Takitota v Attorney General and Others
| Jurisdiction | UK Non-devolved |
| Judge | Lord Carswell |
| Judgment Date | 18 March 2009 |
| Neutral Citation | [2009] UKPC 11 |
| Court | Privy Council |
| Docket Number | Appeal No 71 of 2007 |
| Date | 18 March 2009 |
[2009] UKPC 11
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
Privy Council
[Delivered by Lord Carswell]
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.
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.
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."
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."
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.
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.
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,...
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