the injuries were the consequence of a serious accident which the appellant had suffered at work at the container port at Freeport in 2002 and/or that they were the consequence of his actions in his cell during his detention, in which, according to evidence given by his cell-mate which he denied, he had knocked his head against the bars in order to generate lumps which he hoped to ascribe to police brutality. It is clear from the judge's judgment that he regarded each of these possibilities, particularly the former, as a serviceable explanation for the injuries.
The three doctors who gave evidence on behalf of the appellant were
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(a) Dr Bethel, a general practitioner who attended him on various occasions from 2002 to 2004 and, in particular, on 25 January 2007 following his release from custody;
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(b) Dr Albury-Harris, a general practitioner who, at the request of the appellant's employers at the port, attended him on occasions in 2005 and 2006; and, most importantly,
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(c) Dr McDowell, a consultant neurosurgeon, who examined him on 2 February, 23 February and 9 March 2007.
Dr Bethel gave evidence that he had first seen the appellant on 31 May 2002, about a week after the accident at the container port,...
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